Amicus Curiae Brief — Gonzales v. Raich

pe Couwt us

+? j 1)

2 OCT 1 3 2004

aaa

No. 03-1454

In the

Supreme Court of the United States

+

JOHN D. ASHCROFT, ATTORNEY GENERAL, et a/.,

Petitioners,

V.

ANGEL MCCLARY RAICH, et al.,

Respondents.

¢

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

¢

BRIEF OF THE STATES OF ALABAMA,

LOUISIANA, AND MISSISSIPPI

AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

+

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

Counsel! of Record

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, Alabama 36130

(334) 242-7401

October 13, 2004

(Additiona! counsel! for amici curiae are listed inside the front cover )

ena ncn oe Sa A DDD EIA SDSS SE ETNIES A TS ICES

CHARLES C. FOTI, JR

ATTORNEY GENERAL

STATE OF LOUISIANA

Department of Justice

P.O. Box 94095

Baton Rouge, LA 70804-9095

iM HOOD

ATTORNEY GENERAL

STATE OF MISSISSIPPI

PO. Box 220

lackson MIS 39205

QUESTION PRESENTED

Whether the Controlled Substances Act, 21 U.S.C.

§801 et seq., exceeds Congress’ power under the

Commerce Clause as applied to the intrastat2 possession

and manufacture of marijuana for purported personal

“medicinal” use or to the distribution of marijuana

without charge for such use. See Pet. at i.

i

TABLE OF CONTENTS

EE ee EG EE vcncccensccscncrentecssecsevsnsspeusesuscnnsnnsionn i

py PF Bh Bi | ee ill

Te Ce CI cittenistcniscscesiciticcaticsnantnicnintmmmscnanent 1

ALABAMA’S DRUG-CONTROL REGIME........................ 3

A. Alabama's Criminal Statutes ....00..............ecceeeeeeeeees 3

B. Alabama’s Law-Enforcement Efforts ...................... 5

SUTREREARS Gi ATI IIIEG 0 cccscccccsccnccsnssconsentvesrnenstesesaveens 7

TE sciieaictniesninicencesiniianinansdennssimsiuialianiaaipiaiiinaeiamanniie 9

I. A Straightforward Application Of Lopez And

Morrison Demonstrates That The CSA May

Not Be Applied To Purely Local Activity. .................. 11

Il. Wickard v. Filburn Does Not Justify The CSA's

Application To Purely Local Activity. ...................:000+4 17

A. Wickard’s Aggregation Principle Does Not

Apply Where, As Here, The Activity Subject

To Federal Regulation Is Not “Economic.” ........... 17

B. Even If Wickard Were Applicable, It Would

Not Justify Application Of The CSA To

Respondents’ Purely Local Activities. .................. 18

C. To The Extent That Wickard Can Be Read

To Justify Federal Regulation Of

Respondents’ Local Activities, It Should Be

III. s.incscesccibstslasienisenmtnnindaneiemnmidinbutaitetelinaneimints 24

III. The Government’s “Frustration Of Purpose”

Argument Does Not Justify The CSA's

Application To Purely Local Activity. ..................000008 25

CAI sccevecesinissnstessssisiacsinihihiddahinlianbiannainiasaiinaininennianiah 30

TABLE OF AUTHORITIES

Cases

Alden v. Maine, 527 U.S. 706 (1999) ................-csccccssceseecees 2

Apprendi v. New Jersey, 530 U.S. 466 (2000) .................. 27

Blakely v. Washington, 124 S. Ct. 2531 (2004)................ 27

Brecht v. Abrahamson, 507 U.S. 619 (1993) .................... 10

C&A Carbone, Inc. v. Clarkstowne, 511 U.S. 383

IRE ENT EAR Ree ore seid ANOS nee ESE 25

Carey v. Population Servs. Int’, 431 U.S. 678

RCRA R ERR Nn aa MERE elie SAT Un aan ERIE RON HO EA HRN 27

City of Philadelphia v. New Jersey, 437 U.S. 617

Sarit siaiiainassiisnntittecnuintipeihdcaapece cetcadeadabaickitiaethlaaacascuh iaenbatamsiia al 25

City of Richmond v. J.A. Croson Co., 488 U.S. 469

SUTIN seiciiiepeatiresleabian ing aa ait aa 27

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) .......... 10

Craig v. Boren, 429 U.S. 190 (1976) ...............cccccceeseceeeeees 27

Engle v. Isaac, 456 U.S. 107 (1982) ...................ccccescccceoeee 10

Gray v. State, 600 So. 2d 1076 (Ala. Crim. App.

pia sccechossintdnnsdasdiiansntaididaeneeienauntnadabasiaidiansdaniammaaad 4

Gregory v. Ashcroft, 501 U.S. 452 (1991)................ eee 27

Hodel v. Virginia Surface Mining & Reclamation

Ba, Be, Te Se Be Ci rcnsttecetnctantnsccnintinaesen 14

Jones v. United States, 529 U.S. 848 (2000)............... 10, 11

Kauffman v. State, 620 So. 2d 90 (Ala. Crim. App.

SUIT ickcasiacnedihanhinnisinineeaneatesnaaieiaiaitaiiaataliiaidaiatatdasaiaaiinalinabidianiieads 4,5

Lawrence v. Texas, 539 U.S. 558 (2003) .................cccceeeeeees 2

Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803)....9, 15

National Ass’n of Home Builders v. Babbitt, 130

ee Ie es I, Se ecisctonencovinsinsitsnatintashinisaisiduianiumis 9

1V

New State Ice Co. v. Liebmann, 285 U.S. 262

(RR REISIRIS TREE ENS ABB ERE RNAs A Oe aed eed ROO NT 3

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

( MERAREREREDE Sits a Wee ee hee ken Aari e Roamer aee RRS eae 25

Printz v. United States, 521 U.S. 898 (1997).................... 30

Riley v. National Fed’n of the Blind of N.C., Inc.,

er ee ee cs ussseeennadinmedinaiis 29

Ring v. Arizona, 536 U.S. 584 (2002)..................ccceeseeeeeees 27

Sabri v. United States, 124 S. Ct. 1941 (2004)................. 30

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531

ts Sen 2 ei animaniennammeninenianansnnedl 23

South Dakota v. Dole, 483 U.S. 203 (1987) ................2..++ 30

Tashjian v. Republican Party of Conn., 479 U.S.

