Gonzales v. Raich

(Slip Opinion) OCTOBER TERM, 2004 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GONZALES, ATTORNEY GENERAL, ET AL. v. RAICH ET

AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 03–1454. Argued November 29, 2004—Decided June 6, 2005

California’s Compassionate Use Act authorizes limited marijuana use

for medicinal purposes. Respondents Raich and Monson are Califor-

nia residents who both use doctor-recommended marijuana for seri-

ous medical conditions. After federal Drug Enforcement Administra-

tion (DEA) agents seized and destroyed all six of Monson’s cannabis

plants, respondents brought this action seeking injunctive and de-

claratory relief prohibiting the enforcement of the federal Controlled

Substances Act (CSA) to the extent it prevents them from possessing,

obtaining, or manufacturing cannabis for their personal medical use.

Respondents claim that enforcing the CSA against them would vio-

late the Commerce Clause and other constitutional provisions. The

District Court denied respondents’ motion for a preliminary injunc-

tion, but the Ninth Circuit reversed, finding that they had demon-

strated a strong likelihood of success on the claim that the CSA is an

unconstitutional exercise of Congress’ Commerce Clause authority as

applied to the intrastate, noncommercial cultivation and possession of

cannabis for personal medical purposes as recommended by a patient’s

physician pursuant to valid California state law. The court relied

heavily on United States v. Lopez, 514 U. S. 549, and United States v.

Morrison, 529 U. S. 598, to hold that this separate class of purely lo-

cal activities was beyond the reach of federal power.

Held: Congress’ Commerce Clause authority includes the power to pro-

hibit the local cultivation and use of marijuana in compliance with

California law. Pp. 6–31.

(a) For the purposes of consolidating various drug laws into a com-

prehensive statute, providing meaningful regulation over legitimate

sources of drugs to prevent diversion into illegal channels, and

2 GONZALES v. RAICH

Syllabus

strengthening law enforcement tools against international and inter-

state drug trafficking, Congress enacted the Comprehensive Drug

Abuse Prevention and Control Act of 1970, Title II of which is the

CSA. To effectuate the statutory goals, Congress devised a closed

regulatory system making it unlawful to manufacture, distribute,

dispense, or possess any controlled substance except as authorized by

the CSA. 21 U. S. C. §§841(a)(1), 844(a). All controlled substances

are classified into five schedules, §812, based on their accepted medi-

cal uses, their potential for abuse, and their psychological and physi-

cal effects on the body, §§811, 812. Marijuana is classified as a

Schedule I substance, §812(c), based on its high potential for abuse,

no accepted medical use, and no accepted safety for use in medically

supervised treatment, §812(b)(1). This classification renders the

manufacture, distribution, or possession of marijuana a criminal of-

fense. §§841(a)(1), 844(a). Pp. 6–11.

(b) Congress’ power to regulate purely local activities that are part

of an economic “class of activities” that have a substantial effect on

interstate commerce is firmly established. See, e.g., Perez v. United

States, 402 U. S. 146, 151. If Congress decides that the “ ‘total inci-

dence’ ” of a practice poses a threat to a national market, it may regu-

late the entire class. See, e.g., id., at 154–155. Of particular rele-

vance here is Wickard v. Filburn, 317 U. S. 111, 127–128, where, in

rejecting the appellee farmer’s contention that Congress’ admitted

power to regulate the production of wheat for commerce did not au-

thorize federal regulation of wheat production intended wholly for the

appellee’s own consumption, the Court established that Congress can

regulate purely intrastate activity that is not itself “commercial,” i.e.,

not produced for sale, if it concludes that failure to regulate that class

of activity would undercut the regulation of the interstate market in

that commodity. The similarities between this case and Wickard

are striking. In both cases, the regulation is squarely within Con-

gress’ commerce power because production of the commodity meant

for home consumption, be it wheat or marijuana, has a substantial ef-

fect on supply and demand in the national market for that commod-

ity. In assessing the scope of Congress’ Commerce Clause authority,

the Court need not determine whether respondents’ activities, taken

in the aggregate, substantially affect interstate commerce in fact, but

only whether a “rational basis” exists for so concluding. E.g., Lopez,

514 U. S., at 557. Given the enforcement difficulties that attend dis-

tinguishing between marijuana cultivated locally and marijuana

grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion

into illicit channels, the Court has no difficulty concluding that Con-

gress had a rational basis for believing that failure to regulate the in-

trastate manufacture and possession of marijuana would leave a gap-

Cite as: 545 U. S. ____ (2005) 3

Syllabus

ing hole in the CSA. Pp. 12–20.

(c) Respondents’ heavy reliance on Lopez and Morrison overlooks

the larger context of modern-era Commerce Clause jurisprudence

preserved by those cases, while also reading those cases far too

broadly. The statutory challenges at issue there were markedly dif-

ferent from the challenge here. Respondents ask the Court to excise

individual applications of a concededly valid comprehensive statutory

scheme. In contrast, in both Lopez and Morrison, the parties as-

serted that a particular statute or provision fell outside Congress’

commerce power in its entirety. This distinction is pivotal for the

Court has often reiterated that “[w]here the class of activities is regu-

lated and that class is within the reach of federal power, the courts

have no power ‘to excise, as trivial, individual instances’ of the class.”

Perez, 402 U. S., at 154. Moreover, the Court emphasized that the

laws at issue in Lopez and Morrison had nothing to do with “com-

merce” or any sort of economic enterprise. See Lopez, 514 U. S., at

561; Morrison, 529 U. S., at 610. In contrast, the CSA regulates

quintessentially economic activities: the production, distribution, and

consumption of commodities for which there is an established, and

lucrative, interstate market. Prohibiting the intrastate possession or

manufacture of an article of commerce is a rational means of regulat-

ing commerce in that product. The Ninth Circuit cast doubt on the

CSA’s constitutionality by isolating a distinct class of activities that it

held to be beyond the reach of federal power: the intrastate, non-

commercial cultivation, possession, and use of marijuana for personal

medical purposes on the advice of a physician and in accordance with

state law. However, Congress clearly acted rationally in determining

that this subdivided class of activities is an essential part of the lar-

ger regulatory scheme. The case comes down to the claim that a locally

cultivated product that is used domestically rather than sold on the

open market is not subject to federal regulation. Given the CSA’s find-

ings and the undisputed magnitude of the commercial market for mari-

juana, Wickard and its progeny foreclose that claim. Pp. 20–30.

352 F. 3d 1222, vacated and remanded.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY,

SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed an opinion

concurring in the judgment. O’CONNOR, J., filed a dissenting opinion, in

which REHNQUIST, C. J., and THOMAS, J., joined as to all but Part III.

THOMAS, J., filed a dissenting opinion.

Cite as: 545 U. S. ____ (2005) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 03–1454

_________________

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET

AL., PETITIONERS

v. ANGEL MCCLARY RAICH ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 6, 2005]

JUSTICE STEVENS delivered the opinion of the Court.

California is one of at least nine States that authorize

the use of marijuana for medicinal purposes.1 The ques-

tion presented in this case is whether the power vested in

Congress by Article I, §8, of the Constitution “[t]o make all

Laws which shall be necessary and proper for carrying

into Execution” its authority to “regulate Commerce with

foreign Nations, and among the several States” includes

the power to prohibit the local cultivation and use of mari-

juana in compliance with California law.

——————

1 See Alaska Stat. §§11.71.090, 17.37.010–17.37.080 (Lexis 2004);

Colo. Const., Art. XVIII, §14, Colo. Rev. Stat. §18–18–406.3 (Lexis

2004); Haw. Rev. Stat. §§329–121 to 329–128 (2004 Cum. Supp.); Me.

Rev. Stat. Ann., Tit. 22, §2383–B(5) (West 2004); Nev. Const., Art. 4,

§38, Nev. Rev. Stat. §§453A.010–453A.810 (2003); Ore. Rev. Stat.

§§475.300–475.346 (2003); Vt. Stat. Ann., Tit. 18, §§4472–4474d (Supp.

2004); Wash. Rev. Code §§69.51.010–69.51.080 (2004); see also Ariz.

Rev. Stat. Ann. §13–3412.01 (West Supp. 2004) (voter initiative permit-

ting physicians to prescribe Schedule I substances for medical purposes

that was purportedly repealed in 1997, but the repeal was rejected by

voters in 1998). In November 2004, Montana voters approved Initiative

148, adding to the number of States authorizing the use of marijuana

for medical purposes.

2 GONZALES v. RAICH

Opinion of the Court

I

California has been a pioneer in the regulation of mari-

juana. In 1913, California was one of the first States to

prohibit the sale and possession of marijuana,2 and at the

end of the century, California became the first State to

authorize limited use of the drug for medicinal purposes.

In 1996, California voters passed Proposition 215, now

codified as the Compassionate Use Act of 1996.3 The propo-

sition was designed to ensure that “seriously ill” residents of

the State have access to marijuana for medical purposes,

and to encourage Federal and State Governments to take

steps towards ensuring the safe and affordable distribution

of the drug to patients in need.4 The Act creates an exemp-

tion from criminal prosecution for physicians,5 as well as for

——————

2 1913Cal. Stats. ch. 324, §8a; see also Gieringer, The Origins of

Cannabis Prohibition in California, Contemporary Drug Problems, 21–

23 (rev. 2005).

3 Cal. Health & Safety Code Ann. §11362.5 (West Supp. 2005). The

California Legislature recently enacted additional legislation supple-

menting the Compassionate Use Act. §§11362.7–11362.9 (West Supp.

2005).

4 “The people of the State of California hereby find and declare that

the purposes of the Compassionate Use Act of 1996 are as follows:

“(A) To ensure that seriously ill Californians have the right to obtain

and use marijuana for medical purposes where that medical use is

deemed appropriate and has been recommended by a physician who

has determined that the person’s health would benefit from the use of

marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,

spasticity, glaucoma, arthritis, migraine, or any other illness for which

marijuana provides relief.

“(B) To ensure that patients and their primary caregivers who obtain

and use marijuana for medical purposes upon the recommendation of a

physician are not subject to criminal prosecution or sanction.

“(C) To encourage the federal and state governments to implement a

plan to provide for the safe and affordable distribution of marijuana to

all patients in medical need of marijuana.” §11362.5(b)(1) (West Supp.

2005).

5 “Notwithstanding any other provision of law, no physician in this

state shall be punished, or denied any right or privilege, for having

Cite as: 545 U. S. ____ (2005) 3

Opinion of the Court

patients and primary caregivers who possess or cultivate

marijuana for medicinal purposes with the recommendation

or approval of a physician.6 A “primary caregiver” is a

person who has consistently assumed responsibility for the

housing, health, or safety of the patient.7

Respondents Angel Raich and Diane Monson are Cali-

fornia residents who suffer from a variety of serious medi-

cal conditions and have sought to avail themselves of

medical marijuana pursuant to the terms of the Compas-

sionate Use Act. They are being treated by licensed,

board-certified family practitioners, who have concluded,

after prescribing a host of conventional medicines to treat

respondents’ conditions and to alleviate their associated

symptoms, that marijuana is the only drug available that

provides effective treatment. Both women have been

using marijuana as a medication for several years pursu-

ant to their doctors’ recommendation, and both rely heav-

ily on cannabis to function on a daily basis. Indeed,

Raich’s physician believes that forgoing cannabis treat-

ments would certainly cause Raich excruciating pain and

could very well prove fatal.

Respondent Monson cultivates her own marijuana, and

ingests the drug in a variety of ways including smoking

and using a vaporizer. Respondent Raich, by contrast, is

unable to cultivate her own, and thus relies on two care-

givers, litigating as “John Does,” to provide her with lo-

cally grown marijuana at no charge. These caregivers also

——————

recommended marijuana to a patient for medical purposes.”

§11362.5(c) (West Supp. 2005).

6 “Section 11357, relating to the possession of marijuana, and Section

11358, relating to the cultivation of marijuana, shall not apply to a

patient, or to a patient’s primary caregiver, who possesses or cultivates

marijuana for the personal medical purposes of the patient upon the

written or oral recommendation or approval of a physician.” §11362.5(d)

(West Supp. 2005).

7 §11362.5(e) (West Supp. 2005).

4 GONZALES v. RAICH

Opinion of the Court

process the cannabis into hashish or keif, and Raich her-

self processes some of the marijuana into oils, balms, and

foods for consumption.

On August 15, 2002, county deputy sheriffs and agents

from the federal Drug Enforcement Administration (DEA)

came to Monson’s home. After a thorough investigation,

the county officials concluded that her use of marijuana

was entirely lawful as a matter of California law. Never-

theless, after a 3-hour standoff, the federal agents seized

and destroyed all six of her cannabis plants.

Respondents thereafter brought this action against the

Attorney General of the United States and the head of the

DEA seeking injunctive and declaratory relief prohibiting

the enforcement of the federal Controlled Substances Act

(CSA), 84 Stat. 1242, 21 U. S. C. §801 et seq., to the extent

it prevents them from possessing, obtaining, or manufac-

turing cannabis for their personal medical use. In their

complaint and supporting affidavits, Raich and Monson

described the severity of their afflictions, their repeatedly

futile attempts to obtain relief with conventional medica-

tions, and the opinions of their doctors concerning their

need to use marijuana. Respondents claimed that enforc-

ing the CSA against them would violate the Commerce

Clause, the Due Process Clause of the Fifth Amendment,

the Ninth and Tenth Amendments of the Constitution,

and the doctrine of medical necessity.

The District Court denied respondents’ motion for a

preliminary injunction. Raich v. Ashcroft, 248 F. Supp. 2d

918 (ND Cal. 2003). Although the court found that the

federal enforcement interests “wane[d]” when compared to

the harm that California residents would suffer if denied

access to medically necessary marijuana, it concluded that

respondents could not demonstrate a likelihood of success

on the merits of their legal claims. Id., at 931.

A divided panel of the Court of Appeals for the Ninth

Circuit reversed and ordered the District Court to enter a

Cite as: 545 U. S. ____ (2005) 5

Opinion of the Court

preliminary injunction.8 Raich v. Ashcroft, 352 F. 3d 1222

(2003). The court found that respondents had “demon-

strated a strong likelihood of success on their claim that,

as applied to them, the CSA is an unconstitutional exer-

cise of Congress’ Commerce Clause authority.” Id., at

1227. The Court of Appeals distinguished prior Circuit

cases upholding the CSA in the face of Commerce Clause

challenges by focusing on what it deemed to be the “sepa-

rate and distinct class of activities” at issue in this case:

“the intrastate, noncommercial cultivation and possession of

cannabis for personal medical purposes as recommended by

a patient’s physician pursuant to valid California state law.”

Id., at 1228. The court found the latter class of activities

“different in kind from drug trafficking” because interposing

a physician’s recommendation raises different health and

safety concerns, and because “this limited use is clearly

distinct from the broader illicit drug market—as well as

any broader commercial market for medicinal mari-

juana—insofar as the medicinal marijuana at issue in this

case is not intended for, nor does it enter, the stream of

commerce.” Ibid.

The majority placed heavy reliance on our decisions in

United States v. Lopez, 514 U. S. 549 (1995), and United

States v. Morrison, 529 U. S. 598 (2000), as interpreted by

recent Circuit precedent, to hold that this separate class of

purely local activities was beyond the reach of federal

power. In contrast, the dissenting judge concluded that

——————

8 On remand, the District Court entered a preliminary injunction

enjoining petitioners “ ‘from arresting or prosecuting Plaintiffs Angel

McClary Raich and Diane Monson, seizing their medical cannabis,

forfeiting their property, or seeking civil or administrative sanctions

against them with respect to the intrastate, non-commercial cultiva-

tion, possession, use, and obtaining without charge of cannabis for

personal medical purposes on the advice of a physician and in accor-

dance with state law, and which is not used for distribution, sale, or

exchange.’ ” Brief for Petitioners 9.

6 GONZALES v. RAICH

Opinion of the Court

the CSA, as applied to respondents, was clearly valid

under Lopez and Morrison; moreover, he thought it “sim-

ply impossible to distinguish the relevant conduct sur-

rounding the cultivation and use of the marijuana crop at

issue in this case from the cultivation and use of the wheat

crop that affected interstate commerce in Wickard v.

Filburn.” 352 F. 3d, at 1235 (Beam, J., dissenting) (cita-

tion omitted).

The obvious importance of the case prompted our grant

of certiorari. 542 U. S. 936 (2004). The case is made

difficult by respondents’ strong arguments that they will

suffer irreparable harm because, despite a congressional

finding to the contrary, marijuana does have valid thera-

peutic purposes. The question before us, however, is not

whether it is wise to enforce the statute in these circum-

stances; rather, it is whether Congress’ power to regulate

interstate markets for medicinal substances encompasses

the portions of those markets that are supplied with drugs

produced and consumed locally. Well-settled law controls

our answer. The CSA is a valid exercise of federal power,

even as applied to the troubling facts of this case. We

accordingly vacate the judgment of the Court of Appeals.