SN a a eeeeaeaaiaananain 27

United States v. Bass, 404 U.S. 336 (1971)................ 10, 14

United States v. Enmons, 410 U.S. 396 AEREESEREES 10

United States v. Five Gambling Devices, 346 U.S.

te TIIIITITscincceiniecereeticdindanidenidendshiahiiietinieesiniemmenmigaeneabenianamnbiies 14

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

United States v. Morrison, 529 U.S. 598 (2000)....... passim

United States v. Oakland Cannabis Buyers’

Cooperative, 532 U.S. 483 (2001) ................c:cceeeeeeeeeeeees 9

United States v. Stewart, 348 F.3d 1132 (9th Cir.

ES TRS EERO re eae aC nT Danan) NOU TR SN 13

Village of Oconomowoc Lake v. Dayton Hudson

Corp., 24 F.3d O63 (ithe Cit. 1904) ....cccccccccccoscoscccccccses 19

Washington v. Glucksburg, 521 U.S. 702 (1997)................ 2

Wickard v. Filburn, 317 U.S. 111 (1942)........000000.... passim

Vv

Statutes

Controlled Substances Act, 21 U.S.C. §801 et seq. .. passim

Be Cas eh ccaosicinesiaciasasidionesidunenedensininbenandevdanoniains passim

Be ee I ccccocicssnicicsiinitnhinnimmepiadenniginsamieneniensunia 16

Be Ss ME icsisnnsiienensiininnadieeniicbninnbaiecantanndacabniaamanse 16

Oe a I srccsoncissinscessinicaeriesicienentenieapinnoasseiaeiaeiinniidimceanionns 25

Be ie BUI cis snetessicicccnaitnidaichinnbbenetaiensantdiancitentitons 26

le ND csceiicctccinisnsinninncceniennnnnisinecnianenniniannes 14

Bee ie SO ccscsccrnssnciicsencemmeansantnntasdiniininininennente 14

Fi I ciscccninntensnnsninmnscnnsiinintinimntdbusmatniniin 1,4

Bi ID crcnccevicteitinnaninniihaidsatioienstinenntiapisaneunin 1,4

Be SD Sicrcccteceinctesensesnnsiosnisescnennaunin 3

a FD cctcteentoniictenitentei listenin 4

a rE ccsescececstiecsenactermnvnstiinnsnnumithinainannins 1,4

a I ccctsicicsctnntenntnninnninttnncionmeninenanaiaiite 1,4

SD peniinsiecscrenmsnitensstsancnisainnsidiamnsiiiniiads 4

BE, Se ececcenicsnincinisistininuintiunintasucisidniaiauneinianissing 4

i SN insccciicinstiniiaviinncncsivetiniinctitiaimtteniia Secunia 4

Controlled Substances Therapeutic Research Act,

Acts 1979, No. 79-472 (codified at Ala. Code

POI IID ucscccicrensiensectiinbastibdiiimahicaiietimnnenioneiemuidesii 5

| | cane 5

FR 5 FS} REITER Es eeranED EET ES one 10

Bion. Conte Rants, BEBE BI acccncccccccccccncessccnceccesccasccsscess 10

Constitutional Provisions

Be, See, Be, Fs er ccecisieiaviscenteininssnvicciaianuiiiinnenuini 30

v1

Other Authorities

The Federalist (C. Rossiter ed., 1961)..................c2200000+ 9,15

Jim Chen, Filburn’s Legacy, 52 Emory L.J. 1719

SII cei enaioenc eect as aunaeiaeeiatinad mbceaiandaasaaniiabddiiamass 20, 23

Deborah Jones Merritt, Commerce!, 94 Mich. L.

nt Cen isiaseseneateniasieeiiaisemaained 19, 21

Ethan A. Nadelmann, An End to Marijuana

Prohibition, National Review (July 12, 2004).............. 1

Robert L. Stern, The Commerce Clause and the

National Economy, 1933-1946: Part Il, 59

II, ti: SR a csissiaincial 22

Landmark Briefs and Arguments of the Supreme

Court of the United States: Constitutional Law

(P. Kurland & G. Casper eds., 1975) .................... 21, 22

Office of National Drug Control Policy, Drug Policy

Information Clearinghouse: State of Alabama

SEE TETEITUIS encsiotiscsisibiiicieiinccssmaeisnadeidiiniaiiiblinaciiassenuibediiaaitieatiis 30

2003 Crime in Alabama, Alabama Criminal

Justice Information Center, www.acjic.state.

SSE er eae AI Nes AIM ET Re 6

Statistical Analysis Center, Alabama Criminal

Justice Information Center, www.acjic.state.

aaa lata eae all 6

Alabama Department of Public Safety, www.dps.

i ccinscasicsinsdsacniiseselensuinintapshbeiiniieapniiamgianniaainineiatead 5

Alabama Department of Public Safety, AST

Violation Tally Ticket Summary.............2........cceceeeeeeees 6

Baldwin County Sheriffs Department, Narcotics

Division, www.sheriff.co.baldwin.al.us. ..............:::+++ 5

Barbour/Bullock County Drug Task Force, www.

ER Fee a a eee ce eal nas rN eR ae ae ae Me 5

vil

City of Birmingham — Police Department, Vice and

Narcotics Unit, www.information.birmingham.

I iecincisicccscinsnsnnncascasesicicetaiiasiusins 5, 30

Huntsville Police Department — Priorities in

Focus: Drugs, www.ci.huntsville.al.us/police/

ELIE Re Er eiecr er se mee ee te A vO a OO 5

Madison-Morgan County Strategic Counterdrug

Team, www.drugteam. net................cccccsccssssssssrsceeeserees 5

West Alabama Narcotics Task Force, www.ci.

CepcnBoen al. wel pPimle. Btw ......2ccccececoccscceccesesccccesssoscsnees 5

INTEREST OF AMICI

The Court should make no mistake: The States of

Alabama, Louisiana, and Mississippi do not appear here

to champion (or even to defend) the public policies

underlying California’s so-called “compassionate use” law.

As a matter of drug-control policy, the amici States are

basically with the Federal Government on this one. We

agree wholeheartedly that drug abuse is one of the

Nation’s “most important public health problem[s]”! and

is “undercutting traditional values and threatening the

very existence of stable families, communities, and

government institutions,”? and we are fully committed to

partnering with the Federal Government in a vigorous

prosecution of the war on drugs.

This, accordingly, is not a brief of “[d]rug legalization

advocates”? or “pro-marijuana activists." Far from it.

With respect to the issue at hand, the amici States’

Legislatures have enacted, their Attorneys General have

enforced, and their courts have routinely sustained

statutes broadly criminalizing marijuana possession and,

depending on the circumstances, punishing violators with

up to 10 years in prison for a first offense. See, e.g., Ala.

Code §§13A-5-6, 13A-5-7, 13A-12-213, 13A-12-214.

Indeed, the lead amicus here, Alabama, has apparently

earned something of a reputation for-its zeal in

prosecuting and punishing drug crimes. See E.

Nadelmann, An End to Marijuana Prohibition, National

Review, p.28 (July 12, 2004) (“Alabama currently locks up

people convicted three times of marijuana possession for

15 years to life.”). It is not a reputation of which Alabama

is embarrassed or ashamed. On the contrary, Alabama’s

Attorney General has every intention of continuing to

prosecute drug crimes to the fullest extent of the law.

! Br. of U.S. Representatives as Amici Curiae at 3 (“Reps’ Br.”).

2 Br. of the Drug Free America Found., et al., as Amici Curiae at 1

(“Drug Free Br.”).

3 Drug Free Br. 9.

* Reps’ Br. 15.

2

Drug-control policy aside, the amici States also

disagree with respondents’ contention that there is

embedded in the Constitution (whether in the Due

Process Clause, the Ninth Amendment, or elsewhere) a

“fundamental right” — however defined — to smoke or

otherwise ingest marijuana. Alabama, for instance, has

consistently urged this Court not to divine new,

unenumerated rights from the Constitution’s open-

textured provisions and, instead, to leave difficult social

policy choices to elected state legislatures. See, e.g., Br. of

the States of Alabama, et al., Roper v. Simmons, No. 03-

633; Br. for the States of Alabama, et al., as Amici Curiae,

Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102); Br.

for Amici Curiae States of California, Alabama, et al.,

Washington v. Glucksburg, 521 U.S. 702 (1997) (No. 96-

110). The amici States’ position here is no different.

From the amici States’ perspective, however, this is

not a case about drug-control policy or fundamental

rights. This is a case about “our federalism,” which

“requires that Congress treat the States in a manner

consistent with their status as residuary sovereigns and

joint participants in the governance of the Nation.” Alden

vu. Maine, 527 U.S. 706, 748 (1999). The Government

apparently does not view the federalism issue in this case

as a serious one. See U.S. Br. 13 (“It is clear that

Congress has the authority ....” (emphasis added)). We

respectfully disagree. And, just as individual States have

intervened to challenge laudatory (and _ popular)

congressional statutes on federalism grounds before, see,

e.g., Br. for the State of Alabama as Amicus Curiae,

United States v. Morrison, 529 U.S. 598 (2000) (Nos. 99-5,

99-29), the amici States perceive a need to do so here.

While the amici States may not see eye to eye with

some of their neighbors concerning the wisdom of

decriminalizing marijuana possession and use in certain

instances,® they support their neighbors’ prerogative in

5 The State of Louisiana, which has enacted a statute permitting the

medicinal use of marijuana in very limited circumstances, joins in the

Argument section of this brief.

3

our federalist system to serve as “laboratories for

experimentation.” United States v. Lopez, 514 U.S. 549,

581 (1995) (Kennedy, J., concurring). As Justice Brandeis

famously remarked, “[iJt is one of the happy incidents of

the federal system that a single courageous State may, if

its citizens choose, serve as a laboratory; and try novel

social and economic experiments without risk to the rest

of the country.” New State Ice Co. v. Liebmann, 285 U.S.

262, 311 (1932) (Brandeis, J., dissenting). Whether

California and the other compassionate-use States are

“courageous” — or instead profoundly misguided — is not

the point. The point is that, as a sovereign member of the

federal union, California is entitled to make for itself the

tough policy choices that affect its citizens. By stepping

in here, under the guise of regulating interstate

commerce, to stymie California’s “experiment{],” Congress

crossed the constitutional line.

ALABAMA’S DRUG-CONTROL REGIME

All of the amici States have adopted — and vigorously

enforce — broad prohibitions on marijuana possession and

use. See generally Appendix, infra. The States’ precise

prohibitions and enforcement strategies, of course, are not

identical in every jot and tittle. The following description

of Alabama’s drug-control regime, however, is illustrative

of the way in which the amici States have tackled the

marijuana-possession problem.

A. Alabama’s Criminal Statutes

In a portion of the criminal code devoted to “Offenses

Against Public Health and Morals,” Alabama law

comprehensively prohibits the cultivation, possession,

sale, distribution, and trafficking of marijuana. See Ala.

Code §13A-12-210 et seq. Under Alabama law, as under

the U.S. Code, marijuana is a “Schedule I” drug, meaning

it has a “high potential for abuse” and has “no accepted

medical use in treatment in the United States or lacks

accepted safety for use in treatment under medical

4

supervision,” id. §§20-2-22, 20-2-23 (referenced in id.

§13A-12-216).

As relevant here, a person is guilty under Alabama

law of “Unlawful possession of marihuana in the second

degree,” a Class A misdemeanor punishable by up to a

year in prison, if he possesses marijuana for personal use.

Id. §§13A-12-214, 13A-5-7. A person commits the crime of

“Unlawful possession of marihuana in the first degree,” a

Class C felony punishable by up to 10 years in prison, if

he (i) possesses marijuana for other than personal use or

(li) possesses marijuana for personal use after having

been previously convicted of personal-use possession. Id.

§§13A-12-213, 13A-5-6. Additionally, a person is guilty of

the “Unlawful distribution of controlled substances,” a

Class B felony punishable by up to 20 years in prison, if

he “sells, furnishes, gives away, manufactures, delivers,

or distributes [any] controlled substance,” including

marijuana. Jd. §§13A-12-211, 13A-5-6. At the Attorney

General's urging, Alabama courts have broadly construed

these statutes — for instance, to allow for conviction on a

theory of “constructive possession.” See, e.g., Gray uv.

State, 600 So. 2d 1076, 1078 (Ala. Crim. App. 1992).

Respondents’ conduct — cultivating and possessing

marijuana for personal consumption — would thus plainly

be criminal in the State of Alabama. Notably for present

purposes, Alabama courts have — again, at the Attorney

General's urging — expressly refused to recognize

“medical necessity’ as a valid defense in a prosecution for

the unlawful possession of marijuana.” Kauffman v.

State, 620 So. 2d 90, 93 (Ala. Crim. App. 1992). The

defendant in Kauffman alleged that he suffered from

“uncontrollable muscle spasms and associated crippling

symptoms of an affliction that [was] progressing from

paraplegia to quadriplegia” and that “marijuana [was] the

only medication that wifould] relieve his pain and

suffering.” Jd. at 91. Despite the sympathy that the

defendant's condition unquestionably engendered, the

court, after canvassing the relevant statutes and common-

law precedents, held that “the Alabama Legislature ha[d]

5

precluded the appellant’s use of the defense of medical

necessity ....” Id. at 92.6

B. Alabama’s Law-Enforcement Efforts

In the war on drugs, Alabama is not standing pat. To

the contrary, both state and local law-enforcement

agencies in Alabama have devoted substantial resources

to the investigation and prosecution of narcotics offenses.