II

Shortly after taking office in 1969, President Nixon

declared a national “war on drugs.”9 As the first campaign

of that war, Congress set out to enact legislation that

would consolidate various drug laws on the books into a

comprehensive statute, provide meaningful regulation

over legitimate sources of drugs to prevent diversion into

illegal channels, and strengthen law enforcement tools

against the traffic in illicit drugs.10 That effort culminated

——————

9 See

D. Musto & P. Korsmeyer, The Quest for Drug Control 60 (2002)

(hereinafter Musto & Korsmeyer).

10 H. R. Rep. No. 91–1444, pt. 2, p. 22 (1970) (hereinafter H. R. Rep.);

26 Congressional Quarterly Almanac 531 (1970) (hereinafter Almanac);

Cite as: 545 U. S. ____ (2005) 7

Opinion of the Court

in the passage of the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, 84 Stat. 1236.

This was not, however, Congress’ first attempt to regu-

late the national market in drugs. Rather, as early as

1906 Congress enacted federal legislation imposing label-

ing regulations on medications and prohibiting the manu-

facture or shipment of any adulterated or misbranded

drug traveling in interstate commerce.11 Aside from these

labeling restrictions, most domestic drug regulations prior

to 1970 generally came in the guise of revenue laws, with

the Department of the Treasury serving as the Federal

Government’s primary enforcer.12 For example, the pri-

mary drug control law, before being repealed by the pas-

sage of the CSA, was the Harrison Narcotics Act of 1914,

38 Stat. 785 (repealed 1970). The Harrison Act sought to

exert control over the possession and sale of narcotics,

specifically cocaine and opiates, by requiring producers,

distributors, and purchasers to register with the Federal

Government, by assessing taxes against parties so regis-

tered, and by regulating the issuance of prescriptions.13

Marijuana itself was not significantly regulated by the

Federal Government until 1937 when accounts of mari-

juana’s addictive qualities and physiological effects, paired

with dissatisfaction with enforcement efforts at state and

local levels, prompted Congress to pass the Marihuana

Tax Act, Pub. L. 75–238, 50 Stat. 551 (repealed 1970).14

——————

Musto & Korsmeyer 56–57.

11 Pure Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, repealed by

Act of June 25, 1938, ch. 675, §902(a), 52 Stat. 1059.

12 See United States v. Doremus, 249 U. S. 86 (1919); Leary v. United

States, 395 U. S. 6, 14–16 (1969).

13 See Doremus, 249 U. S., at 90–93.

14 R. Bonnie & C. Whitebread, The Marijuana Conviction 154–174

(1999); L. Grinspoon & J. Bakalar, Marihuana, the Forbidden Medicine

7–8 (rev. ed. 1997) (hereinafter Grinspoon & Bakalar). Although this

was the Federal Government’s first attempt to regulate the marijuana

trade, by this time all States had in place some form of legislation

8 GONZALES v. RAICH

Opinion of the Court

Like the Harrison Act, the Marihuana Tax Act did not

outlaw the possession or sale of marijuana outright.

Rather, it imposed registration and reporting require-

ments for all individuals importing, producing, selling, or

dealing in marijuana, and required the payment of annual

taxes in addition to transfer taxes whenever the drug

changed hands.15 Moreover, doctors wishing to prescribe

marijuana for medical purposes were required to comply

with rather burdensome administrative requirements.16

Noncompliance exposed traffickers to severe federal penal-

ties, whereas compliance would often subject them to

prosecution under state law.17 Thus, while the Marihuana

Tax Act did not declare the drug illegal per se, the onerous

administrative requirements, the prohibitively expensive

taxes, and the risks attendant on compliance practically

curtailed the marijuana trade.

Then in 1970, after declaration of the national “war on

drugs,” federal drug policy underwent a significant trans-

formation. A number of noteworthy events precipitated

this policy shift. First, in Leary v. United States, 395 U. S.

6 (1969), this Court held certain provisions of the Marihu-

ana Tax Act and other narcotics legislation unconstitu-

tional. Second, at the end of his term, President Johnson

fundamentally reorganized the federal drug control agen-

cies. The Bureau of Narcotics, then housed in the De-

partment of Treasury, merged with the Bureau of Drug

Abuse Control, then housed in the Department of Health,

Education, and Welfare (HEW), to create the Bureau of

Narcotics and Dangerous Drugs, currently housed in the

Department of Justice.18 Finally, prompted by a perceived

——————

regulating the sale, use, or possession of marijuana. R. Isralowitz,

Drug Use, Policy, and Management 134 (2d ed. 2002).

15 Leary, 395 U. S., at 14–16.

16 Grinspoon & Bakalar 8.

17 Leary, 395 U. S., at 16–18.

18 Musto & Korsmeyer 32–35; 26 Almanac 533. In 1973, the Bureau

Cite as: 545 U. S. ____ (2005) 9

Opinion of the Court

need to consolidate the growing number of piecemeal drug

laws and to enhance federal drug enforcement powers,

Congress enacted the Comprehensive Drug Abuse Preven-

tion and Control Act.19

Title II of that Act, the CSA, repealed most of the earlier

antidrug laws in favor of a comprehensive regime to com-

bat the international and interstate traffic in illicit drugs.

The main objectives of the CSA were to conquer drug

abuse and to control the legitimate and illegitimate traffic

in controlled substances.20 Congress was particularly

——————

of Narcotics and Dangerous Drugs became the Drug Enforcement

Administration (DEA). See Reorg. Plan No. 2 of 1973, §1, 28 CFR

§0.100 (1973).

19 The Comprehensive Drug Abuse Prevention and Control Act of

1970 consists of three titles. Title I relates to the prevention and

treatment of narcotic addicts through HEW (now the Department of

Health and Human Services). 84 Stat. 1238. Title II, as discussed in

more detail above, addresses drug control and enforcement as adminis-

tered by the Attorney General and the DEA. Id., at 1242. Title III

concerns the import and export of controlled substances. Id., at 1285.

20 In particular, Congress made the following findings:

“(1) Many of the drugs included within this subchapter have a useful

and legitimate medical purpose and are necessary to maintain the

health and general welfare of the American people.

“(2) The illegal importation, manufacture, distribution, and posses-

sion and improper use of controlled substances have a substantial and

detrimental effect on the health and general welfare of the American

people.

“(3) A major portion of the traffic in controlled substances flows

through interstate and foreign commerce. Incidents of the traffic which

are not an integral part of the interstate or foreign flow, such as manu-

facture, local distribution, and possession, nonetheless have a substan-

tial and direct effect upon interstate commerce because—

“(A) after manufacture, many controlled substances are trans-

ported in interstate commerce,

“(B) controlled substances distributed locally usually have been

transported in interstate commerce immediately before their distribu-

tion, and

“(C) controlled substances possessed commonly flow through

interstate commerce immediately prior to such possession.

10 GONZALES v. RAICH

Opinion of the Court

concerned with the need to prevent the diversion of drugs

from legitimate to illicit channels.21

To effectuate these goals, Congress devised a closed

regulatory system making it unlawful to manufacture,

distribute, dispense, or possess any controlled substance

except in a manner authorized by the CSA. 21 U. S. C.

§§841(a)(1), 844(a). The CSA categorizes all controlled

substances into five schedules. §812. The drugs are

grouped together based on their accepted medical uses,

the potential for abuse, and their psychological and physi-

cal effects on the body. §§811, 812. Each schedule is

associated with a distinct set of controls regarding the

manufacture, distribution, and use of the substances listed

therein. §§821–830. The CSA and its implementing

regulations set forth strict requirements regarding regis-

tration, labeling and packaging, production quotas, drug

security, and recordkeeping. Ibid. 21 CFR §1301 et seq.

(2004).

In enacting the CSA, Congress classified marijuana as a

Schedule I drug. 21 U. S. C. §812(c). This preliminary

classification was based, in part, on the recommendation

of the Assistant Secretary of HEW “that marihuana be

retained within schedule I at least until the completion of

——————

“(4) Local distribution and possession of controlled substances con-

tribute to swelling the interstate traffic in such substances.

“(5) Controlled substances manufactured and distributed intrastate

cannot be differentiated from controlled substances manufactured and

distributed interstate. Thus, it is not feasible to distinguish, in terms of

controls, between controlled substances manufactured and distributed

interstate and controlled substances manufactured and distributed

intrastate.

“(6) Federal control of the intrastate incidents of the traffic in con-

trolled substances is essential to the effective control of the interstate

incidents of such traffic.” 21 U. S. C. §§801(1)–(6).

21 See United States v. Moore, 423 U. S. 122, 135 (1975); see also H. R.

Rep., at 22.

Cite as: 545 U. S. ____ (2005) 11

Opinion of the Court

certain studies now underway.”22 Schedule I drugs are

categorized as such because of their high potential for

abuse, lack of any accepted medical use, and absence of

any accepted safety for use in medically supervised treat-

ment. §812(b)(1). These three factors, in varying grada-

tions, are also used to categorize drugs in the other four

schedules. For example, Schedule II substances also have

a high potential for abuse which may lead to severe psy-

chological or physical dependence, but unlike Schedule I

drugs, they have a currently accepted medical use.

§812(b)(2). By classifying marijuana as a Schedule I drug,

as opposed to listing it on a lesser schedule, the manufac-

ture, distribution, or possession of marijuana became a

criminal offense, with the sole exception being use of the

drug as part of a Food and Drug Administration pre-

approved research study. §§823(f), 841(a)(1), 844(a); see

also United States v. Oakland Cannabis Buyers’ Coopera-

tive, 532 U. S. 483, 490 (2001).

The CSA provides for the periodic updating of schedules

and delegates authority to the Attorney General, after

consultation with the Secretary of Health and Human

Services, to add, remove, or transfer substances to, from,

or between schedules. §811. Despite considerable efforts

to reschedule marijuana, it remains a Schedule I drug.23

——————

22 H. R. Rep., at 61 (quoting letter from Roger E. Egeberg, M. D. to

Hon. Harley O. Staggers (Aug. 14, 1970)).

23 Starting in 1972, the National Organization for the Reform of Mari-

juana Laws (NORML) began its campaign to reclassify marijuana.

Grinspoon & Bakalar 13–17. After some fleeting success in 1988 when

an Administrative Law Judge (ALJ) declared that the DEA would be

acting in an “unreasonable, arbitrary, and capricious” manner if it

continued to deny marijuana access to seriously ill patients, and

concluded that it should be reclassified as a Schedule III substance,

Grinspoon v. DEA, 828 F. 2d 881, 883–884 (CA1 1987), the campaign

has proved unsuccessful. The DEA Administrator did not endorse the

ALJ’s findings, 54 Fed. Reg. 53767 (1989), and since that time has

routinely denied petitions to reschedule the drug, most recently in

12 GONZALES v. RAICH

Opinion of the Court

III

Respondents in this case do not dispute that passage of

the CSA, as part of the Comprehensive Drug Abuse Pre-

vention and Control Act, was well within Congress’ com-

merce power. Brief for Respondents 22, 38. Nor do they

contend that any provision or section of the CSA amounts

to an unconstitutional exercise of congressional authority.

Rather, respondents’ challenge is actually quite limited;

they argue that the CSA’s categorical prohibition of the

manufacture and possession of marijuana as applied to

the intrastate manufacture and possession of marijuana

for medical purposes pursuant to California law exceeds

Congress’ authority under the Commerce Clause.

In assessing the validity of congressional regulation,

none of our Commerce Clause cases can be viewed in

isolation. As charted in considerable detail in United

States v. Lopez, our understanding of the reach of the

Commerce Clause, as well as Congress’ assertion of au-

thority thereunder, has evolved over time.24 The Com-

merce Clause emerged as the Framers’ response to the

central problem giving rise to the Constitution itself: the

absence of any federal commerce power under the Articles

of Confederation.25 For the first century of our history, the

primary use of the Clause was to preclude the kind of

discriminatory state legislation that had once been per-

——————

2001. 66 Fed. Reg. 20038 (2001). The Court of Appeals for the District

of Columbia Circuit has reviewed the petition to reschedule marijuana

on five separate occasions over the course of 30 years, ultimately

upholding the Administrator’s final order. See Alliance for Cannabis

Therapeutics v. DEA, 15 F. 3d 1131, 1133 (1994).

24 United States v. Lopez, 514 U. S. 549, 552–558 (1995); id., at 568–574

(KENNEDY, J., concurring); id., at 604–607 (SOUTER, J., dissenting).

25 See Gibbons v. Ogden, 9 Wheat. 1, 224 (1824) (opinion of Johnson, J.);

Stern, That Commerce Which Concerns More States Than One, 47 Harv.

L. Rev. 1335, 1337, 1340–1341 (1934); G. Gunther, Constitutional Law

127 (9th ed. 1975).

Cite as: 545 U. S. ____ (2005) 13

Opinion of the Court

missible.26 Then, in response to rapid industrial develop-

ment and an increasingly interdependent national econ-

omy, Congress “ushered in a new era of federal regulation

under the commerce power,” beginning with the enact-

ment of the Interstate Commerce Act in 1887, 24 Stat.

379, and the Sherman Antitrust Act in 1890, 26 Stat. 209,

as amended, 15 U. S. C. §2 et seq.27

Cases decided during that “new era,” which now spans

more than a century, have identified three general catego-

ries of regulation in which Congress is authorized to en-

gage under its commerce power. First, Congress can

regulate the channels of interstate commerce. Perez v.

United States, 402 U. S. 146, 150 (1971). Second, Congress

has authority to regulate and protect the instrumentalities

of interstate commerce, and persons or things in interstate

commerce. Ibid. Third, Congress has the power to regu-

late activities that substantially affect interstate com-

merce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301

U. S. 1, 37 (1937). Only the third category is implicated in

the case at hand.

Our case law firmly establishes Congress’ power to

regulate purely local activities that are part of an eco-

nomic “class of activities” that have a substantial effect on

interstate commerce. See, e.g., Perez, 402 U. S., at 151;

——————

26 See Lopez, 514 U. S., at 553–554; id., at 568–569 (KENNEDY, J.,

concurring); see also Granholm v. Heald, 544 U. S. __, __ (2005) (slip

op., at 8–9).

27 Lopez, 514 U. S., at 554; see also Wickard v. Filburn, 317 U. S.

111, 121 (1942) (“It was not until 1887, with the enactment of the

Interstate Commerce Act, that the interstate commerce power began

to exert positive influence in American law and life. This first impor-

tant federal resort to the commerce power was followed in 1890 by the

Sherman Anti-Trust Act and, thereafter, mainly after 1903, by many

others. These statutes ushered in new phases of adjudication, which

required the Court to approach the interpretation of the Commerce

Clause in the light of an actual exercise by Congress of its power

thereunder” (footnotes omitted)).

14 GONZALES v. RAICH

Opinion of the Court

Wickard v. Filburn, 317 U. S. 111, 128–129 (1942). As we

stated in Wickard, “even if appellee’s activity be local and

though it may not be regarded as commerce, it may still,

whatever its nature, be reached by Congress if it exerts a

substantial economic effect on interstate commerce.” Id.,

at 125. We have never required Congress to legislate with

scientific exactitude. When Congress decides that the

“ ‘total incidence’ ” of a practice poses a threat to a national

market, it may regulate the entire class. See Perez, 402

U. S., at 154–155 (quoting Westfall v. United States, 274

U. S. 256, 259 (1927) (“[W]hen it is necessary in order to

prevent an evil to make the law embrace more than the

precise thing to be prevented it may do so”)). In this vein,

we have reiterated that when “‘a general regulatory statute

bears a substantial relation to commerce, the de minimis

character of individual instances arising under that statute

is of no consequence.’” E.g., Lopez, 514 U. S., at 558 (em-

phasis deleted) (quoting Maryland v. Wirtz, 392 U. S. 183,

196, n. 27 (1968)).

Our decision in Wickard, 317 U. S. 111, is of particular

relevance. In Wickard, we upheld the application of regu-

lations promulgated under the Agricultural Adjustment

Act of 1938, 52 Stat. 31, which were designed to control

the volume of wheat moving in interstate and foreign

commerce in order to avoid surpluses and consequent

abnormally low prices. The regulations established an

allotment of 11.1 acres for Filburn’s 1941 wheat crop, but

he sowed 23 acres, intending to use the excess by consum-

ing it on his own farm. Filburn argued that even though

we had sustained Congress’ power to regulate the produc-

tion of goods for commerce, that power did not authorize

“federal regulation [of] production not intended in any

part for commerce but wholly for consumption on the

farm.” Wickard, 317 U. S., at 118. Justice Jackson’s

opinion for a unanimous Court rejected this submission.

He wrote:

Cite as: 545 U. S. ____ (2005) 15

Opinion of the Court

“The effect of the statute before us is to restrict the

amount which may be produced for market and the

extent as well to which one may forestall resort to the

market by producing to meet his own needs. That ap-

pellee’s own contribution to the demand for wheat

may be trivial by itself is not enough to remove him

from the scope of federal regulation where, as here,

his contribution, taken together with that of many

others similarly situated, is far from trivial.” Id., at

127–128.

Wickard thus establishes that Congress can regulate

purely intrastate activity that is not itself “commercial,” in

that it is not produced for sale, if it concludes that failure

to regulate that class of activity would undercut the regu-

lation of the interstate market in that commodity.

The similarities between this case and Wickard are

striking. Like the farmer in Wickard, respondents are

cultivating, for home consumption, a fungible commodity

for which there is an established, albeit illegal, interstate

market.28 Just as the Agricultural Adjustment Act was

designed “to control the volume [of wheat] moving in

interstate and foreign commerce in order to avoid sur-

pluses . . .” and consequently control the market price,

id., at 115, a primary purpose of the CSA is to control the

supply and demand of controlled substances in both

lawful and unlawful drug markets. See nn. 20–21, supra.

——————

28 Even respondents acknowledge the existence of an illicit market in

marijuana; indeed, Raich has personally participated in that market,

and Monson expresses a willingness to do so in the future. App. 59, 74,

87. See also Department of Revenue of Mont. v. Kurth Ranch, 511 U. S.

767, 770, 774, n. 12, and 780, n. 17 (1994) (discussing the “market

value” of marijuana); id., at 790 (REHNQUIST, C. J., dissenting); id., at

792 (O’CONNOR, J., dissenting); Whalen v. Roe, 429 U. S. 589, 591

(1977) (addressing prescription drugs “for which there is both a lawful

and an unlawful market”); Turner v. United States, 396 U. S. 398, 417,

n. 33 (1970) (referring to the purchase of drugs on the “retail market”).

16 GONZALES v. RAICH

Opinion of the Court

In Wickard, we had no difficulty concluding that Con-

gress had a rational basis for believing that, when viewed

in the aggregate, leaving home-consumed wheat outside

the regulatory scheme would have a substantial influence

on price and market conditions. Here too, Congress had

a rational basis for concluding that leaving home-

consumed marijuana outside federal control would simi-

larly affect price and market conditions.

More concretely, one concern prompting inclusion of

wheat grown for home consumption in the 1938 Act was

that rising market prices could draw such wheat into the

interstate market, resulting in lower market prices.

Wickard, 317 U. S., at 128. The parallel concern making it

appropriate to include marijuana grown for home con-

sumption in the CSA is the likelihood that the high de-

mand in the interstate market will draw such marijuana

into that market. While the diversion of homegrown

wheat tended to frustrate the federal interest in stabiliz-

ing prices by regulating the volume of commercial transac-

tions in the interstate market, the diversion of homegrown

marijuana tends to frustrate the federal interest in elimi-

nating commercial transactions in the interstate market

in their entirety. In both cases, the regulation is squarely

within Congress’ commerce power because production of

the commodity meant for home consumption, be it wheat

or marijuana, has a substantial effect on supply and de-

mand in the national market for that commodity.29

——————

29 To be sure, the wheat market is a lawful market that Congress

sought to protect and stabilize, whereas the marijuana market is an

unlawful market that Congress sought to eradicate. This difference,

however, is of no constitutional import. It has long been settled that

Congress’ power to regulate commerce includes the power to prohibit

commerce in a particular commodity. Lopez, 514 U. S., at 571 (KENNEDY,

J., concurring) (“In the Lottery Case, 188 U. S. 321 (1903), the Court

rejected the argument that Congress lacked [the] power to prohibit the

interstate movement of lottery tickets because it had power only to

regulate, not to prohibit”); see also Wickard, 317 U. S., at 128 (“The

Cite as: 545 U. S. ____ (2005) 17

Opinion of the Court

Nonetheless, respondents suggest that Wickard differs

from this case in three respects: (1) the Agricultural Ad-

justment Act, unlike the CSA, exempted small farming

operations; (2) Wickard involved a “quintessential eco-

nomic activity”—a commercial farm—whereas respon-

dents do not sell marijuana; and (3) the Wickard record

made it clear that the aggregate production of wheat for

use on farms had a significant impact on market prices.

Those differences, though factually accurate, do not dimin-

ish the precedential force of this Court’s reasoning.

The fact that Wickard’s own impact on the market was

“trivial by itself ” was not a sufficient reason for removing

him from the scope of federal regulation. 317 U. S., at

127. That the Secretary of Agriculture elected to exempt

even smaller farms from regulation does not speak to his

power to regulate all those whose aggregated production

was significant, nor did that fact play any role in the

Court’s analysis. Moreover, even though Wickard was

indeed a commercial farmer, the activity he was engaged

in—the cultivation of wheat for home consumption—was

not treated by the Court as part of his commercial farming

operation.30 And while it is true that the record in the

Wickard case itself established the causal connection

between the production for local use and the national

market, we have before us findings by Congress to the

same effect.

Findings in the introductory sections of the CSA explain

why Congress deemed it appropriate to encompass local

activities within the scope of the CSA. See n. 20, supra.

The submissions of the parties and the numerous amici all

seem to agree that the national, and international, market

——————

stimulation of commerce is a use of the regulatory function quite as

definitely as prohibitions or restrictions thereon”).

30 See Wickard, 317 U. S., at 125 (recognizing that Wickard’s activity

“may not be regarded as commerce”).

18 GONZALES v. RAICH

Opinion of the Court

for marijuana has dimensions that are fully comparable to

those defining the class of activities regulated by the

Secretary pursuant to the 1938 statute.31 Respondents

nonetheless insist that the CSA cannot be constitutionally

applied to their activities because Congress did not make a

specific finding that the intrastate cultivation and posses-

sion of marijuana for medical purposes based on the rec-

ommendation of a physician would substantially affect the

larger interstate marijuana market. Be that as it may, we

have never required Congress to make particularized

findings in order to legislate, see Lopez, 514 U. S., at 562;

Perez, 402 U. S., at 156, absent a special concern such as

the protection of free speech, see, e.g., Turner Broadcast-

ing System, Inc. v. FCC, 512 U. S. 622, 664–668 (1994)

(plurality opinion). While congressional findings are

certainly helpful in reviewing the substance of a congres-

sional statutory scheme, particularly when the connection

to commerce is not self-evident, and while we will consider

congressional findings in our analysis when they are

available, the absence of particularized findings does not

call into question Congress’ authority to legislate.32

——————

31 The Executive Office of the President has estimated that in 2000

American users spent $10.5 billion on the purchase of marijuana. Office of

Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004), available at

http://www.whitehousedrugpolicy.gov/publications/factsht/marijuana/index

.html (all Internet materials as visited June 2, 2005, and available in Clerk

of Court’s case file).

32 Moreover, as discussed in more detail above, Congress did make

findings regarding the effects of intrastate drug activity on interstate

commerce. See n. 20, supra. Indeed, even the Court of Appeals found

that those findings “weigh[ed] in favor” of upholding the constitutional-

ity of the CSA. 352 F. 3d 1222, 1232 (CA9 2003) (case below). The

dissenters, however, would impose a new and heightened burden on

Congress (unless the litigants can garner evidence sufficient to cure

Congress’ perceived “inadequa[cies]”)—that legislation must contain

detailed findings proving that each activity regulated within a compre-

hensive statute is essential to the statutory scheme. Post, at 13–15

(O’CONNOR, J., dissenting); post, at 8 (THOMAS, J., dissenting). Such an

Cite as: 545 U. S. ____ (2005) 19

Opinion of the Court

In assessing the scope of Congress’ authority under the

Commerce Clause, we stress that the task before us is a

modest one. We need not determine whether respondents’

activities, taken in the aggregate, substantially affect

interstate commerce in fact, but only whether a “rational

basis” exists for so concluding. Lopez, 514 U. S., at 557;

see also Hodel v. Virginia Surface Mining & Reclamation

Assn., Inc., 452 U. S. 264, 276–280 (1981); Perez, 402 U. S.,

at 155–156; Katzenbach v. McClung, 379 U. S. 294, 299–

301 (1964); Heart of Atlanta Motel, Inc. v. United States,

379 U. S. 241, 252–253 (1964). Given the enforcement

difficulties that attend distinguishing between marijuana

cultivated locally and marijuana grown elsewhere, 21

U. S. C. §801(5), and concerns about diversion into illicit

channels,33 we have no difficulty concluding that Congress

had a rational basis for believing that failure to regulate

the intrastate manufacture and possession of marijuana

would leave a gaping hole in the CSA. Thus, as in

Wickard, when it enacted comprehensive legislation to

regulate the interstate market in a fungible commodity,

Congress was acting well within its authority to “make all

Laws which shall be necessary and proper” to “regulate

Commerce . . . among the several States.” U. S. Const.,

Art. I, §8. That the regulation ensnares some purely

intrastate activity is of no moment. As we have done

many times before, we refuse to excise individual compo-

——————

exacting requirement is not only unprecedented, it is also impractical.

Indeed, the principal dissent’s critique of Congress for “not even”

including “declarations” specific to marijuana is particularly unpersua-

sive given that the CSA initially identified 80 other substances subject

to regulation as Schedule I drugs, not to mention those categorized in

Schedules II–V. Post, at 14 (O’CONNOR, J., dissenting). Surely, Con-

gress cannot be expected (and certainly should not be required) to

include specific findings on each and every substance contained therein

in order to satisfy the dissenters’ unfounded skepticism.

33 See n. 21, supra (citing sources that evince Congress’ particular

concern with the diversion of drugs from legitimate to illicit channels).

20 GONZALES v. RAICH

Opinion of the Court

nents of that larger scheme.

IV

To support their contrary submission, respondents rely

heavily on two of our more recent Commerce Clause cases.

In their myopic focus, they overlook the larger context of

modern-era Commerce Clause jurisprudence preserved by

those cases. Moreover, even in the narrow prism of re-

spondents’ creation, they read those cases far too broadly.

Those two cases, of course, are Lopez, 514 U. S. 549, and

Morrison, 529 U. S. 598. As an initial matter, the statu-

tory challenges at issue in those cases were markedly

different from the challenge respondents pursue in the

case at hand. Here, respondents ask us to excise individ-

ual applications of a concededly valid statutory scheme.

In contrast, in both Lopez and Morrison, the parties as-

serted that a particular statute or provision fell outside

Congress’ commerce power in its entirety. This distinction

is pivotal for we have often reiterated that “[w]here the

class of activities is regulated and that class is within the

reach of federal power, the courts have no power ‘to excise,

as trivial, individual instances’ of the class.” Perez, 402

U. S., at 154 (emphasis deleted) (quoting Wirtz, 392 U. S.,

at 193); see also Hodel, 452 U. S., at 308.

At issue in Lopez, 514 U. S. 549, was the validity of the

Gun-Free School Zones Act of 1990, which was a brief,

single-subject statute making it a crime for an individual to

possess a gun in a school zone. 104 Stat. 4844–4845, 18

U. S. C. §922(q)(1)(A). The Act did not regulate any eco-

nomic activity and did not contain any requirement that

the possession of a gun have any connection to past inter-

state activity or a predictable impact on future commercial

activity. Distinguishing our earlier cases holding that

comprehensive regulatory statutes may be validly applied

to local conduct that does not, when viewed in isolation,

have a significant impact on interstate commerce, we held

Cite as: 545 U. S. ____ (2005) 21

Opinion of the Court

the statute invalid. We explained:

“Section 922(q) is a criminal statute that by its terms

has nothing to do with ‘commerce’ or any sort of eco-

nomic enterprise, however broadly one might define

those terms. Section 922(q) is not an essential part of

a larger regulation of economic activity, in which the

regulatory scheme could be undercut unless the intra-

state activity were regulated. It cannot, therefore, be

sustained under our cases upholding regulations of

activities that arise out of or are connected with a

commercial transaction, which viewed in the aggre-

gate, substantially affects interstate commerce.” 514

U. S., at 561.

The statutory scheme that the Government is defending

in this litigation is at the opposite end of the regulatory

spectrum. As explained above, the CSA, enacted in 1970

as part of the Comprehensive Drug Abuse Prevention and

Control Act, 84 Stat. 1242–1284, was a lengthy and de-

tailed statute creating a comprehensive framework for

regulating the production, distribution, and possession of

five classes of “controlled substances.” Most of those

substances—those listed in Schedules II through V—“have

a useful and legitimate medical purpose and are necessary

to maintain the health and general welfare of the Ameri-

can people.” 21 U. S. C. §801(1). The regulatory scheme

is designed to foster the beneficial use of those medica-

tions, to prevent their misuse, and to prohibit entirely the

possession or use of substances listed in Schedule I, except

as a part of a strictly controlled research project.

While the statute provided for the periodic updating of

the five schedules, Congress itself made the initial classifi-

cations. It identified 42 opiates, 22 opium derivatives, and

17 hallucinogenic substances as Schedule I drugs. 84 Stat.

1248. Marijuana was listed as the 10th item in the third

subcategory. That classification, unlike the discrete pro-

22 GONZALES v. RAICH

Opinion of the Court

hibition established by the Gun-Free School Zones Act of

1990, was merely one of many “essential part[s] of a larger

regulation of economic activity, in which the regulatory

scheme could be undercut unless the intrastate activity

were regulated.” Lopez, 514 U. S., at 561.34 Our opinion

in Lopez casts no doubt on the validity of such a program.

Nor does this Court’s holding in Morrison, 529 U. S. 598.

The Violence Against Women Act of 1994, 108 Stat. 1902,

created a federal civil remedy for the victims of gender-

motivated crimes of violence. 42 U. S. C. §13981. The

remedy was enforceable in both state and federal courts,

and generally depended on proof of the violation of a state

law. Despite congressional findings that such crimes had

an adverse impact on interstate commerce, we held the

statute unconstitutional because, like the statute in Lopez,

it did not regulate economic activity. We concluded that

“the noneconomic, criminal nature of the conduct at issue

was central to our decision” in Lopez, and that our prior

cases had identified a clear pattern of analysis: “ ‘Where

economic activity substantially affects interstate com-

merce, legislation regulating that activity will be sus-

tained.’ ”35 Morrison, 529 U. S., at 610.

Unlike those at issue in Lopez and Morrison, the activi-

——————

34 The principal dissent asserts that by “[s]eizing upon our language

in Lopez,” post, at 5 (opinion of O’CONNOR, J.), i.e., giving effect to our

well-established case law, Congress will now have an incentive to

legislate broadly. Even putting aside the political checks that would

generally curb Congress’ power to enact a broad and comprehensive

scheme for the purpose of targeting purely local activity, there is no

suggestion that the CSA constitutes the type of “evasive” legislation the

dissent fears, nor could such an argument plausibly be made. Post, at 6

(O’CONNOR, J., dissenting).

35 Lopez, 514 U. S., at 560; see also id., at 573–574 (KENNEDY, J., con-

curring) (stating that Lopez did not alter our “practical conception of

commercial regulation” and that Congress may “regulate in the com-

mercial sphere on the assumption that we have a single market and a

unified purpose to build a stable national economy”).

Cite as: 545 U. S. ____ (2005) 23

Opinion of the Court

ties regulated by the CSA are quintessentially economic.

“Economics” refers to “the production, distribution, and

consumption of commodities.” Webster’s Third New In-

ternational Dictionary 720 (1966). The CSA is a statute

that regulates the production, distribution, and consump-

tion of commodities for which there is an established, and

lucrative, interstate market. Prohibiting the intrastate

possession or manufacture of an article of commerce is a

rational (and commonly utilized) means of regulating

commerce in that product.36 Such prohibitions include

specific decisions requiring that a drug be withdrawn from

the market as a result of the failure to comply with regula-

tory requirements as well as decisions excluding Schedule

I drugs entirely from the market. Because the CSA is a

statute that directly regulates economic, commercial

activity, our opinion in Morrison casts no doubt on its

constitutionality.

The Court of Appeals was able to conclude otherwise

only by isolating a “separate and distinct” class of activi-

ties that it held to be beyond the reach of federal power,

defined as “the intrastate, noncommercial cultivation,

possession and use of marijuana for personal medical

purposes on the advice of a physician and in accordance

with state law.” 352 F. 3d, at 1229. The court character-

ized this class as “different in kind from drug trafficking.”

Id., at 1228. The differences between the members of a

class so defined and the principal traffickers in Schedule I

substances might be sufficient to justify a policy decision

exempting the narrower class from the coverage of the

CSA. The question, however, is whether Congress’ con-

trary policy judgment, i.e., its decision to include this

narrower “class of activities” within the larger regulatory

——————

36 See 16 U. S. C. §668(a) (bald and golden eagles); 18 U. S. C. §175(a)

(biological weapons); §831(a) (nuclear material); §842(n)(1) (certain

plastic explosives); §2342(a) (contraband cigarettes).