At the state level, Alabama’s Department of Public Safety

includes two units — the Alabama Bureau of Investigation

and the Highway Patrol Division — that target drug

crime. See Alabama Department of Public Safety,

www.dps.state.al.us. At the local level, many police and

sheriffs’ departments in Alabama operate dedicated

narcotics units. See, e.g., City of Birmingham — Police

Department, Vice and Narcotics Unit, www.information.

birmingham.com/police/vicenar.htm (“Birmingham PD

Report”); Huntsville Police Department — Priorities in

Focus: Drugs, www.ci.huntsville.al.us/police/drugs.htm;

Baldwin County Sheriffs Department, Narcotics Division,

www.sheriff.co.baldwin.al.us. Other local jurisdictions

have banded together to form joint task forces to combat

drug crime more efficiently. See, e.g., Madison-Morgan

County Strategic Counterdrug Team, www.drugteam.net;

Barbour/Bullock County Drug Task Force, www.bcdtf.

com; West Alabama Narcotics Task Force, www.ci.

tuscaloosa.al.us/pdinfo.htm.

6 Interestingly enough, Alabama has dealt with the issue of medical

marijuana before. In 1979, the Alabama Legislature enacted the

Controlled Substances Therapeutic Research Act. See Acts 1979, No.

79-472, p.870 (codified at Ala. Code §20-2-110 et seq.). That Act

established within the state Board of Medical Examiners a research

program, pursuant to which an “authorized practitioner” could

“certif[y]” a chemotherapy or glaucoma patient for strictly supervised

cannabis-based treatment. Ala. Code §20-2-114. The research

program, however, never really got off the ground and, although it

technically remains on the books, is by all accounts defunct today. We

are informed by the Board of Medical Examiners that there are no

patients presently participating in the program and, indeed, that the

program’s cannabis-prescription apparatus is non-existent and that no

practitioner is currently certified by the Board to dispense cannabis.

6

Not surprisingly, these vigorous enforcement cfforts

have paid dividends — particularly (as relevant here) on

the marijuana-possession front. During 2003 alone, state

and local law-enforcement officers arrested 16,524

persons for drug-related offenses. That is more than the

number of persons arrested for DUI (14,173) and larceny

(15,935) -— and, indeed, is more than the number of

persons arrested for homicide, rape, assault, burglary,

robbery, arson, and car theft combined. Notably for

present purposes, “marijuana possession resulted in the

greatest number of arrests for drug violations”; there

were 9469 marijuana-possession arrests in 2003, a figure

that represents 57% of all drug-related arrests. See 2003

Crime in Alabama, Alabama Criminal Justice

Information Center, www.acjic.state.al.us/sac.’ Statistics

for each of the previous eight years are to the same effect:

Year Drug Arrests Marijuana. Poss. Arrests

2002 15,493 9105 (59%)

2001 14,295 8953 (63%)

2000 14,890 9658 (65%)

1999 16,492 10,566 (64%)

1998 17,516 10,573 (60%)

1997 16.345 10,008 (61%)

1996 15,580 8981 (58%)

1995 13,201 7723 (59%)

See Statistical Analysis Center, Alabama Criminal

Justice Information Center, www.acjic.state.al.us/sac.

What these data show is that Alabama’s focus on drug

crime generally, and on marijuana possession specifically,

is no passing fancy. To the contrary, Alabama’s campaign

has been, and will continue to be, sustained and vigilant.

7 In addition, between July 2003 and July 2004, Alabama Highway

Patrol officers made 482 marijuana-possession arrests. See Alabama

Department of Public Safety, AST Violation Tally Ticket Summary.

7

SUMMARY OF ARGUMENT

The question presented here is not whether vigorous

enforcement of the Nation’s drug laws is good criminal

policy. It most assuredly is. The question, rather, is

whether the Constitution permits the Federal

Government, under the guise of regulating interstate

commerce, to criminalize the purely local possession of

marijuana for personal medicinal use. It does not.

1. A straightforward application of the principles

outlined in Lopez and Morrison shows that Congress

crossed the constitutional line when it criminalized the

purely local possession of marijuana for personal use.

First, like gun possession, marijuana possession is not

inherently an “economic activi.;.” Second, the Controlled

Substances Act provision at issue lacks a jurisdictional

hook; it purports to regulate local possession per se,

without respect to any connection to interstate commerce.

Third, although Congress made several generic findings

in the text of the CSA concerning the interstate effects of

local drug activity (e.g., that drugs possessed locally

“commonly flow through interstate commerce”), those

findings are not entitled to deference here both (i) because

they are unsupported by any hard data in the legislative

record and (ii) because they do not address marijuana

that, like respondents’, is produced intrastate, possessed

intrastate, and consumed intrastate.

2. Wickard v. Filburn is not the panacea the

Government thinks, for three reasons. First, Lopez and

Morrison make clear that Wickard’s aggregation principle

does not apply where, as here, the activity subject to

federal regulation is not “economic.” Second, and in any

event, it is just not true that Wickard is on all fours here.

Contrary to popular misconception, Wickard was not

about a farmer growing wheat in his back yard to bake a

few loaves of bread. Farmer Filburn owned a large and

multifaceted farming operation; during the year in

question, he harvested nearly 28,000 pounds of wheat.

Moreover, careful attention to the economic and

agricultural facts underlying Wickard shows that the

8

“home consumption” to which the Court in that case

referred was, at least principally, Filburn’s use of large

quantities of wheat to feed livestock and poultry, which

he then sold on the open market. Had Wickard really

been just about Filburn’s bread-baking, it js inconceivable

to us that it would have come out the same way. Because

the Government here seeks to apply the CSA’s criminal

prohibitions to respondents’ simple possession of a few

marijuana plants, its theory would carry the Court well

beyond Wickard and into uncharted Commerce-Clause

waters. Finally, to the extent that Wickard can be read to

justify direct federal regulation of respondents’ purely

local possession, it should be overruled.