24 GONZALES v. RAICH

Opinion of the Court

scheme, was constitutionally deficient. We have no diffi-

culty concluding that Congress acted rationally in deter-

mining that none of the characteristics making up the

purported class, whether viewed individually or in the

aggregate, compelled an exemption from the CSA; rather,

the subdivided class of activities defined by the Court of

Appeals was an essential part of the larger regulatory

scheme.

First, the fact that marijuana is used “for personal

medical purposes on the advice of a physician” cannot

itself serve as a distinguishing factor. 352 F. 3d, at 1229.

The CSA designates marijuana as contraband for any

purpose; in fact, by characterizing marijuana as a Sched-

ule I drug, Congress expressly found that the drug has no

acceptable medical uses. Moreover, the CSA is a compre-

hensive regulatory regime specifically designed to regulate

which controlled substances can be utilized for medicinal

purposes, and in what manner. Indeed, most of the sub-

stances classified in the CSA “have a useful and legitimate

medical purpose.” 21 U. S. C. §801(1). Thus, even if

respondents are correct that marijuana does have ac-

cepted medical uses and thus should be redesignated as a

lesser schedule drug,37 the CSA would still impose controls

——————

37 We acknowledge that evidence proffered by respondents in this case

regarding the effective medical uses for marijuana, if found credible

after trial, would cast serious doubt on the accuracy of the findings that

require marijuana to be listed in Schedule I. See, e.g., Institute of

Medicine, Marijuana and Medicine: Assessing the Science Base 179 (J.

Joy, S. Watson, & J. Benson eds. 1999) (recognizing that “[s]cientific

data indicate the potential therapeutic value of cannabinoid drugs,

primarily THC [Tetrahydrocannabinol] for pain relief, control of nausea

and vomiting, and appetite stimulation”); see also Conant v. Walters,

309 F. 3d 629, 640–643 (CA9 2002) (Kozinski, J., concurring) (chroni-

cling medical studies recognizing valid medical uses for marijuana and

its derivatives). But the possibility that the drug may be reclassified in

the future has no relevance to the question whether Congress now has

the power to regulate its production and distribution. Respondents’

Cite as: 545 U. S. ____ (2005) 25

Opinion of the Court

beyond what is required by California law. The CSA

requires manufacturers, physicians, pharmacies, and

other handlers of controlled substances to comply with

statutory and regulatory provisions mandating registra-

tion with the DEA, compliance with specific production

quotas, security controls to guard against diversion, re-

cordkeeping and reporting obligations, and prescription

requirements. See 21 U. S. C. §§821–830; 21 CFR §1301 et

seq. (2004). Furthermore, the dispensing of new drugs,

even when doctors approve their use, must await federal

approval. United States v. Rutherford, 442 U. S. 544

(1979). Accordingly, the mere fact that marijuana—like

virtually every other controlled substance regulated by the

CSA—is used for medicinal purposes cannot possibly serve

to distinguish it from the core activities regulated by the

CSA.

Nor can it serve as an “objective marke[r]” or “objective

facto[r]” to arbitrarily narrow the relevant class as the

dissenters suggest, post, at 6 (O’CONNOR, J., dissenting);

post, at 12 (THOMAS, J., dissenting). More fundamentally,

if, as the principal dissent contends, the personal cultiva-

tion, possession, and use of marijuana for medicinal pur-

poses is beyond the “ ‘outer limits’ of Congress’ Commerce

Clause authority,” post, at 1 (O’CONNOR, J., dissenting), it

must also be true that such personal use of marijuana (or

any other homegrown drug) for recreational purposes is

also beyond those “ ‘outer limits,’ ” whether or not a State

elects to authorize or even regulate such use. JUSTICE

THOMAS’ separate dissent suffers from the same sweeping

implications. That is, the dissenters’ rationale logically

extends to place any federal regulation (including quality,

prescription, or quantity controls) of any locally cultivated

and possessed controlled substance for any purpose be-

——————

submission, if accepted, would place all homegrown medical substances

beyond the reach of Congress’ regulatory jurisdiction.

26 GONZALES v. RAICH

Opinion of the Court

yond the “ ‘outer limits’ ” of Congress’ Commerce Clause

authority. One need not have a degree in economics to

understand why a nationwide exemption for the vast

quantity of marijuana (or other drugs) locally cultivated

for personal use (which presumably would include use by

friends, neighbors, and family members) may have a

substantial impact on the interstate market for this ex-

traordinarily popular substance. The congressional judg-

ment that an exemption for such a significant segment of

the total market would undermine the orderly enforce-

ment of the entire regulatory scheme is entitled to a

strong presumption of validity. Indeed, that judgment is

not only rational, but “visible to the naked eye,” Lopez, 514

U. S., at 563, under any commonsense appraisal of the

probable consequences of such an open-ended exemption.

Second, limiting the activity to marijuana possession

and cultivation “in accordance with state law” cannot

serve to place respondents’ activities beyond congressional

reach. The Supremacy Clause unambiguously provides

that if there is any conflict between federal and state law,

federal law shall prevail. It is beyond peradventure that

federal power over commerce is “ ‘superior to that of the

States to provide for the welfare or necessities of their

inhabitants,’ ” however legitimate or dire those necessities

may be. Wirtz, 392 U. S., at 196 (quoting Sanitary Dist. of

Chicago v. United States, 266 U. S. 405, 426 (1925)). See

also 392 U. S., at 195–196; Wickard, 317 U. S., at 124

(“ ‘[N]o form of state activity can constitutionally thwart

the regulatory power granted by the commerce clause to

Congress’ ”). Just as state acquiescence to federal regula-

tion cannot expand the bounds of the Commerce Clause,

see, e.g., Morrison, 529 U. S., at 661–662 (BREYER, J.,

dissenting) (noting that 38 States requested federal inter-

vention), so too state action cannot circumscribe Congress’

plenary commerce power. See United States v. Darby, 312

U. S. 100, 114 (1941) (“That power can neither be enlarged

Cite as: 545 U. S. ____ (2005) 27

Opinion of the Court

nor diminished by the exercise or non-exercise of state

power”).38

Respondents acknowledge this proposition, but nonethe-

less contend that their activities were not “an essential

part of a larger regulatory scheme” because they had been

“isolated by the State of California, and [are] policed by

the State of California,” and thus remain “entirely sepa-

rated from the market.” Tr. of Oral Arg. 27. The dissent-

ers fall prey to similar reasoning. See n. 38, supra this

page. The notion that California law has surgically ex-

——————

38 That is so even if California’s current controls (enacted eight years

after the Compassionate Use Act was passed) are “[e]ffective,” as the

dissenters would have us blindly presume, post, at 15 (O’CONNOR, J.,

dissenting); post, at 6, 12 (THOMAS, J., dissenting). California’s decision

(made 34 years after the CSA was enacted) to impose “stric[t] controls”

on the “cultivation and possession of marijuana for medical purposes,”

post, at 6 (THOMAS, J., dissenting), cannot retroactively divest Congress

of its authority under the Commerce Clause. Indeed, JUSTICE THOMAS’

urgings to the contrary would turn the Supremacy Clause on its head,

and would resurrect limits on congressional power that have long since

been rejected. See post, at 8 (SCALIA, J., concurring in judgment)

(quoting McCulloch v. Maryland, 4 Wheat. 316, 424 (1819)) (“ ‘To impose

on [Congress] the necessity of resorting to means which it cannot control,

which another government may furnish or withhold, would render its

course precarious, the result of its measures uncertain, and create a

dependence on other governments, which might disappoint its most

important designs, and is incompatible with the language of the constitu-

tion’ ”).

Moreover, in addition to casting aside more than a century of this

Court’s Commerce Clause jurisprudence, it is noteworthy that JUSTICE

THOMAS’ suggestion that States possess the power to dictate the extent of

Congress’ commerce power would have far-reaching implications beyond

the facts of this case. For example, under his reasoning, Congress would

be equally powerless to regulate, let alone prohibit, the intrastate

possession, cultivation, and use of marijuana for recreational purposes,

an activity which all States “strictly contro[l].” Indeed, his rationale

seemingly would require Congress to cede its constitutional power to

regulate commerce whenever a State opts to exercise its “traditional

police powers to define the criminal law and to protect the health,

safety, and welfare of their citizens.” Post, at 9–10 (dissenting opinion).

28 GONZALES v. RAICH

Opinion of the Court

cised a discrete activity that is hermetically sealed off

from the larger interstate marijuana market is a dubious

proposition, and, more importantly, one that Congress

could have rationally rejected.

Indeed, that the California exemptions will have a sig-

nificant impact on both the supply and demand sides of

the market for marijuana is not just “plausible” as the

principal dissent concedes, post, at 16 (O’CONNOR, J.,

dissenting), it is readily apparent. The exemption for

physicians provides them with an economic incentive to

grant their patients permission to use the drug. In contrast

to most prescriptions for legal drugs, which limit the dosage

and duration of the usage, under California law the doctor’s

permission to recommend marijuana use is open-ended.

The authority to grant permission whenever the doctor

determines that a patient is afflicted with “any other illness

for which marijuana provides relief,” Cal. Health & Safety

Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), is broad

enough to allow even the most scrupulous doctor to conclude

that some recreational uses would be therapeutic.39 And

our cases have taught us that there are some unscrupulous

physicians who overprescribe when it is sufficiently profit-

able to do so.40

The exemption for cultivation by patients and caregivers

can only increase the supply of marijuana in the California

market.41 The likelihood that all such production will

——————

39 California’s Compassionate Use Act has since been amended, limit-

ing the catchall category to “[a]ny other chronic or persistent medical

symptom that either: . . . [s]ubstantially limits the ability of the person

to conduct one or more major life activities as defined” in the Americans

with Disabilities Act of 1990, or “[i]f not alleviated, may cause serious

harm to the patient’s safety or physical or mental health.” Cal. Health

& Safety Code Ann. §§11362.7(h)(12)(A) to (12)(B) (West Supp. 2005).

40 See, e.g., United States v. Moore, 423 U. S. 122 (1975); United States

v. Doremus, 249 U. S. 86 (1919).

41 The state policy allows patients to possess up to eight ounces of

Cite as: 545 U. S. ____ (2005) 29

Opinion of the Court

promptly terminate when patients recover or will precisely

match the patients’ medical needs during their convales-

cence seems remote; whereas the danger that excesses will

satisfy some of the admittedly enormous demand for recrea-

tional use seems obvious.42 Moreover, that the national and

international narcotics trade has thrived in the face of

vigorous criminal enforcement efforts suggests that no small

number of unscrupulous people will make use of the Cali-

fornia exemptions to serve their commercial ends whenever

it is feasible to do so.43 Taking into account the fact that

——————

dried marijuana, and to cultivate up to 6 mature or 12 immature

plants. Cal. Health & Safety Code Ann. §11362.77(a) (West Supp.

2005). However, the quantity limitations serve only as a floor. Based

on a doctor’s recommendation, a patient can possess whatever quantity

is necessary to satisfy his medical needs, and cities and counties are

given carte blanche to establish more generous limits. Indeed, several

cities and counties have done just that. For example, patients residing

in the cities of Oakland and Santa Cruz and in the counties of Sonoma

and Tehama are permitted to possess up to 3 pounds of processed

marijuana. Reply Brief for United States 19 (citing Proposition 215

Enforcement Guidelines). Putting that quantity in perspective, 3

pounds of marijuana yields roughly 3,000 joints or cigarettes. Execu-

tive Office of the President, Office of National Drug Control Policy,

What America’s Users Spend on Illegal Drugs 24 (Dec. 2001),

http://www.whitehousedrugpolicy.gov/publications/pdf/american_users_

spend_2002.pdf. And the street price for that amount can range

anywhere from $900 to $24,000. DEA, Illegal Drug Price and Purity

Report (Apr. 2003) (DEA–02058).

42 For example, respondent Raich attests that she uses 2.5 ounces of

cannabis a week. App. 82. Yet as a resident of Oakland, she is entitled

to possess up to 3 pounds of processed marijuana at any given time,

nearly 20 times more than she uses on a weekly basis.

43 See, e.g., People ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383,

1386–1387 (1997) (recounting how a Cannabis Buyers’ Club engaged in

an “indiscriminate and uncontrolled pattern of sale to thousands of

persons among the general public, including persons who had not

demonstrated any recommendation or approval of a physician and, in

fact, some of whom were not under the care of a physician, such as

undercover officers,” and noting that “some persons who had purchased

marijuana on respondents’ premises were reselling it unlawfully on the

30 GONZALES v. RAICH

Opinion of the Court

California is only one of at least nine States to have author-

ized the medical use of marijuana, a fact JUSTICE

O’CONNOR’s dissent conveniently disregards in arguing that

the demonstrated effect on commerce while admittedly

“plausible” is ultimately “unsubstantiated,” post, at 14, 16,

Congress could have rationally concluded that the aggre-

gate impact on the national market of all the transactions

exempted from federal supervision is unquestionably

substantial.

So, from the “separate and distinct” class of activities

identified by the Court of Appeals (and adopted by the

dissenters), we are left with “the intrastate, noncommer-

cial cultivation, possession and use of marijuana.” 352

F. 3d, at 1229. Thus the case for the exemption comes

down to the claim that a locally cultivated product that is

used domestically rather than sold on the open market is

not subject to federal regulation. Given the findings in the

CSA and the undisputed magnitude of the commercial

market for marijuana, our decisions in Wickard v. Filburn

and the later cases endorsing its reasoning foreclose that

claim.

V

Respondents also raise a substantive due process claim

and seek to avail themselves of the medical necessity

defense. These theories of relief were set forth in their

complaint but were not reached by the Court of Appeals.

We therefore do not address the question whether judicial

relief is available to respondents on these alternative

bases. We do note, however, the presence of another

avenue of relief. As the Solicitor General confirmed dur-

ing oral argument, the statute authorizes procedures for

the reclassification of Schedule I drugs. But perhaps even

more important than these legal avenues is the democratic

——————

street”).

Cite as: 545 U. S. ____ (2005) 31

Opinion of the Court

process, in which the voices of voters allied with these

respondents may one day be heard in the halls of Con-

gress. Under the present state of the law, however, the

judgment of the Court of Appeals must be vacated. The

case is remanded for further proceedings consistent with

this opinion.

It is so ordered.

Cite as: 545 U. S. ____ (2005) 1

SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 03–1454

_________________

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET

AL., PETITIONERS

v. ANGEL MCCLARY RAICH ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 6, 2005]

JUSTICE SCALIA, concurring in the judgment.

I agree with the Court’s holding that the Controlled

Substances Act (CSA) may validly be applied to respon-

dents’ cultivation, distribution, and possession of mari-

juana for personal, medicinal use. I write separately

because my understanding of the doctrinal foundation on

which that holding rests is, if not inconsistent with that of

the Court, at least more nuanced.

Since Perez v. United States, 402 U. S. 146 (1971), our

cases have mechanically recited that the Commerce

Clause permits congressional regulation of three catego-

ries: (1) the channels of interstate commerce; (2) the in-

strumentalities of interstate commerce, and persons or

things in interstate commerce; and (3) activities that

“substantially affect” interstate commerce. Id., at 150; see

United States v. Morrison, 529 U. S. 598, 608–609 (2000);

United States v. Lopez, 514 U. S. 549, 558–559 (1995); Hodel

v. Virginia Surface Mining & Reclamation Assn., Inc., 452

U. S. 264, 276–277 (1981). The first two categories are self-

evident, since they are the ingredients of interstate com-

merce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189–190

(1824). The third category, however, is different in kind,

and its recitation without explanation is misleading and

incomplete.

It is misleading because, unlike the channels, instru-

2 GONZALES v. RAICH

SCALIA, J., concurring in judgment

mentalities, and agents of interstate commerce, activities

that substantially affect interstate commerce are not

themselves part of interstate commerce, and thus the

power to regulate them cannot come from the Commerce

Clause alone. Rather, as this Court has acknowledged

since at least United States v. Coombs, 12 Pet. 72 (1838),

Congress’s regulatory authority over intrastate activities

that are not themselves part of interstate commerce (in-

cluding activities that have a substantial effect on inter-

state commerce) derives from the Necessary and Proper

Clause. Id., at 78; Katzenbach v. McClung, 379 U. S. 294,

301–302 (1964); United States v. Wrightwood Dairy Co., 315

U. S. 110, 119 (1942); Shreveport Rate Cases, 234 U. S. 342,

353 (1914); United States v. E. C. Knight Co., 156 U. S. 1,

39–40 (1895) (Harlan, J., dissenting).1 And the category of

“activities that substantially affect interstate commerce,”

Lopez, supra, at 559, is incomplete because the authority to

enact laws necessary and proper for the regulation of

interstate commerce is not limited to laws governing

intrastate activities that substantially affect interstate

commerce. Where necessary to make a regulation of

interstate commerce effective, Congress may regulate even

those intrastate activities that do not themselves substan-

tially affect interstate commerce.

I

Our cases show that the regulation of intrastate activi-

ties may be necessary to and proper for the regulation of

interstate commerce in two general circumstances. Most

directly, the commerce power permits Congress not only to

devise rules for the governance of commerce between

——————

1 See also Garcia v. San Antonio Metropolitan Transit Authority, 469

U. S. 528, 584–585 (1985) (O’CONNOR, J., dissenting) (explaining that it is

through the Necessary and Proper Clause that “an intrastate activity

‘affecting’ interstate commerce can be reached through the commerce

power”).

Cite as: 545 U. S. ____ (2005) 3

SCALIA, J., concurring in judgment

States but also to facilitate interstate commerce by elimi-

nating potential obstructions, and to restrict it by elimi-

nating potential stimulants. See NLRB v. Jones & Laugh-

lin Steel Corp., 301 U. S. 1, 36–37 (1937). That is why the

Court has repeatedly sustained congressional legislation

on the ground that the regulated activities had a substan-

tial effect on interstate commerce. See, e.g., Hodel, supra,

at 281 (surface coal mining); Katzenbach, supra, at 300

(discrimination by restaurants); Heart of Atlanta Motel, Inc.

v. United States, 379 U. S. 241, 258 (1964) (discrimination

by hotels); Mandeville Island Farms v. American Crystal

Sugar Co., 334 U. S. 219, 237 (1948) (intrastate price-

fixing); Board of Trade of Chicago v. Olsen, 262 U. S. 1, 40

(1923) (activities of a local grain exchange); Stafford v.

Wallace, 258 U. S. 495, 517, 524–525 (1922) (intrastate

transactions at stockyard). Lopez and Morrison recognized

the expansive scope of Congress’s authority in this regard:

“[T]he pattern is clear. Where economic activity substan-

tially affects interstate commerce, legislation regulating

that activity will be sustained.” Lopez, supra, at 560;

Morrison, supra, at 610 (same).

This principle is not without limitation. In Lopez and

Morrison, the Court—conscious of the potential of the

“substantially affects” test to “ ‘obliterate the distinction

between what is national and what is local,’ ” Lopez, supra,

at 566–567 (quoting A. L. A. Schechter Poultry Corp. v.

United States, 295 U. S. 495, 554 (1935)); see also Morrison,

supra, at 615–616—rejected the argument that Congress

may regulate noneconomic activity based solely on the

effect that it may have on interstate commerce through a

remote chain of inferences. Lopez, supra, at 564–566;

Morrison, supra, at 617–618. “[I]f we were to accept [such]

arguments,” the Court reasoned in Lopez, “we are hard

pressed to posit any activity by an individual that Con-

gress is without power to regulate.” Lopez, supra, at 564;

see also Morrison, supra, at 615–616. Thus, although

4 GONZALES v. RAICH

SCALIA, J., concurring in judgment

Congress’s authority to regulate intrastate activity that

substantially affects interstate commerce is broad, it does

not permit the Court to “pile inference upon inference,”

Lopez, supra, at 567, in order to establish that none-

conomic activity has a substantial effect on interstate

commerce.

As we implicitly acknowledged in Lopez, however, Con-

gress’s authority to enact laws necessary and proper for

the regulation of interstate commerce is not limited to

laws directed against economic activities that have a

substantial effect on interstate commerce. Though the

conduct in Lopez was not economic, the Court nevertheless

recognized that it could be regulated as “an essential part

of a larger regulation of economic activity, in which the

regulatory scheme could be undercut unless the intrastate

activity were regulated.” 514 U. S., at 561. This state-

ment referred to those cases permitting the regulation of

intrastate activities “which in a substantial way interfere

with or obstruct the exercise of the granted power.”

Wrightwood Dairy Co., 315 U. S., at 119; see also United

States v. Darby, 312 U. S. 100, 118–119 (1941); Shreveport

Rate Cases, 234 U. S., at 353. As the Court put it in

Wrightwood Dairy, where Congress has the authority to

enact a regulation of interstate commerce, “it possesses

every power needed to make that regulation effective.”

315 U. S., at 118–119.

Although this power “to make . . . regulation effective”

commonly overlaps with the authority to regulate eco-

nomic activities that substantially affect interstate com-

merce,2 and may in some cases have been confused with

——————

2 Wickard v. Filburn, 317 U. S. 111 (1942), presented such a case.

Because the unregulated production of wheat for personal consumption

diminished demand in the regulated wheat market, the Court said, it

carried with it the potential to disrupt Congress’s price regulation by

driving down prices in the market. Id., at 127–129. This potential

disruption of Congress’s interstate regulation, and not only the effect

Cite as: 545 U. S. ____ (2005) 5

SCALIA, J., concurring in judgment

that authority, the two are distinct. The regulation of an

intrastate activity may be essential to a comprehensive

regulation of interstate commerce even though the intra-

state activity does not itself “substantially affect” inter-

state commerce. Moreover, as the passage from Lopez

quoted above suggests, Congress may regulate even none-

conomic local activity if that regulation is a necessary part

of a more general regulation of interstate commerce. See

Lopez, supra, at 561. The relevant question is simply

whether the means chosen are “reasonably adapted” to the

attainment of a legitimate end under the commerce power.

See Darby, supra, at 121.

In Darby, for instance, the Court explained that “Con-

gress, having . . . adopted the policy of excluding from

interstate commerce all goods produced for the commerce

which do not conform to the specified labor standards,”

312 U. S., at 121, could not only require employers en-

gaged in the production of goods for interstate commerce

to conform to wage and hour standards, id., at 119–121,

but could also require those employers to keep employ-

ment records in order to demonstrate compliance with the

regulatory scheme, id., at 125. While the Court sustained

the former regulation on the alternative ground that the

activity it regulated could have a “great effect” on inter-

state commerce, id., at 122–123, it affirmed the latter on

the sole ground that “[t]he requirement for records even of

the intrastate transaction is an appropriate means to a

legitimate end,” id., at 125.

As the Court said in the Shreveport Rate Cases, the

Necessary and Proper Clause does not give “Congress . . .

the authority to regulate the internal commerce of a State,

as such,” but it does allow Congress “to take all measures

necessary or appropriate to” the effective regulation of the

——————

that personal consumption of wheat had on interstate commerce,

justified Congress’s regulation of that conduct. Id., at 128–129.

6 GONZALES v. RAICH

SCALIA, J., concurring in judgment

interstate market, “although intrastate transactions . . .

may thereby be controlled.” 234 U. S., at 353; see also

Jones & Laughlin Steel Corp., 301 U. S., at 38 (the logic of

the Shreveport Rate Cases is not limited to instrumentali-

ties of commerce).

II

Today’s principal dissent objects that, by permitting

Congress to regulate activities necessary to effective inter-

state regulation, the Court reduces Lopez and Morrison to

“little more than a drafting guide.” Post, at 5 (opinion of

O’CONNOR, J.). I think that criticism unjustified. Unlike

the power to regulate activities that have a substantial

effect on interstate commerce, the power to enact laws

enabling effective regulation of interstate commerce can

only be exercised in conjunction with congressional regula-

tion of an interstate market, and it extends only to those

measures necessary to make the interstate regulation

effective. As Lopez itself states, and the Court affirms

today, Congress may regulate noneconomic intrastate

activities only where the failure to do so “could . . . under-

cut” its regulation of interstate commerce. See Lopez,

supra, at 561; ante, at 15, 21, 22. This is not a power that

threatens to obliterate the line between “what is truly

national and what is truly local.” Lopez, supra, at 567–

568.

Lopez and Morrison affirm that Congress may not regu-

late certain “purely local” activity within the States based

solely on the attenuated effect that such activity may have

in the interstate market. But those decisions do not de-

clare noneconomic intrastate activities to be categorically

beyond the reach of the Federal Government. Neither

case involved the power of Congress to exert control over

intrastate activities in connection with a more comprehen-

sive scheme of regulation; Lopez expressly disclaimed that

it was such a case, 514 U. S., at 561, and Morrison did not

Cite as: 545 U. S. ____ (2005) 7

SCALIA, J., concurring in judgment

even discuss the possibility that it was. (The Court of

Appeals in Morrison made clear that it was not. See

Brzonkala v. Virginia Polytechnic Inst., 169 F. 3d 820,

834–835 (CA4 1999) (en banc).) To dismiss this distinction

as “superficial and formalistic,” see post, at 6 (O’CONNOR,

J., dissenting), is to misunderstand the nature of the

Necessary and Proper Clause, which empowers Congress

to enact laws in effectuation of its enumerated powers that

are not within its authority to enact in isolation. See

McCulloch v. Maryland, 4 Wheat. 316, 421–422 (1819).

And there are other restraints upon the Necessary and

Proper Clause authority. As Chief Justice Marshall wrote

in McCulloch v. Maryland, even when the end is constitu-

tional and legitimate, the means must be “appropriate”

and “plainly adapted” to that end. Id., at 421. Moreover,

they may not be otherwise “prohibited” and must be “con-

sistent with the letter and spirit of the constitution.” Ibid.

These phrases are not merely hortatory. For example,

cases such as Printz v. United States, 521 U. S. 898 (1997),

and New York v. United States, 505 U. S. 144 (1992),

affirm that a law is not “ ‘proper for carrying into Execu-

tion the Commerce Clause’ ” “[w]hen [it] violates [a consti-

tutional] principle of state sovereignty.” Printz, supra, at

923–924; see also New York, supra, at 166.

III

The application of these principles to the case before us

is straightforward. In the CSA, Congress has undertaken

to extinguish the interstate market in Schedule I con-

trolled substances, including marijuana. The Commerce

Clause unquestionably permits this. The power to regu-

late interstate commerce “extends not only to those regu-

lations which aid, foster and protect the commerce, but

embraces those which prohibit it.” Darby, 312 U. S., at

113. See also Hipolite Egg Co. v. United States, 220 U. S.

45, 58 (1911); Lottery Case, 188 U. S. 321, 354 (1903). To

8 GONZALES v. RAICH

SCALIA, J., concurring in judgment

effectuate its objective, Congress has prohibited almost all

intrastate activities related to Schedule I substances—

both economic activities (manufacture, distribution, pos-

session with the intent to distribute) and noneconomic

activities (simple possession). See 21 U. S. C. §§841(a),

844(a). That simple possession is a noneconomic activity

is immaterial to whether it can be prohibited as a neces-

sary part of a larger regulation. Rather, Congress’s au-

thority to enact all of these prohibitions of intrastate

controlled-substance activities depends only upon whether

they are appropriate means of achieving the legitimate

end of eradicating Schedule I substances from interstate

commerce.

By this measure, I think the regulation must be sus-

tained. Not only is it impossible to distinguish “controlled

substances manufactured and distributed intrastate” from

“controlled substances manufactured and distributed

interstate,” but it hardly makes sense to speak in such

terms. Drugs like marijuana are fungible commodities.

As the Court explains, marijuana that is grown at home

and possessed for personal use is never more than an

instant from the interstate market—and this is so

whether or not the possession is for medicinal use or law-

ful use under the laws of a particular State.3 See ante, at

——————

3 The principal dissent claims that, if this is sufficient to sustain the

regulation at issue in this case, then it should also have been sufficient

to sustain the regulation at issue in United States v. Lopez, 514 U. S.

549 (1995). See post, at 11–12 (arguing that “we could have surmised

in Lopez that guns in school zones are ‘never more than an instant from

the interstate market’ in guns already subject to federal regulation,

recast Lopez as a Necessary and Proper Clause case, and thereby

upheld the Gun-Free School Zones Act”). This claim founders upon the

shoals of Lopez itself, which made clear that the statute there at issue

was “not an essential part of a larger regulation of economic activity.”

Lopez, supra, at 561 (emphasis added). On the dissent’s view of things,

that statement is inexplicable. Of course it is in addition difficult to

imagine what intelligible scheme of regulation of the interstate market

Cite as: 545 U. S. ____ (2005) 9

SCALIA, J., concurring in judgment

23–30. Congress need not accept on faith that state law

will be effective in maintaining a strict division between a

lawful market for “medical” marijuana and the more

general marijuana market. See id., at 26–27, and n. 38.

“To impose on [Congress] the necessity of resorting to

means which it cannot control, which another government

may furnish or withhold, would render its course precari-

ous, the result of its measures uncertain, and create a

dependence on other governments, which might disap-

point its most important designs, and is incompatible with

the language of the constitution.” McCulloch, supra, at

424.

Finally, neither respondents nor the dissenters suggest

any violation of state sovereignty of the sort that would

render this regulation “inappropriate,” id., at 421—except

to argue that the CSA regulates an area typically left to

state regulation. See post, at 6–7, 11 (opinion of

O’CONNOR, J.); post, at 8–9 (opinion of THOMAS, J.); Brief

for Respondents 39–42. That is not enough to render

federal regulation an inappropriate means. The Court has

repeatedly recognized that, if authorized by the commerce

power, Congress may regulate private endeavors “even

when [that regulation] may pre-empt express state-law

determinations contrary to the result which has com-

mended itself to the collective wisdom of Congress.” Na-

tional League of Cities v. Usery, 426 U. S. 833, 840 (1976);

see Cleveland v. United States, 329 U. S. 14, 19 (1946);

——————

in guns could have as an appropriate means of effectuation the prohibi-

tion of guns within 1000 feet of schools (and nowhere else). The dissent

points to a federal law, 18 U. S. C. §922(b)(1), barring licensed dealers

from selling guns to minors, see post, at 12, but the relationship be-

tween the regulatory scheme of which §922(b)(1) is a part (requiring all

dealers in firearms that have traveled in interstate commerce to be

licensed, see §922(a)) and the statute at issue in Lopez approaches the

nonexistent—which is doubtless why the Government did not attempt

to justify the statute on the basis of that relationship.

10 GONZALES v. RAICH

SCALIA, J., concurring in judgment

McCulloch, supra, at 424. At bottom, respondents’ state-

sovereignty argument reduces to the contention that

federal regulation of the activities permitted by Califor-

nia’s Compassionate Use Act is not sufficiently necessary

to be “necessary and proper” to Congress’s regulation of

the interstate market. For the reasons given above and in

the Court’s opinion, I cannot agree.

* * *

I thus agree with the Court that, however the class of

regulated activities is subdivided, Congress could rea-

sonably conclude that its objective of prohibiting mari-

juana from the interstate market “could be undercut” if

those activities were excepted from its general scheme of

regulation. See Lopez, 514 U. S., at 561. That is sufficient

to authorize the application of the CSA to respondents.

Cite as: 545 U. S. ____ (2005) 1

O’CONNOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 03–1454

_________________

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET

AL., PETITIONERS

v. ANGEL MCCLARY RAICH ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 6, 2005]

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and

JUSTICE THOMAS join as to all but Part III, dissenting.

We enforce the “outer limits” of Congress’ Commerce

Clause authority not for their own sake, but to protect

historic spheres of state sovereignty from excessive federal

encroachment and thereby to maintain the distribution of

power fundamental to our federalist system of govern-

ment. United States v. Lopez, 514 U. S. 549, 557 (1995);

NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37

(1937). One of federalism’s chief virtues, of course, is that

it promotes innovation by allowing for the possibility that

“a single courageous State may, if its citizens choose, serve

as a laboratory; and try novel social and economic experi-

ments without risk to the rest of the country.” New State

Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis,

J., dissenting).

This case exemplifies the role of States as laboratories.

The States’ core police powers have always included au-

thority to define criminal law and to protect the health,

safety, and welfare of their citizens. Brecht v. Abraham-

son, 507 U. S. 619, 635 (1993); Whalen v. Roe, 429 U. S.

589, 603, n. 30 (1977). Exercising those powers, California

(by ballot initiative and then by legislative codification)

has come to its own conclusion about the difficult and

sensitive question of whether marijuana should be avail-

2 GONZALES v. RAICH

O’CONNOR, J., dissenting

able to relieve severe pain and suffering. Today the Court

sanctions an application of the federal Controlled Sub-

stances Act that extinguishes that experiment, without

any proof that the personal cultivation, possession, and

use of marijuana for medicinal purposes, if economic

activity in the first place, has a substantial effect on inter-

state commerce and is therefore an appropriate subject of

federal regulation. In so doing, the Court announces a

rule that gives Congress a perverse incentive to legislate

broadly pursuant to the Commerce Clause—nestling

questionable assertions of its authority into comprehen-

sive regulatory schemes—rather than with precision.