3. The Government’s “frustration of purpose”

argument — that without authority over local activity

Congress cannot efficiently regulate interstate drug

trafficking — likewise fails for several reasons. First, it is

not (and does not purport to be) a_ constitutional

argument; the fact that direct control over local activity

may facilitate congressional objectives has little, if

anything, to do with the anterior question whether

Congress has constitutional authority to exert direct

control. Second, the Government has offered no evidence

— statistical, anecdotal, or otherwise — to support its

assertion that direct control over local activity is

“essential” to federal drug policy. Finally — and most

importantly from the States’ perspective -— _ the

Government's various arguments about the imperative of

effective drug-control policy completely ignore the ongoing

efforts of state and local law enforcement. The

Government's assertion of federal power here seems

rather plainly to rest on the assumption that absent

federal] control, anarchy would reign at the local level.

That assumption is (to say the least) unwarranted.

9

ARGUMENT

This case presents the question the Court reserved in

United States v. Oakland Cannabis Buyers’ Cooperative —

namely, whether, as applied to what all here agree is the

purely local cultivation and possession of marijuana for

personal, noncommercial use, the Controlled Substances

Act (“CSA”) “exceeds Congress’ power under the

Commerce Clause.” 532 U.S. 483, 495 n.7 (2001). The

question is a narrow one: whatever the outcome here, the

amici States agree that Congress enjoys wide latitude in

regulating the “quintessentially commercial” aspects of

the drug trade (e.g., manufacture and distribution for

consideration). U.S. Br. 18. The issue here is simply

whether Congress’ effort to extend its power under the

“interstate” Commerce Clause to conduct that is neither

interstate nor commerce is a bridge too far. Cf. National

Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1061

(D.C. Cir. 1997) (Sentelle, J., dissenting) (comparing

extension of interstate-commerce power to conduct that is

neither interstate nor commerce to “the old chestnut: If

we had some ham, we could fix some ham and eggs, if we

had some eggs”).

The resolution of the question presented turns on the

“first principles” of our federal system. United States v.

Lopez, 514 U.S. 549, 552 (1995). First, whereas the

powers that are reserved to the States under the

Constitution are “numerous and indefinite,” those

delegated to the Federal Government are “few and

defined.” The Federalist No. 45, at 292-93 (C. Rossiter

ed., 1961). Second, it is so that the limitations on federal

power “may not be mistaken or forgotten [that] the

constitution is written.” Marbury v. Madison, 5 U.S. (1

Cranch.) 137, 176 (1803). And third, “courts of justice”

must be “bulwarks of a limited Constitution against

legislative encroachments” and invalidate enactments

that go too far. The Federalist No. 78, at 469. However

sound as a matter of policy, the laws at issue — which,

among other things, make “simple drug possession” (U.S.

Br. 11) a federal criminal offense — go too far.

10

This case arises against the backdrop of the States’

unquestioned “police power” to make and enforce laws

protecting the health, safety, welfare, and morals of their

citizens. Indeed, of the “numerous” powers reserved to

the States under the Constitution, one of the most

fundamental is the power to define and punish criminal

conduct. This Court has recently reiterated that “[u]nder

our federal system, the “States possess primary authority

for defining and enforcing the criminal law,”” Lopez, 514

U.S. at 561 n.3 (quoting Brecht v. Abrahamson, 507 U.S.

619, 635 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128

(1982))), and, further, that “criminal law enforcement” is

an area “where States historically have been sovereign,”

id. at 564; see also id. at 580 (Kennedy, J., concurring)

(criminal law an “area of traditional state concern”). It

has long been recognized, by contrast, that Congress has

no power to “punish felonies generally,” Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821), and does not

enjoy anything approaching a general police power over

citizens’ health and safety, see United States v. Morrison,

529 U.S. 598, 618-19 & n.8 (2000).

This case illustrates precisely how an overreaching

federal criminal statute — again, however well-intentioned

— can undermine state prerogatives. Many States, the

amici States among them, already outlaw marijuana

possession in essentially all circumstances. See supra at

3-5 (Alabama); see also La. Rev. Stat. Ann. 40:966(C);

Miss. Code Ann. §41-29-139(c). This Court has recognized

that where, as here, Congress “criminalizes conduct

already denounced as criminal by the States, it effects a

“change in the sensitive relation between federal and

state criminal jurisdiction.”” Lopez, 514 U.S. at 561 n.3

(quoting United States v. Enmons, 410 U.S. 396, 411-12

(1973) (quoting United States v. Bass, 404 U.S. 336, 349

(1971))); see also Jones v. United States, 522 U.S. 848,

859-60 (2000) (Stevens, J., concurring) (noting federal

arson statute's “overlap with state authority”). Following

Justice Kennedy's logic in Lopez, where “over 40 States

already ha[d] criminal laws outlawing the possession of

11

firearms on or near school grounds,” if a State determines

(as many have) “that harsh criminal sanctions are

necessary and wise to deter” marijuana possession, “the

reserved powers of the States are sufficient to enact those

measures.” 514 U.S. at 581 (Kennedy, J., concurring).

Just as the CSA unnecessarily duplicates the criminal

regimes of many States, it “effectively displaces” the

“policy choice[s]” made by others. Jones, 529 U.S. at 859

(Stevens, J., concurring). In striking down the Gun Free

School Zones Act in Lopez, this Court emphasized the

Government’s concession that the Act “displace[d] state

policy choices in ... that its prohibitions app][ied] even in

States that ha[d] chosen not to outlaw the conduct in

question.” 514 U.S. at 561 n.3 (quoting Br. for United

States 29 n.18). So, too, the CSA countermands state

policy choices and substitutes a uniform federal rule.

Several States — California among them — have chosen to

enact medical-use exceptions to their general marijuana-

possession prohibitions. Again, the point is not whether a

medical-use exception is sound criminal policy (the amici

States are convinced it is not). Rather, the point is that,

in our federalist system, a State has the right to set its

own criminal policy free of congressional interference.

I. A Straightforward Application Of Lopez And

Morrison Demonstrates That The CSA May Not

Be Applied To Purely Local Activity.

In its recent Commerce-Clause decisions, this Court

has enumerated guideposts for determining whether an

activity sufficiently “substantially affects” - interstate

commerce to permit congressional regulation. See

Morrison, 529 U.S. at 610-13. Those guideposts — which,

notably, the Government’s brief does not analyze in any

systematic way — point decisively toward a finding of

unconstitutionality here.

1. Economic Activity, This Court has emphasized

that in every instance in which it has permitted federal

regulation of local activity on the ground that it

substantially affects interstate commerce, “the activity in

12

question has been some sort of economic endeavor.” Id. at

611. As examples, the Court in Lopez pointed to decisions

allowing federal regulation of, for instance, coal mining,

credit transactions, restaurants, and hotels. 514 US. at

560. By contrast, the statute the Court faced in Lopez,

which criminalized the possession of guns in school zones,

“ha[d] nothing to do with ‘commerce’ or any -sort of

economic enterprise, however broadly one might define

those terms.” Jd. at 561. “The possession of a gun in a

local school zone,” the Court emphasized, “is in no sense

an economic activity” that might affect interstate

commerce. Id. at 567. Even Wickard v. Filburn, 317 U.S.