That rule and the result it produces in this case are irrec-

oncilable with our decisions in Lopez, supra, and United

States v. Morrison, 529 U. S. 598 (2000). Accordingly I

dissent.

I

In Lopez, we considered the constitutionality of the Gun-

Free School Zones Act of 1990, which made it a federal

offense “for any individual knowingly to possess a firearm

. . . at a place the individual knows, or has reasonable

cause to believe, is a school zone,” 18 U. S. C.

§922(q)(2)(A). We explained that “Congress’ commerce

authority includes the power to regulate those activities

having a substantial relation to interstate commerce . . . ,

i.e., those activities that substantially affect interstate

commerce.” 514 U. S., at 558–559 (citation omitted). This

power derives from the conjunction of the Commerce

Clause and the Necessary and Proper Clause. Garcia v.

San Antonio Metropolitan Transit Authority, 469 U. S.

528, 585–586 (1985) (O’CONNOR, J., dissenting) (explain-

ing that United States v. Darby, 312 U. S. 100 (1941),

United States v. Wrightwood Dairy Co., 315 U. S. 110

(1942), and Wickard v. Filburn, 317 U. S. 111 (1942),

based their expansion of the commerce power on the Nec-

Cite as: 545 U. S. ____ (2005) 3

O’CONNOR, J., dissenting

essary and Proper Clause, and that “the reasoning of these

cases underlies every recent decision concerning the reach

of Congress to activities affecting interstate commerce”);

ante, at 2 (SCALIA, J., concurring in judgment). We held in

Lopez that the Gun-Free School Zones Act could not be

sustained as an exercise of that power.

Our decision about whether gun possession in school

zones substantially affected interstate commerce turned

on four considerations. Lopez, supra, at 559–567; see also

Morrison, supra, at 609–613. First, we observed that our

“substantial effects” cases generally have upheld federal

regulation of economic activity that affected interstate

commerce, but that §922(q) was a criminal statute having

“nothing to do with ‘commerce’ or any sort of economic

enterprise.” Lopez, 514 U. S., at 561. In this regard, we

also noted that “[s]ection 922(q) is not an essential part of

a larger regulation of economic activity, in which the

regulatory scheme could be undercut unless the intrastate

activity were regulated. It cannot, therefore, be sustained

under our cases upholding regulations of activities that

arise out of or are connected with a commercial transac-

tion, which viewed in the aggregate, substantially affects

interstate commerce.” Ibid. Second, we noted that the

statute contained no express jurisdictional requirement

establishing its connection to interstate commerce. Ibid.

Third, we found telling the absence of legislative find-

ings about the regulated conduct’s impact on interstate

commerce. We explained that while express legislative

findings are neither required nor, when provided, disposi-

tive, findings “enable us to evaluate the legislative judg-

ment that the activity in question substantially affect[s]

interstate commerce, even though no such substantial

effect [is] visible to the naked eye.” Id., at 563. Finally,

we rejected as too attenuated the Government’s argument

that firearm possession in school zones could result in

violent crime which in turn could adversely affect the

4 GONZALES v. RAICH

O’CONNOR, J., dissenting

national economy. Id., at 563–567. The Constitution, we

said, does not tolerate reasoning that would “convert

congressional authority under the Commerce Clause to a

general police power of the sort retained by the States.”

Id., at 567. Later in Morrison, supra, we relied on the

same four considerations to hold that §40302 of the Vio-

lence Against Women Act of 1994, 42 U. S. C. §13981,

exceeded Congress’ authority under the Commerce Clause.

In my view, the case before us is materially indistin-

guishable from Lopez and Morrison when the same con-

siderations are taken into account.

II

A

What is the relevant conduct subject to Commerce

Clause analysis in this case? The Court takes its cues

from Congress, applying the above considerations to the

activity regulated by the Controlled Substances Act (CSA)

in general. The Court’s decision rests on two facts about

the CSA: (1) Congress chose to enact a single statute

providing a comprehensive prohibition on the production,

distribution, and possession of all controlled substances,

and (2) Congress did not distinguish between various

forms of intrastate noncommercial cultivation, possession,

and use of marijuana. See 21 U. S. C. §§841(a)(1), 844(a).

Today’s decision suggests that the federal regulation of

local activity is immune to Commerce Clause challenge

because Congress chose to act with an ambitious, all-

encompassing statute, rather than piecemeal. In my view,

allowing Congress to set the terms of the constitutional

debate in this way, i.e., by packaging regulation of local

activity in broader schemes, is tantamount to removing

meaningful limits on the Commerce Clause.

The Court’s principal means of distinguishing Lopez

from this case is to observe that the Gun-Free School

Zones Act of 1990 was a “brief, single-subject statute,”

Cite as: 545 U. S. ____ (2005) 5

O’CONNOR, J., dissenting

ante, at 20, see also ante, at 19, whereas the CSA is “a

lengthy and detailed statute creating a comprehensive

framework for regulating the production, distribution, and

possession of five classes of ‘controlled substances,’ ” ibid.

Thus, according to the Court, it was possible in Lopez to

evaluate in isolation the constitutionality of criminalizing

local activity (there gun possession in school zones),

whereas the local activity that the CSA targets (in this

case cultivation and possession of marijuana for personal

medicinal use) cannot be separated from the general drug

control scheme of which it is a part.

Today’s decision allows Congress to regulate intrastate

activity without check, so long as there is some implication

by legislative design that regulating intrastate activity is

essential (and the Court appears to equate “essential” with

“necessary”) to the interstate regulatory scheme. Seizing

upon our language in Lopez that the statute prohibiting

gun possession in school zones was “not an essential part

of a larger regulation of economic activity, in which the

regulatory scheme could be undercut unless the intrastate

activity were regulated,” 514 U. S., at 561, the Court

appears to reason that the placement of local activity in a

comprehensive scheme confirms that it is essential to that

scheme. Ante, at 21–22. If the Court is right, then Lopez

stands for nothing more than a drafting guide: Congress

should have described the relevant crime as “transfer or

possession of a firearm anywhere in the nation”—thus

including commercial and noncommercial activity, and

clearly encompassing some activity with assuredly sub-

stantial effect on interstate commerce. Had it done so, the

majority hints, we would have sustained its authority to

regulate possession of firearms in school zones. Further-

more, today’s decision suggests we would readily sustain a

congressional decision to attach the regulation of intra-

state activity to a pre-existing comprehensive (or even not-

so-comprehensive) scheme. If so, the Court invites in-

6 GONZALES v. RAICH

O’CONNOR, J., dissenting

creased federal regulation of local activity even if, as it

suggests, Congress would not enact a new interstate

scheme exclusively for the sake of reaching intrastate

activity, see ante, at 22, n. 33; ante, at 6 (SCALIA, J., con-

curring in judgment).

I cannot agree that our decision in Lopez contemplated

such evasive or overbroad legislative strategies with ap-

proval. Until today, such arguments have been made only

in dissent. See Morrison, 529 U. S., at 657 (BREYER, J.,

dissenting) (given that Congress can regulate “ ‘an essen-

tial part of a larger regulation of economic activity,’ ” “can

Congress save the present law by including it, or much of

it, in a broader ‘Safe Transport’ or ‘Worker Safety’ act?”).

Lopez and Morrison did not indicate that the constitution-

ality of federal regulation depends on superficial and

formalistic distinctions. Likewise I did not understand

our discussion of the role of courts in enforcing outer limits

of the Commerce Clause for the sake of maintaining the

federalist balance our Constitution requires, see Lopez,

514 U. S., at 557; id., at 578 (KENNEDY, J., concurring), as

a signal to Congress to enact legislation that is more

extensive and more intrusive into the domain of state

power. If the Court always defers to Congress as it does

today, little may be left to the notion of enumerated

powers.

The hard work for courts, then, is to identify objective

markers for confining the analysis in Commerce Clause

cases. Here, respondents challenge the constitutionality of

the CSA as applied to them and those similarly situated. I

agree with the Court that we must look beyond respon-

dents’ own activities. Otherwise, individual litigants could

always exempt themselves from Commerce Clause regula-

tion merely by pointing to the obvious—that their personal

activities do not have a substantial effect on interstate

commerce. See Maryland v. Wirtz, 392 U. S. 183, 193

(1968); Wickard, 317 U. S., at 127–128. The task is to

Cite as: 545 U. S. ____ (2005) 7

O’CONNOR, J., dissenting

identify a mode of analysis that allows Congress to regu-

late more than nothing (by declining to reduce each case to

its litigants) and less than everything (by declining to let

Congress set the terms of analysis). The analysis may not

be the same in every case, for it depends on the regulatory

scheme at issue and the federalism concerns implicated.

See generally Lopez, 514 U. S., at 567; id., at 579

(KENNEDY, J., concurring).

A number of objective markers are available to confine

the scope of constitutional review here. Both federal and

state legislation—including the CSA itself, the California

Compassionate Use Act, and other state medical mari-

juana legislation—recognize that medical and nonmedical

(i.e., recreational) uses of drugs are realistically distinct

and can be segregated, and regulate them differently. See

21 U. S. C. §812; Cal. Health & Safety Code Ann. §11362.5

(West Supp. 2005); ante, at 1 (opinion of the Court). Re-

spondents challenge only the application of the CSA to

medicinal use of marijuana. Cf. United States v. Raines,

362 U. S. 17, 20–22 (1960) (describing our preference for

as-applied rather than facial challenges). Moreover, be-

cause fundamental structural concerns about dual sover-

eignty animate our Commerce Clause cases, it is relevant

that this case involves the interplay of federal and state

regulation in areas of criminal law and social policy, where

“States lay claim by right of history and expertise.” Lopez,

supra, at 583 (KENNEDY, J., concurring); see also Morri-

son, supra, at 617–619; Lopez, supra, at 580 (KENNEDY, J.,

concurring) (“The statute before us upsets the federal

balance to a degree that renders it an unconstitutional

assertion of the commerce power, and our intervention is

required”); cf. Garcia, 469 U. S., at 586 (O’CONNOR, J.,

dissenting) (“[S]tate autonomy is a relevant factor in

assessing the means by which Congress exercises its

powers” under the Commerce Clause). California, like

other States, has drawn on its reserved powers to distin-

8 GONZALES v. RAICH

O’CONNOR, J., dissenting

guish the regulation of medicinal marijuana. To ascertain

whether Congress’ encroachment is constitutionally justi-

fied in this case, then, I would focus here on the personal

cultivation, possession, and use of marijuana for medicinal

purposes.

B

Having thus defined the relevant conduct, we must

determine whether, under our precedents, the conduct is

economic and, in the aggregate, substantially affects

interstate commerce. Even if intrastate cultivation and

possession of marijuana for one’s own medicinal use can

properly be characterized as economic, and I question

whether it can, it has not been shown that such activity

substantially affects interstate commerce. Similarly, it is

neither self-evident nor demonstrated that regulating

such activity is necessary to the interstate drug control

scheme.

The Court’s definition of economic activity is breathtak-

ing. It defines as economic any activity involving the

production, distribution, and consumption of commodities.

And it appears to reason that when an interstate market

for a commodity exists, regulating the intrastate manufac-

ture or possession of that commodity is constitutional

either because that intrastate activity is itself economic, or

because regulating it is a rational part of regulating its

market. Putting to one side the problem endemic to the

Court’s opinion—the shift in focus from the activity at

issue in this case to the entirety of what the CSA regu-

lates, see Lopez, supra, at 565 (“depending on the level of

generality, any activity can be looked upon as commer-

cial”)—the Court’s definition of economic activity for pur-

poses of Commerce Clause jurisprudence threatens to

sweep all of productive human activity into federal regula-

tory reach.

The Court uses a dictionary definition of economics to

Cite as: 545 U. S. ____ (2005) 9

O’CONNOR, J., dissenting

skirt the real problem of drawing a meaningful line be-

tween “what is national and what is local,” Jones &

Laughlin Steel, 301 U. S., at 37. It will not do to say that

Congress may regulate noncommercial activity simply

because it may have an effect on the demand for commer-

cial goods, or because the noncommercial endeavor can, in

some sense, substitute for commercial activity. Most

commercial goods or services have some sort of privately

producible analogue. Home care substitutes for daycare.

Charades games substitute for movie tickets. Backyard or

windowsill gardening substitutes for going to the super-

market. To draw the line wherever private activity affects

the demand for market goods is to draw no line at all, and

to declare everything economic. We have already rejected

the result that would follow—a federal police power.

Lopez, supra, at 564.

In Lopez and Morrison, we suggested that economic

activity usually relates directly to commercial activity.

See Morrison, 529 U. S., at 611, n. 4 (intrastate activities

that have been within Congress’ power to regulate have

been “of an apparent commercial character”); Lopez, 514

U. S., at 561 (distinguishing the Gun-Free School Zones

Act of 1990 from “activities that arise out of or are con-

nected with a commercial transaction”). The homegrown

cultivation and personal possession and use of marijuana

for medicinal purposes has no apparent commercial char-

acter. Everyone agrees that the marijuana at issue in this

case was never in the stream of commerce, and neither

were the supplies for growing it. (Marijuana is highly

unusual among the substances subject to the CSA in that

it can be cultivated without any materials that have trav-

eled in interstate commerce.) Lopez makes clear that

possession is not itself commercial activity. Ibid. And

respondents have not come into possession by means of

any commercial transaction; they have simply grown, in

their own homes, marijuana for their own use, without

10 GONZALES v. RAICH

O’CONNOR, J., dissenting

acquiring, buying, selling, or bartering a thing of value.

Cf. id., at 583 (KENNEDY, J., concurring) (“The statute now

before us forecloses the States from experimenting . . . and

it does so by regulating an activity beyond the realm of

commerce in the ordinary and usual sense of that term”).

The Court suggests that Wickard, which we have identi-

fied as “perhaps the most far reaching example of Com-

merce Clause authority over intrastate activity,” Lopez,

supra, at 560, established federal regulatory power over

any home consumption of a commodity for which a na-

tional market exists. I disagree. Wickard involved a

challenge to the Agricultural Adjustment Act of 1938

(AAA), which directed the Secretary of Agriculture to set

national quotas on wheat production, and penalties for

excess production. 317 U. S., at 115–116. The AAA itself

confirmed that Congress made an explicit choice not to

reach—and thus the Court could not possibly have ap-

proved of federal control over—small-scale, noncommercial

wheat farming. In contrast to the CSA’s limitless asser-

tion of power, Congress provided an exemption within the

AAA for small producers. When Filburn planted the

wheat at issue in Wickard, the statute exempted plantings

less than 200 bushels (about six tons), and when he har-

vested his wheat it exempted plantings less than six acres.

Id., at 130, n. 30. Wickard, then, did not extend Com-

merce Clause authority to something as modest as the

home cook’s herb garden. This is not to say that Congress

may never regulate small quantities of commodities pos-

sessed or produced for personal use, or to deny that it

sometimes needs to enact a zero tolerance regime for such

commodities. It is merely to say that Wickard did not hold

or imply that small-scale production of commodities is

always economic, and automatically within Congress’

reach.

Even assuming that economic activity is at issue in this

case, the Government has made no showing in fact that

Cite as: 545 U. S. ____ (2005) 11

O’CONNOR, J., dissenting

the possession and use of homegrown marijuana for medi-

cal purposes, in California or elsewhere, has a substantial

effect on interstate commerce. Similarly, the Government

has not shown that regulating such activity is necessary to

an interstate regulatory scheme. Whatever the specific

theory of “substantial effects” at issue (i.e., whether the

activity substantially affects interstate commerce,

whether its regulation is necessary to an interstate regu-

latory scheme, or both), a concern for dual sovereignty

requires that Congress’ excursion into the traditional

domain of States be justified.

That is why characterizing this as a case about the

Necessary and Proper Clause does not change the analysis

significantly. Congress must exercise its authority under

the Necessary and Proper Clause in a manner consistent

with basic constitutional principles. Garcia, 469 U. S., at

585 (O’CONNOR, J., dissenting) (“It is not enough that the

‘end be legitimate’; the means to that end chosen by Con-

gress must not contravene the spirit of the Constitution”).

As JUSTICE SCALIA recognizes, see ante, at 7 (opinion

concurring in judgment), Congress cannot use its author-

ity under the Clause to contravene the principle of state

sovereignty embodied in the Tenth Amendment. Ibid.