111 (1942) — of which more later — “involved economic

activity in a way that the possession of a gun in a school

zone does not.” 514 U.S. at 560. Morrison is to the same

effect. In striking down a portion of the Violence Against

Women Act, this Court there emphasized that “[g]ender-

motivated crimes of violence are not, in any sense of the

phrase, economic activity.” 529 U.S. at 613.

What was true in Lopez and Morrison is equally true

here. The activity that Congress seeks to regulate — the

purely local cultivation, possession, and personal use of

marijuana — is “beyond the realm of commerce in the

ordinary and usual sense of that term.” Lopez, 514 U.S.

at 583 (Kennedy, J., concurring); see also id. at 599

(Thomas, J., concurring) (“wholly separated from

business’). To be sure, there is a vibrant interstate

market in illegal drugs; it would be naive to pretend

otherwise. See, e.g., U.S. Br. 19 (“The interstate market

for marijuana that Congress regulates under the CSA is

well-established and substantial.”). But that was the case

in Lopez, as well; surely the interstate gun market is no

less robust than the interstate drug market. And just as

the fircarms statute at issue in Lopez was aimed not-at

the commercial aspect of the gun “market,” but instead at

protecting the welfare of schoolchildren, the CSA is not

intended (at least primarily) to strike at the commercial

aspect of the drug trade, but instead to minimize the

harmful effects that accompany drug use. Cf. United

13

States v. Stewart, 348 F.3d 1132, 1137 (9th Cir. 2003)

(Kozinski, J.) (federal machine-gun ban intended to keep

guns out of the hands of criminals, not to regulate the

economics of the “machinegun business’).

The Government contends that respondents’ conduct

here is “economic activity that is subject to congressional

control because it occurs in, and substantially affects, the

marijuana market generally.” U.S. Br. 12. But that

argument blurs together two distinct requirements of

valid Commerce-Clause legislation. To be the proper

subject of federal regulation, a local activity must both (i)

be “economic” in its own right and (ii) “substantially

affect[]” interstate commerce. See Lopez, 514 U.S. at 560

(“Where economic activity substantially affects interstate

commerce, legislation regulating that activity will be

sustained.”). By arguing that respondents’ conduct is

economic because it affects interstate commerce, the

Government elides the economic-activity limitation that

this Court’s cases plainly establish.

The Government's argument, in any event, cannot

overcome the basic point here that, as in both Lopez and

Morrison, “[{njeither the actors nor their conduct” — nor,

for that matter, the purpose underlying the challenged

statute — “has a commercial character ....”. Lopez, 514

U.S. at 581. Respondents here are not trafficking in

marijuana; nor do they pay for the marijuana they use.

Rather, respondents cultivate and possess small amounts

— infinitesimal, in the grand scheme — of marijuana

purely for personal use. See Pet. App. 6a (six cannabis

plants). Respondents’ “simple drug possession” (U.S. Br.

11) may well be condemnable; what it is not is economic

or commercial in any meaningful sense. See Lopez, 514

U.S. at 580 (Kennedy, J., concurring) (“simple possession

of a gun”); id. at 585 (Thomas, J., concurring) (“mere gun

possession”).

Under this Court’s precedent, the fact that Congress

here has purported to regulate “noneconomic, criminal”

conduct is a “central,” if not altogether sufficient, reason

14

for invalidating the CSA’s application to respondents’

purely local activities. Morrison, 529 U.S. at 610.

2. Jurisdictional Element. A second guidepost is

easily discerned, and likewise points toward invalidity.

The CSA makes it a federal crime “to manufacture,

distribute, [or] dispense,” or even “to possess,” a controlled

substance except as expressly authorized by the CSA

itself. 21 U.S.C. §841(a), 844(a). Like the statutes struck

down in Lopez and Morrison — and unlike the statute

upheld in United States v. Bass, 404 U.S. 336 (1971) — the

CSA contains “no express jurisdictional element which

might limit its reach to a discrete set” of offenses “that

additionally have an explicit connection to or effect on

interstate commerce.” Lopez, 514 U.S. at 562. Rather, it

regulates, for instance, local cultivation and possession

per se, without respect to any connection to commerce.

Cf. Bass, 404 U.S. at 339 n.4 (recognizing constitutional

question whether Congress may criminalize “mere

possession”); L’nited States v. Five Gambling Devices, 346

U.S. 441, 448 (1953) (plurality opinion) (same).

3. Congressional Findings. There is no disputing that

Congress made certain findings in the body of the CSA

concerning the interstate effects of intrastate drug

activity. See U.S. Br. 4-5 (quoting 21 U.S.C. §801). For

three reasons, however, Congress’ findings provide an

insufficient basis to sustain the CSA’s application here.

First, as the State of Alabama urged and as this Court

held in Morrison, “the existence of congressional findings

is hot sufficient, by itself, to sustain the constitutionality

of Commerce Clause legislation.” 529 U.S. at 614.

““Simply because Congress may conclude that a

particular activity substantially affects interstate

commerce does not necessarily make it so.”” Jd. (quoting

Lopez, 514 U.S. at 557 n.2 (quoting Hodel v. Virginia

Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264,

311 (1981) (Rehnquist, J., concurring in judgment))). In

our system of checks and balances, Congress is not “the

constitutional judge[] of [its] own powers” and cannot

render constructions of laws “conclusive upon the other

15

departments.” The Federalist No. 78, at 467. It remains

this Court’s responsibility “to say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Second, the Court should be, if anything, more

reluctant here than in Morrison to defer to congressional

findings. In that case, Congress’ findings concerning the

interstate effects of gender-based violence were by

Alabama’s own admission “extensive”’; by the Court’s

estimation “numerous,” 529 U.S. at 614; and in Justice

Souter’s view supported by a “mountain of data,” id. at

628 (Souter, J., dissenting). Specifically, as Justice

Souter emphasized —

e passage of the Violence Against Women Act “was

preceded by four years of hearings, which included

testimony from physicians and law professors;

from survivors of rape and domestic violence; and

from representatives of state law enforcement and

private business’;

e the record there “include[d] reports on gender bias

from task forces in 21 States”; and

e the Court there had “the benefit of specific factual

findings in the eight separate Reports issued by

Congress and its committees over the long course

leading to enactment.”

Id. at 628-31. Even so — and in our view rightly so — the

Court in Morrison refused to defer to Congress’ findings.