Likewise, that authority must be used in a manner consis-

tent with the notion of enumerated powers—a structural

principle that is as much part of the Constitution as the

Tenth Amendment’s explicit textual command. Accord-

ingly, something more than mere assertion is required

when Congress purports to have power over local activity

whose connection to an intrastate market is not self-

evident. Otherwise, the Necessary and Proper Clause will

always be a back door for unconstitutional federal regula-

tion. Cf. Printz v. United States, 521 U. S. 898, 923 (1997)

(the Necessary and Proper Clause is “the last, best hope of

those who defend ultra vires congressional action”). In-

deed, if it were enough in “substantial effects” cases for

12 GONZALES v. RAICH

O’CONNOR, J., dissenting

the Court to supply conceivable justifications for intra-

state regulation related to an interstate market, then we

could have surmised in Lopez that guns in school zones

are “never more than an instant from the interstate mar-

ket” in guns already subject to extensive federal regula-

tion, ante, at 8 (SCALIA, J., concurring in judgment), recast

Lopez as a Necessary and Proper Clause case, and thereby

upheld the Gun-Free School Zones Act of 1990. (According

to the Court’s and the concurrence’s logic, for example, the

Lopez court should have reasoned that the prohibition on

gun possession in school zones could be an appropriate

means of effectuating a related prohibition on “sell[ing]” or

“deliver[ing]” firearms or ammunition to “any individual

who the licensee knows or has reasonable cause to believe

is less than eighteen years of age.” 18 U. S. C. §922(b)(1)

(1988 ed., Supp. II).)

There is simply no evidence that homegrown medicinal

marijuana users constitute, in the aggregate, a sizable

enough class to have a discernable, let alone substantial,

impact on the national illicit drug market—or otherwise to

threaten the CSA regime. Explicit evidence is helpful

when substantial effect is not “visible to the naked eye.”

See Lopez, 514 U. S., at 563. And here, in part because

common sense suggests that medical marijuana users may

be limited in number and that California’s Compassionate

Use Act and similar state legislation may well isolate

activities relating to medicinal marijuana from the illicit

market, the effect of those activities on interstate drug

traffic is not self-evidently substantial.

In this regard, again, this case is readily distinguishable

from Wickard. To decide whether the Secretary could

regulate local wheat farming, the Court looked to “the

actual effects of the activity in question upon interstate

commerce.” 317 U. S., at 120. Critically, the Court was

able to consider “actual effects” because the parties had

“stipulated a summary of the economics of the wheat

Cite as: 545 U. S. ____ (2005) 13

O’CONNOR, J., dissenting

industry.” Id., at 125. After reviewing in detail the pic-

ture of the industry provided in that summary, the Court

explained that consumption of homegrown wheat was the

most variable factor in the size of the national wheat crop,

and that on-site consumption could have the effect of

varying the amount of wheat sent to market by as much as

20 percent. Id., at 127. With real numbers at hand, the

Wickard Court could easily conclude that “a factor of such

volume and variability as home-consumed wheat would

have a substantial influence on price and market condi-

tions” nationwide. Id., at 128; see also id., at 128–129

(“This record leaves us in no doubt” about substantial

effects).

The Court recognizes that “the record in the Wickard

case itself established the causal connection between the

production for local use and the national market” and

argues that “we have before us findings by Congress to the

same effect.” Ante, at 17 (emphasis added). The Court

refers to a series of declarations in the introduction to the

CSA saying that (1) local distribution and possession of

controlled substances causes “swelling” in interstate traf-

fic; (2) local production and distribution cannot be distin-

guished from interstate production and distribution; (3)

federal control over intrastate incidents “is essential to

effective control” over interstate drug trafficking. 21

U. S. C. §§801(1)–(6). These bare declarations cannot be

compared to the record before the Court in Wickard.

They amount to nothing more than a legislative insis-

tence that the regulation of controlled substances must be

absolute. They are asserted without any supporting evi-

dence—descriptive, statistical, or otherwise. “[S]imply

because Congress may conclude a particular activity sub-

stantially affects interstate commerce does not necessarily

make it so.” Hodel v. Virginia Surface Mining & Reclama-

tion Assn., Inc., 452 U. S. 264, 311 (1981) (REHNQUIST, J.,

concurring in judgment). Indeed, if declarations like these

14 GONZALES v. RAICH

O’CONNOR, J., dissenting

suffice to justify federal regulation, and if the Court today

is right about what passes rationality review before us,

then our decision in Morrison should have come out the

other way. In that case, Congress had supplied numerous

findings regarding the impact gender-motivated violence

had on the national economy. 529 U. S., at 614; id., at

628–636 (SOUTER, J., dissenting) (chronicling findings).

But, recognizing that “ ‘ “[w]hether particular operations

affect interstate commerce sufficiently to come under the

constitutional power of Congress to regulate them is ulti-

mately a judicial rather than a legislative question,” ’ ” we

found Congress’ detailed findings inadequate. Id., at 614

(quoting Lopez, supra, at 557, n. 2, in turn quoting Heart

of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273

(1964) (Black, J., concurring)). If, as the Court claims,

today’s decision does not break with precedent, how can it

be that voluminous findings, documenting extensive hear-

ings about the specific topic of violence against women, did

not pass constitutional muster in Morrison, while the

CSA’s abstract, unsubstantiated, generalized findings

about controlled substances do?

In particular, the CSA’s introductory declarations are

too vague and unspecific to demonstrate that the federal

statutory scheme will be undermined if Congress cannot

exert power over individuals like respondents. The decla-

rations are not even specific to marijuana. (Facts about

substantial effects may be developed in litigation to com-

pensate for the inadequacy of Congress’ findings; in part

because this case comes to us from the grant of a prelimi-

nary injunction, there has been no such development.)

Because here California, like other States, has carved out

a limited class of activity for distinct regulation, the in-

adequacy of the CSA’s findings is especially glaring. The

California Compassionate Use Act exempts from other

state drug laws patients and their caregivers “who pos-

ses[s] or cultivat[e] marijuana for the personal medical

Cite as: 545 U. S. ____ (2005) 15

O’CONNOR, J., dissenting

purposes of the patient upon the written or oral recom-

mendation of a physician” to treat a list of serious medical

conditions. Cal. Health & Safety Code Ann. §§11362.5(d),

11362.7(h) (West Supp. 2005) (emphasis added). Compare

ibid. with, e.g., §11357(b) (West 1991) (criminalizing mari-

juana possession in excess of 28.5 grams); §11358 (crimi-

nalizing marijuana cultivation). The Act specifies that it

should not be construed to supersede legislation prohibit-

ing persons from engaging in acts dangerous to others, or

to condone the diversion of marijuana for nonmedical

purposes. §11362.5(b)(2) (West Supp. 2005). To promote

the Act’s operation and to facilitate law enforcement,

California recently enacted an identification card system

for qualified patients. §§11362.7–11362.83. We generally

assume States enforce their laws, see Riley v. National

Federation of Blind of N. C., Inc., 487 U. S. 781, 795

(1988), and have no reason to think otherwise here.

The Government has not overcome empirical doubt that

the number of Californians engaged in personal cultiva-

tion, possession, and use of medical marijuana, or the

amount of marijuana they produce, is enough to threaten

the federal regime. Nor has it shown that Compassionate

Use Act marijuana users have been or are realistically

likely to be responsible for the drug’s seeping into the

market in a significant way. The Government does cite

one estimate that there were over 100,000 Compassionate

Use Act users in California in 2004, Reply Brief for Peti-

tioners 16, but does not explain, in terms of proportions,

what their presence means for the national illicit drug

market. See generally Wirtz, 392 U. S., at 196, n. 27

(Congress cannot use “a relatively trivial impact on com-

merce as an excuse for broad general regulation of state or

private activities”); cf. General Accounting Office, Mari-

juana: Early Experience with Four States’ Laws That

Allow Use for Medical Purposes 21–23 (Rep. No. 03–189,

Nov. 2002), http://www.gao.gov/new.items/d03189.pdf (as

16 GONZALES v. RAICH

O’CONNOR, J., dissenting

visited June 3, 2005 and available in Clerk of Court’s case

file) (in four California counties before the identification

card system was enacted, voluntarily registered medical

marijuana patients were less than 0.5 percent of the popu-

lation; in Alaska, Hawaii, and Oregon, statewide medical

marijuana registrants represented less than 0.05 percent

of the States’ populations). It also provides anecdotal

evidence about the CSA’s enforcement. See Reply Brief for

Petitioners 17–18. The Court also offers some arguments

about the effect of the Compassionate Use Act on the

national market. It says that the California statute might

be vulnerable to exploitation by unscrupulous physicians,

that Compassionate Use Act patients may overproduce,

and that the history of the narcotics trade shows the diffi-

culty of cordoning off any drug use from the rest of the

market. These arguments are plausible; if borne out in

fact they could justify prosecuting Compassionate Use Act

patients under the federal CSA. But, without substantia-

tion, they add little to the CSA’s conclusory statements

about diversion, essentiality, and market effect. Piling

assertion upon assertion does not, in my view, satisfy the

substantiality test of Lopez and Morrison.

III

We would do well to recall how James Madison, the

father of the Constitution, described our system of joint

sovereignty to the people of New York: “The powers dele-

gated by the proposed constitution to the federal govern-

ment are few and defined. Those which are to remain in

the State governments are numerous and indefinite. . . .

The powers reserved to the several States will extend to

all the objects which, in the ordinary course of affairs,

concern the lives, liberties, and properties of the people,

and the internal order, improvement, and prosperity of the

State.” The Federalist No. 45, pp. 292–293 (C. Rossiter ed.

1961).

Cite as: 545 U. S. ____ (2005) 17

O’CONNOR, J., dissenting

Relying on Congress’ abstract assertions, the Court has

endorsed making it a federal crime to grow small amounts

of marijuana in one’s own home for one’s own medicinal

use. This overreaching stifles an express choice by some

States, concerned for the lives and liberties of their people,

to regulate medical marijuana differently. If I were a

California citizen, I would not have voted for the medical

marijuana ballot initiative; if I were a California legislator

I would not have supported the Compassionate Use Act.

But whatever the wisdom of California’s experiment with

medical marijuana, the federalism principles that have

driven our Commerce Clause cases require that room for

experiment be protected in this case. For these reasons I

dissent.

Cite as: 545 U. S. ____ (2005) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 03–1454

_________________

ALBERTO R. GONZALES, ATTORNEY GENERAL, ET

AL., PETITIONERS

v. ANGEL MCCLARY RAICH ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 6, 2005]

JUSTICE THOMAS, dissenting.

Respondents Diane Monson and Angel Raich use mari-

juana that has never been bought or sold, that has never

crossed state lines, and that has had no demonstrable

effect on the national market for marijuana. If Congress

can regulate this under the Commerce Clause, then it can

regulate virtually anything—and the Federal Government

is no longer one of limited and enumerated powers.

I

Respondents’ local cultivation and consumption of mari-

juana is not “Commerce . . . among the several States.”

U. S. Const., Art. I, §8, cl. 3. By holding that Congress

may regulate activity that is neither interstate nor com-

merce under the Interstate Commerce Clause, the Court

abandons any attempt to enforce the Constitution’s limits

on federal power. The majority supports this conclusion

by invoking, without explanation, the Necessary and

Proper Clause. Regulating respondents’ conduct, however,

is not “necessary and proper for carrying into Execution”

Congress’ restrictions on the interstate drug trade. Art. I,

§8, cl. 18. Thus, neither the Commerce Clause nor the

Necessary and Proper Clause grants Congress the power

to regulate respondents’ conduct.

2 GONZALES v. RAICH

THOMAS, J., dissenting

A

As I explained at length in United States v. Lopez, 514

U. S. 549 (1995), the Commerce Clause empowers Con-

gress to regulate the buying and selling of goods and

services trafficked across state lines. Id., at 586–589

(concurring opinion). The Clause’s text, structure, and

history all indicate that, at the time of the founding, the

term “ ‘commerce’ consisted of selling, buying, and barter-

ing, as well as transporting for these purposes.” Id., at

585 (THOMAS, J., concurring). Commerce, or trade, stood

in contrast to productive activities like manufacturing and

agriculture. Id., at 586–587 (THOMAS, J., concurring).

Throughout founding-era dictionaries, Madison’s notes

from the Constitutional Convention, The Federalist Pa-

pers, and the ratification debates, the term “commerce” is

consistently used to mean trade or exchange—not all

economic or gainful activity that has some attenuated

connection to trade or exchange. Ibid. (THOMAS, J., con-

curring); Barnett, The Original Meaning of the Commerce

Clause, 68 U. Chi. L. Rev. 101, 112–125 (2001). The term

“commerce” commonly meant trade or exchange (and

shipping for these purposes) not simply to those involved

in the drafting and ratification processes, but also to the

general public. Barnett, New Evidence of the Original

Meaning of the Commerce Clause, 55 Ark. L. Rev. 847,

857–862 (2003).

Even the majority does not argue that respondents’ con-

duct is itself “Commerce among the several States.” Art. I,

§8, cl. 3. Ante, at 19. Monson and Raich neither buy nor

sell the marijuana that they consume. They cultivate

their cannabis entirely in the State of California—it never

crosses state lines, much less as part of a commercial

transaction. Certainly no evidence from the founding

suggests that “commerce” included the mere possession of

a good or some purely personal activity that did not in-

volve trade or exchange for value. In the early days of the

Cite as: 545 U. S. ____ (2005) 3

THOMAS, J., dissenting

Republic, it would have been unthinkable that Congress

could prohibit the local cultivation, possession, and con-

sumption of marijuana.

On this traditional understanding of “commerce,” the

Controlled Substances Act (CSA), 21 U. S. C. §801 et seq.,

regulates a great deal of marijuana trafficking that is

interstate and commercial in character. The CSA does

not, however, criminalize only the interstate buying and

selling of marijuana. Instead, it bans the entire market—

intrastate or interstate, noncommercial or commercial—

for marijuana. Respondents are correct that the CSA

exceeds Congress’ commerce power as applied to their

conduct, which is purely intrastate and noncommercial.

B

More difficult, however, is whether the CSA is a valid

exercise of Congress’ power to enact laws that are “neces-

sary and proper for carrying into Execution” its power to

regulate interstate commerce. Art. I, §8, cl. 18. The Neces-

sary and Proper Clause is not a warrant to Congress to

enact any law that bears some conceivable connection to the

exercise of an enumerated power.1 Nor is it, however, a

command to Congress to enact only laws that are absolutely

indispensable to the exercise of an enumerated power.2

In McCulloch v. Maryland, 4 Wheat. 316 (1819), this

Court, speaking through Chief Justice Marshall, set forth

a test for determining when an Act of Congress is permis-

sible under the Necessary and Proper Clause:

——————

1 McCulloch v. Maryland, 4 Wheat. 316, 419–421 (1819); Madison, The

Bank Bill, House of Representatives (Feb. 2, 1791), in 3 The Founders’

Constitution 244 (P. Kurland & R. Lerner eds. 1987) (requiring “direct”

rather than “remote” means-end fit); Hamilton, Opinion on the Constitu-

tionality of the Bank (Feb. 23, 1791), in id., at 248, 250 (requiring “obvi-

ous” means-end fit, where the end was “clearly comprehended within any

of the specified powers” of Congress).

2 McCulloch, supra, at 413–415; D. Currie, The Constitution in the

Supreme Court: The First Hundred Years 1789–1888, p. 162 (1985).

4 GONZALES v. RAICH

THOMAS, J., dissenting

“Let the end be legitimate, let it be within the scope of

the constitution, and all means which are appropriate,

which are plainly adapted to that end, which are not

prohibited, but consist with the letter and spirit of the

constitution, are constitutional.” Id., at 421.

To act under the Necessary and Proper Clause, then,

Congress must select a means that is “appropriate” and

“plainly adapted” to executing an enumerated power; the

means cannot be otherwise “prohibited” by the Constitu-

tion; and the means cannot be inconsistent with “the letter

and spirit of the [C]onstitution.” Ibid.; D. Currie, The

Constitution in the Supreme Court: The First Hundred

Years 1789–1888, pp. 163–164 (1985). The CSA, as ap-

plied to respondents’ conduct, is not a valid exercise of

Congress’ power under the Necessary and Proper Clause.

1

Congress has exercised its power over interstate com-

merce to criminalize trafficking in marijuana across state

lines. The Government contends that banning Monson

and Raich’s intrastate drug activity is “necessary and

proper for carrying into Execution” its regulation of inter-

state drug trafficking. Art. I, §8, cl. 18. See 21 U. S. C.

§801(6). However, in order to be “necessary,” the intra-

state ban must be more than “a reasonable means [of]

effectuat[ing] the regulation of interstate commerce.”

Brief for Petitioners 14; see ante, at 19 (majority opinion)

(employing rational-basis review). It must be “plainly

adapted” to regulating interstate marijuana trafficking—

in other words, there must be an “obvious, simple, and

direct relation” between the intrastate ban and the regula-

tion of interstate commerce. Sabri v. United States, 541

U. S. 600, 613 (2004) (THOMAS, J., concurring in judgment);

see also United States v. Dewitt, 9 Wall. 41, 44 (1870) (find-

ing ban on intrastate sale of lighting oils not “appropriate

and plainly adapted means for carrying into execution”

Cite as: 545 U. S. ____ (2005) 5

THOMAS, J., dissenting

Congress’ taxing power).

On its face, a ban on the intrastate cultivation, posses-

sion and distribution of marijuana may be plainly adapted

to stopping the interstate flow of marijuana. Unregulated

local growers and users could swell both the supply and

the demand sides of the interstate marijuana market,

making the market more difficult to regulate. Ante, at 9–

10, 19 (majority opinion). But respondents do not chal-

lenge the CSA on its face. Instead, they challenge it as

applied to their conduct. The question is thus whether the

intrastate ban is “necessary and proper” as applied to

medical marijuana users like respondents.3

Respondents are not regulable simply because they

belong to a large class (local growers and users of mari-

juana) that Congress might need to reach, if they also

belong to a distinct and separable subclass (local growers

and users of state-authorized, medical marijuana) that

does not undermine the CSA’s interstate ban. Ante, at 6–7

(O’CONNOR, J., dissenting). The Court of Appeals found

that respondents’ “limited use is distinct from the broader

illicit drug market,” because “th[eir] medicinal marijuana

. . . is not intended for, nor does it enter, the stream of

commerce.” Raich v. Ashcroft, 352 F. 3d 1222, 1228 (CA9

2003). If that is generally true of individuals who grow

and use marijuana for medical purposes under state law,

then even assuming Congress has “obvious” and “plain”

reasons why regulating intrastate cultivation and posses-

sion is necessary to regulating the interstate drug trade,

none of those reasons applies to medical marijuana pa-

tients like Monson and Raich.

——————

3 Because respondents do not challenge on its face the CSA’s ban on

marijuana, 21 U. S. C. §§841(a)(1), 844(a), our adjudication of their as-

applied challenge casts no doubt on this Court’s practice in United

States v. Lopez, 514 U. S. 549 (1995), and United States v. Morrison, 529

U. S. 598 (2000). In those cases, we held that Congress, in enacting the

statutes at issue, had exceeded its Article I powers.

6 GONZALES v. RAICH

THOMAS, J., dissenting

California’s Compassionate Use Act sets respondents’

conduct apart from other intrastate producers and users of

marijuana. The Act channels marijuana use to “seriously

ill Californians,” Cal. Health & Safety Code Ann.

§11362.5(b)(1)(A) (West Supp. 2005), and prohibits “the

diversion of marijuana for nonmedical purposes,”

§11362.5(b)(2).4 California strictly controls the cultivation

and possession of marijuana for medical purposes. To be

eligible for its program, California requires that a patient

have an illness that cannabis can relieve, such as cancer,

AIDS, or arthritis, §11362.5(b)(1)(A), and that he obtain a

physician’s recommendation or approval, §11362.5(d).

Qualified patients must provide personal and medical

information to obtain medical identification cards, and

there is a statewide registry of cardholders. §§11362.715–

.76. Moreover, the Medical Board of California has issued

guidelines for physicians’ cannabis recommendations, and

it sanctions physicians who do not comply with the guide-

lines. See, e.g., People v. Spark, 121 Cal. App. 4th 259,

263, 16 Cal. Rptr. 3d 840, 843 (2004).

This class of intrastate users is therefore distinguish-

able from others. We normally presume that States en-

force their own laws, Riley v. National Federation of Blind

of N. C., Inc., 487 U. S. 781, 795 (1988), and there is no

reason to depart from that presumption here: Nothing

suggests that California’s controls are ineffective. The scant

evidence that exists suggests that few people—the vast

majority of whom are aged 40 or older—register to use

medical marijuana. General Accounting Office, Marijuana:

Early Experiences with Four States’ Laws That Allow Use

for Medical Purposes 22–23 (Rep. No. 03–189, Nov. 2002),

http://www.gao.gov/new.items/d01389.pdf (all Internet

——————

4 Other

States likewise prohibit diversion of marijuana for nonmedi-

cal purposes. See, e.g., Colo. Const., Art. XVIII, §14(2)(d); Nev. Rev.

Stat. §§453A.300(1)(e)–(f) (2003); Ore. Rev. Stat. §§475.316(1)(c)–(d)

(2003).

Cite as: 545 U. S. ____ (2005) 7

THOMAS, J., dissenting

materials as visited on June 3, 2005, and available in

Clerk of Court’s case file). In part because of the low

incidence of medical marijuana use, many law enforce-

ment officials report that the introduction of medical

marijuana laws has not affected their law enforcement

efforts. Id., at 32.

These controls belie the Government’s assertion that

placing medical marijuana outside the CSA’s reach “would

prevent effective enforcement of the interstate ban on

drug trafficking.” Brief for Petitioners 33. Enforcement of

the CSA can continue as it did prior to the Compassionate

Use Act. Only now, a qualified patient could avoid arrest

or prosecution by presenting his identification card to law

enforcement officers. In the event that a qualified patient

is arrested for possession or his cannabis is seized, he

could seek to prove as an affirmative defense that, in

conformity with state law, he possessed or cultivated small

quantities of marijuana intrastate solely for personal

medical use. People v. Mower, 28 Cal. 4th 457, 469–470,

49 P. 3d 1067, 1073–1075 (2002); People v. Trippet, 56 Cal.

App. 4th 1532, 1549 (1997). Moreover, under the CSA,

certain drugs that present a high risk of abuse and addic-

tion but that nevertheless have an accepted medical use—

drugs like morphine and amphetamines—are available by

prescription. 21 U. S. C. §§812(b)(2)(A)–(B); 21 CFR

§1308.12 (2004). No one argues that permitting use of

these drugs under medical supervision has undermined

the CSA’s restrictions.

But even assuming that States’ controls allow some

seepage of medical marijuana into the illicit drug market,

there is a multibillion-dollar interstate market for mari-

juana. Executive Office of the President, Office of Nat.

Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004),

http://www.whitehousedrugpolicy.gov/publications/factsht/

marijuana/index.html. It is difficult to see how this vast

market could be affected by diverted medical cannabis, let

alone in a way that makes regulating intrastate medical

8 GONZALES v. RAICH

THOMAS, J., dissenting

marijuana obviously essential to controlling the interstate

drug market.

To be sure, Congress declared that state policy would

disrupt federal law enforcement. It believed the across-

the-board ban essential to policing interstate drug traffick-

ing. 21 U. S. C. §801(6). But as JUSTICE O’CONNOR points

out, Congress presented no evidence in support of its

conclusions, which are not so much findings of fact as

assertions of power. Ante, at 13–14 (dissenting opinion).

Congress cannot define the scope of its own power merely

by declaring the necessity of its enactments.

In sum, neither in enacting the CSA nor in defending its

application to respondents has the Government offered

any obvious reason why banning medical marijuana use is

necessary to stem the tide of interstate drug trafficking.

Congress’ goal of curtailing the interstate drug trade

would not plainly be thwarted if it could not apply the

CSA to patients like Monson and Raich. That is, unless

Congress’ aim is really to exercise police power of the sort

reserved to the States in order to eliminate even the intra-

state possession and use of marijuana.

2

Even assuming the CSA’s ban on locally cultivated and

consumed marijuana is “necessary,” that does not mean it

is also “proper.” The means selected by Congress to regu-

late interstate commerce cannot be “prohibited” by, or

inconsistent with the “letter and spirit” of, the Constitution.

McCulloch, 4 Wheat., at 421.

In Lopez, I argued that allowing Congress to regulate

intrastate, noncommercial activity under the Commerce

Clause would confer on Congress a general “police power”

over the Nation. 514 U. S., at 584, 600 (concurring opin-

ion). This is no less the case if Congress ties its power to

the Necessary and Proper Clause rather than the Com-

merce Clause. When agents from the Drug Enforcement

Cite as: 545 U. S. ____ (2005) 9

THOMAS, J., dissenting

Administration raided Monson’s home, they seized six

cannabis plants. If the Federal Government can regulate

growing a half-dozen cannabis plants for personal con-

sumption (not because it is interstate commerce, but

because it is inextricably bound up with interstate com-

merce), then Congress’ Article I powers—as expanded by

the Necessary and Proper Clause—have no meaningful

limits. Whether Congress aims at the possession of drugs,

guns, or any number of other items, it may continue to

“appropria[te] state police powers under the guise of regu-

lating commerce.” United States v. Morrison, 529 U. S. 598,

627 (2000) (THOMAS, J., concurring).

Even if Congress may regulate purely intrastate activity

when essential to exercising some enumerated power, see

Dewitt, 9 Wall., at 44; but see Barnett, The Original Mean-

ing of the Necessary and Proper Clause, 6 U. Pa. J. Const.

L. 183, 186 (2003) (detailing statements by Founders that

the Necessary and Proper Clause was not intended to

expand the scope of Congress’ enumerated powers), Con-

gress may not use its incidental authority to subvert basic

principles of federalism and dual sovereignty. Printz v.

United States, 521 U. S. 898, 923–924 (1997); Alden v.

Maine, 527 U. S. 706, 732–733 (1999); Garcia v. San Anto-

nio Metropolitan Transit Authority, 469 U. S. 528, 585

(1985) (O’CONNOR, J., dissenting); The Federalist No. 33, pp.

204–205 (J. Cooke ed. 1961) (A. Hamilton) (hereinafter The

Federalist).

Here, Congress has encroached on States’ traditional

police powers to define the criminal law and to protect the

health, safety, and welfare of their citizens.5 Brecht v.

——————

5 In fact, the Anti-Federalists objected that the Necessary and Proper

Clause would allow Congress, inter alia, to “constitute new Crimes, . . .

and extend [its] Power as far as [it] shall think proper; so that the State

Legislatures have no Security for the Powers now presumed to remain

to them; or the People for their Rights.” Mason, Objections to the

Constitution Formed by the Convention (1787), in 2 The Complete Anti-

10 GONZALES v. RAICH

THOMAS, J., dissenting

Abrahamson, 507 U. S. 619, 635 (1993); Hillsborough

County v. Automated Medical Laboratories, Inc., 471 U. S.

707, 719 (1985). Further, the Government’s rationale—that

it may regulate the production or possession of any commod-

ity for which there is an interstate market—threatens to

remove the remaining vestiges of States’ traditional police

powers. See Brief for Petitioners 21–22; cf. Ehrlich, The

Increasing Federalization of Crime, 32 Ariz. St. L. J. 825,

826, 841 (2000) (describing both the relative recency of a

large percentage of federal crimes and the lack of a relation-

ship between some of these crimes and interstate com-

merce). This would convert the Necessary and Proper

Clause into precisely what Chief Justice Marshall did not

envision, a “pretext . . . for the accomplishment of objects

not intrusted to the government.” McCulloch, supra, at

423.

II

The majority advances three reasons why the CSA is a

legitimate exercise of Congress’ authority under the Com-

merce Clause: First, respondents’ conduct, taken in the

aggregate, may substantially affect interstate commerce,

ante, at 19; second, regulation of respondents’ conduct is

essential to regulating the interstate marijuana market,

ante, at 21–22; and, third, regulation of respondents’

——————

Federalist 11, 12–13 (H. Storing ed. 1981) (emphasis added). Hamilton

responded that these objections were gross “misrepresentation[s].” The

Federalist No. 33, at 204. He termed the Clause “perfectly harmless,”

for it merely confirmed Congress’ implied authority to enact laws in

exercising its enumerated powers. Id., at 205; see also Lopez, 514 U. S.,

at 597, n. 6 (THOMAS, J., concurring) (discussing Congress’ limited ability

to establish nationwide criminal prohibitions); Cohens v. Virginia, 6

Wheat. 264, 426–428 (1821) (finding it “clear that [C]ongress cannot

punish felonies generally,” except in areas over which it possesses plenary

power). According to Hamilton, the Clause was needed only “to guard

against cavilling refinements” by those seeking to cripple federal power.

The Federalist No. 33, at 205; id., No. 44, at 303–304 (J. Madison).

Cite as: 545 U. S. ____ (2005) 11

THOMAS, J., dissenting

conduct is incidental to regulating the interstate mari-

juana market, ante, at 19–20. JUSTICE O’CONNOR ex-

plains why the majority’s reasons cannot be reconciled

with our recent Commerce Clause jurisprudence. The

majority’s justifications, however, suffer from even more

fundamental flaws.

A

The majority holds that Congress may regulate intra-

state cultivation and possession of medical marijuana

under the Commerce Clause, because such conduct argua-

bly has a substantial effect on interstate commerce. The

majority’s decision is further proof that the “substantial

effects” test is a “rootless and malleable standard” at odds

with the constitutional design. Morrison, supra, at 627

(THOMAS, J., concurring).

The majority’s treatment of the substantial effects test

is rootless, because it is not tethered to either the Com-

merce Clause or the Necessary and Proper Clause. Under

the Commerce Clause, Congress may regulate interstate

commerce, not activities that substantially affect inter-

state commerce—any more than Congress may regulate

activities that do not fall within, but that affect, the sub-

jects of its other Article I powers. Lopez, supra, at 589

(THOMAS, J., concurring). Whatever additional latitude

the Necessary and Proper Clause affords, supra, at 9–10,

the question is whether Congress’ legislation is essential

to the regulation of interstate commerce itself—not

whether the legislation extends only to economic activities

that substantially affect interstate commerce. Supra, at 4;

ante, at 5 (SCALIA, J., concurring in judgment).

The majority’s treatment of the substantial effects test

is malleable, because the majority expands the relevant

conduct. By defining the class at a high level of generality

(as the intrastate manufacture and possession of mari-

juana), the majority overlooks that individuals authorized

12 GONZALES v. RAICH

THOMAS, J., dissenting

by state law to manufacture and possess medical mari-

juana exert no demonstrable effect on the interstate drug

market. Supra, at 7–8. The majority ignores that

whether a particular activity substantially affects inter-

state commerce—and thus comes within Congress’ reach

on the majority’s approach—can turn on a number of

objective factors, like state action or features of the regu-

lated activity itself. Ante, at 6–7 (O’CONNOR, J., dissent-

ing). For instance, here, if California and other States are

effectively regulating medical marijuana users, then these

users have little effect on the interstate drug trade.6

The substantial effects test is easily manipulated for

another reason. This Court has never held that Congress

can regulate noneconomic activity that substantially

affects interstate commerce. Morrison, 529 U. S., at 613

(“[T]hus far in our Nation’s history our cases have upheld

Commerce Clause regulation of intrastate activity only

where that activity is economic in nature” (emphasis

added)); Lopez, supra, at 560. To evade even that modest

——————

6 Remarkably, the majority goes so far as to declare this question

irrelevant. It asserts that the CSA is constitutional even if California’s

current controls are effective, because state action can neither expand

nor contract Congress’ powers. Ante, at 27, n. 38. The majority’s

assertion is misleading. Regardless of state action, Congress has the

power to regulate intrastate economic activities that substantially

affect interstate commerce (on the majority’s view) or activities that are

necessary and proper to effectuating its commerce power (on my view).

But on either approach, whether an intrastate activity falls within the

scope of Congress’ powers turns on factors that the majority is unwill-

ing to confront. The majority apparently believes that even if States

prevented any medical marijuana from entering the illicit drug market,

and thus even if there were no need for the CSA to govern medical

marijuana users, we should uphold the CSA under the Commerce

Clause and the Necessary and Proper Clause. Finally, to invoke the

Supremacy Clause, as the majority does, ibid., is to beg the question.

The CSA displaces California’s Compassionate Use Act if the CSA is

constitutional as applied to respondents’ conduct, but that is the very

question at issue.

Cite as: 545 U. S. ____ (2005) 13

THOMAS, J., dissenting

restriction on federal power, the majority defines economic

activity in the broadest possible terms as the “ ‘the produc-

tion, distribution, and consumption of commodities.’ ”7

Ante, at 23 (quoting Webster’s Third New International

Dictionary 720 (1966) (hereinafter Webster’s 3d). This

carves out a vast swath of activities that are subject to

federal regulation. See ante, at 8–9 (O’CONNOR, J., dis-

senting). If the majority is to be taken seriously, the

Federal Government may now regulate quilting bees,

clothes drives, and potluck suppers throughout the 50

States. This makes a mockery of Madison’s assurance to

the people of New York that the “powers delegated” to the

Federal Government are “few and defined,” while those of

the States are “numerous and indefinite.” The Federalist

No. 45, at 313 (J. Madison).

Moreover, even a Court interested more in the modern

than the original understanding of the Constitution ought

to resolve cases based on the meaning of words that are

actually in the document. Congress is authorized to regu-

late “Commerce,” and respondents’ conduct does not qual-

ify under any definition of that term.8 The majority’s

opinion only illustrates the steady drift away from the text

of the Commerce Clause. There is an inexorable expan-

——————

7 Other dictionaries do not define the term “economic” as broadly as

th

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