The same reluctance should follow a fortiori here, where

there seems to be nothing approaching a “mountain of

data” justifying direct federal control of local activity.

While there is apparently an extensive legislative record

on the scope of the drug problem generally (U.S. Br. 18-

20), that is not the issue here. The Government has

pointed to nothing in the legislative history of the CSA

that goes beyond rote recitation of the findings contained

in §801 to provide a reasoned evidentiary basis for direct

§ See Br. for the State of Alabama at 15.

16

federal control of local conduct. See, e.g., U.S. Br. 2, 3, 17,

18, 19, 23, 29, 34, 39-40.

Finally, and in any event, the findings on which the

Government relies are insufficient to justify application of

the CSA in this case. Some simply do not apply at all.

For instance, while it may be true that “after

manufacture, many controlled substances are transported

in interstate commerce,” that “controlled substances

distributed locally usually have been transported in

interstate commerce immediately before their

distribution,” and that “controlled substances possessed

commonly flow through interstate commerce immediately

prior to such possession,” 21 U.S.C. §801(3)(A)-(C)

(emphasis added), none of those things, apparently, is

true of the marijuana at issue here. By contrast, the

record in this case shows that respondents’ marijuana is

produced intrastate, possessed intrastate, and consumed

intrastate. See Br. in Opp. 6-7 (“Angel Raich’s cannabis is

grown using only soil, water, nutrients, growing

equipment, supplies, and lumber originating from or

manufactured within California. Diane Monson’s

‘cultivation of marijuana is similarly local in nature.”

(quoting Pet. App. 47a)).

Other findings seem rather plainly at odds with the

core theory of the Government’s case. For instance,

Congress found that local possession of controlled

substances would have a tendency to “swell[] the

interstate traffic” in those substances. 21 U.S.C. §801(4).

And, in fairness, at times the Government contends that

local use and possession will “increase{] demand” for

marijuana. U.S. Br. 24. But fundamentally, it seems, the

Government relies on Wickard v. Filburn, 317 U.S. at

127, for the proposition that by cultivating and consuming

one’s own product (wheat there, marijuana here) an

individual “forestall[s] resort to” — and thus reduces

demand in — the interstate market. See U.S. Br. 38-39.

In sum, the Lopez and Morrison factors counsel

strongly against the Government’s position here.

rte ee ee

17

II. Wickard v. Filburn Does Not Justify The CSA’s

Application To Purely Local Activity.

Rather than seeking to defend the application of the

CSA under the factors enunciated in Lopez and Morrison,

the Government pins its hopes principally on Wickard v.

Filburn, 317 U.S. 111, which this Court has called

“perhaps the most far reaching example of Commerce

Clause authority over intrastate activity.” Lopez, 514

U.S. at 560. The Government leads off its argument with

a citation to Wickard (U.S. Br. 10); describes Wickard as a

case about the production of wheat “for personal use”

(U.S. Br. 16); and, accordingly, contends that the

constitutionality of the CSA’s application to purely

personal possession and use “follows from” Wickard (U.S.

Br. 21).

Specifically, the Government seeks the benefit of

Wickara’s “aggregation” principle. In Wickard, this Court

sustained federal legislation regulating wheat, including

‘wheat “consumed on the farm,” on the ground that by

“meet[ing] his own needs” a wheat farmer could “forestall

resort to” — and thus reduce demand in — the interstate

wheat market. 317 U.S. at 127. In so doing, the Court

noted that the fact that a single farmer'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.” Jd. at 127-28 (emphasis added).

The Government’s reliance on Wickard is misplaced

for three reasons.

A. Wickard’s Aggregation Principle Does Not

Apply Where, As Here, The Activity Subject

To Federal Regulation Is Not “Economic.”

In both Lopez and Morrison, this Court expressly

refused to employ Wickard’s aggregation principle to

validate congressional efforts to regulate intrastate,

noneconomic activity. See Morrison, 529 U.S. at 611, 613;

18

Lopez, 514 U.S. at 560-61. And indeed, the Court in

Morrison emphasized that “in every case where we have

sustained federal regulation under the aggregation

principle of Wickard” — including, by definition, Wickard

itself — “the regulated activity was of an apparent

commercial character.” 529 U.S. at 611 n.4. Accordingly,

in concluding its Commerce-Clause analysis in Morrison,

this Court expressly “reject[ed] the argument that

Congress may regulate noneconomic, violent criminal

conduct based on that conduct’s aggregate effect on

interstate commerce.” Jd. at 617.

That statement controls this case, and precludes the

Government's reliance on Wickard's rule of aggregation.

(There is certainly no principled reason why the rule

allowing aggregation should be any more available with

respect to noneconomic, nonviolent crime than with

respect to noneconomic, violent crime. It was not the

violent nature, but rather the noneconomic nature, of

gender-based violence that scotched the aggregation

principle in Morrison.) Because wholly intrastate drug

possession is no more “economic” or “commercial” than

wholly intrastate gun possession, the constitutionality of

the CSA’s application here must rise or fall here on the

existence of a _ substantial connection between

respondents’ own conduct and interstate commerce.

Because the record demonstrates (and we do not take the

Government to dispute) that there is none, the Act may

not validly be applied to respondents’ activities.

B. Even If Wickard Were Applicable, It Would

Not Justify Application Of The CSA To

Respondents’ Purely Local Activities.

Even if the aggregation principle were not

categorically out of bounds here, Wickard — heretofore the

high-water mark of Congress’ Commerce-Clause authority

— would not justify federal regulation of respondents’

purely intrastate, personal possession and use of

marijuana. Despite superficial similarities, this case is

not a Wickard redux. The Government's description of

19

Wickard as a case about a lone farmer’s “home-grown

production of wheat” (U.S. Br. 37) for his own “personal

use” (U.S. Br. 16) is, with respect, an oversimplification.

It is just not true that it is “impossible to distinguish the

relevant conduct surrounding 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. U.S. Br. 8 (quoting Pet.

App. 26a). Understanding why not — and, correlatively,

why the Government’s argument would carry the Court

well beyond Wickard and into uncharted Commerce-

Clause waters — requires a fuller understanding of the

economic and agricultural facts underlying Wickard than

the Government’s brief provides.

As noted, the aggregation principle, as announced in

Wickard and as reiterated in subsequent cases, permits a

reviewing court to consider the effect on interstate

commerce of an individual litigant’s conduct “taken

together with that of many others similarly situated.”

Wickard, 317 U.S. at 127-28. Accordingly, the first order

of business in understanding aggregation is discerning

what, exactly, Roscoe Filburn was doing on his farm such

that his conduct, when “taken together with that of many

others similarly situated” to him, would substantially

affect interstate commerce.

He was not just baking bread. There is a persistent

myth — to which the Government’s brief seems to

subscribe — that Wickard stands for the proposition that

“wheat a farmer bakes into bread and eats at home is part

of ‘interstate commerce” subject to congressional

regulation. Village of Oconomowoc Lake v. Dayton

Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994). The myth

is just that: a myth — an urban (or rural, as the case may

be) legend. As one scholar has noted, “Farmer Filburn

was not an organic home baker who had decided to raise

wheat for a few loaves of bread”; rather, he “raised wheat

commercially and regularly sold a portion” of his crop on

the open market. Deborah Jones Merritt, Commerce!, 94

Mich. L. Rev. 674, 748-49 (1995). Indeed, the math shows

20

that “[t]o consume the 239 excess bushels at issue in the

July 1941 wheat harvest, the Filburns would have had to

consume nearly forty-four one-pound loaves of bread each

day for the following year.” Jim Chen, Filburn’s Legacy,

52 Emory L.J. 1719, 1759 (2003).

Far from organic home baker, Roscoe Filburn owned

and operated a large and multifaceted farming operation.

As to scope, this Court’s opinion reflects that Filburn’s

annual “wheat acreage allotment” under the Agricultural

Adjustment Act (“AAA”) was 11.1 acres, at a normal yield

of 20.1 bushels of wheat per acre, for a total of more than ©

223 bushels. 317 U.S. at 114. Filburn planted an

additional 11.9 acres and harvested an additional 239

bushels, bringing his total harvest to 462 bushels (or

27,720 pounds) of wheat. Jd. Notably, the marketing

quota at issue in Wickard applied only to large farms; it

expressly exempted “any farm on which the normal

production of the acreage planted to wheat was less than

200 bushels.” Jd. at 130 n.30. Plainly, then, Filburn was

no small player. Had he been the organic baker of legend,

his case never would have arisen; Congress had not even

attempted to extend its regulatory reach to activities so

local in character.

With respect to the nature of Mr. Filburn’s operation,

this Court’s opinion in Wickard recites that Filburn

disposed of his wheat crop in four different ways: (i) he

sold some at market; (ii) he fed part to “poultry and

livestock on the farm, some which [was then] sold”; (iii) he

used some to make flour for bread for his family; and (iv)

he kept some for seeding the following year’s crop. Id. at

114. The question in Wickard was whether the

Commerce Clause authorized the Federal Government to

regulate the portion of Mr. Filburn’s wheat yield used “for

consumption on the farm.” /d. at 118.

But, again, to be clear, the case was not principally

about the wheat Mr. Filburn used to feed his family; were

that the only use that Filburn had made of his wheat, his

farm would have fallen outside the AAA’s ambit entirely.

Thus, the term “home consumption,” as used in Wickard

21

(and as repeated by the Government here, see U.S. Br.

15), “does not refer primarily to bread and pies baked by

wheat growers.” Merritt, supra, at 749. “Instead, most

farm consumption of wheat [was] devoted to feeding

livestock who [were] then sold commercially and to

reseeding fields to produce more wheat for commercial

sale.” Id. The statistics that the Government reported to

this Court in Wickard tell the story. For the years 1931-

1936, average U.S. wheat production was 680,603,000

bushels. The average distribution of the wheat produced

in those years was as follows:

Sold on the market 484,673,000

bushels (71.2%)

Fed to livestock on the farm 107,608,000

bushels (15.8%)

Used as seed on the farm 72,567,000

bushels (10.7%)

Used in the household 15,755,000

bushels (2.3%)

See Br. for Appellants at 12, in 39 Landmark Briefs and

Arguments of the Supreme Court of the United States:

Constitutional Law 677, 692 (P. Kurland & G. Casper

eds., 1975). According to another estimate based on

government calculations, “[i]n Filburn’s time, farmers fed,

twenty times more wheat to livestock than they ground

into flour for home use.” Chen, supra, at 1759 (citing U.S.

Dep’t of Agric., Field and Seed Crops by States, 1949-54,

at 8.(1957) (Stat. Bull. No. 208)). In any event, the basic

point, as summarized by the Government in its brief in

Wickard, w«s that “a substantial quantity of wheat [was]

consumed on the farm as feed for livestock, as seed, and,

to a slight extent, as food.” Br. for Appellants at 41, in

Landmark Briefs, supra, at 721 (emphasis added).

In addition to sheer “volume,” Congress and the

Wickard Court were concerned about “variability” in the

wheat market. 317 U.S. at 128. Specifically, the Court

emphasized that the “effect of consumption of homegrown

wheat on interstate commerce is due to the fact that it

99

constitutes the most variable factor in the disappearance

of the wheat crop.” Id. at 127. But while overall

“[clonsumption on the farm where grown appeared] to

vary in an amount greater than 20 per cent of average

production,” the Court noted that the “total amount of

wheat consumed as food varies but relatively little, and

use as seed is relatively constant.” Jd. Implicit in the

Court’s summary is the fact that the variability in home-

consumed wheat resulted primarily from a single source:

tue on-farm use of v heat as feed for poultry and livestock.

The Government's brief to the Court made the point

explicit: While the “human consumption” of wheat was

“subject to less variation than that of most commodities”

and the amount of wheat “used for seed [was] also fairly

constant,” the amount “used for livestock feed fluctuate[d]

widely with changes in livestock prices and in the relation

between the prices of alternative feeds and the price of

wheat.” Br. for Appellant at 15, in Landmark Briefs,

supra, at 695. Statistics confirm the Government's point.

During the years preceding the AAA amendment at issue

in Wickard, on-farm uses of wheat had varied as follows:

Fed to livestock on the farm 28-174 million

bushels (521%

variation)

Used as seed on the farm 73-97 million

bushels (33%

variation)

Used in the household 10-16 million

bushels (6%

variation)

Robert L. Stern, The Commerce Clause and the National

Economy, 1933-1946: Part II, 59 Harv. L. Rev. 883, 902

(1946); accord Br. for Appellants at 12-13, in Landmark

Briefs, supra, at 692-93.

Accordingly, when, following the Government’s lead,

the Wickard Court emphasized that it could “hardly be

denied” that a factor of such “volume and variability” as

“home-consumed wheat” would have a_ substantial

23

influence on interstate market conditions, 317 U.S. at

129, the home consumption with which it was principally

concerned was the use of wheat as feed for poultry and

livestock — which, of course, farmers would then turn

around and sell at market. As a result of wheat farmers’

decisions “to keep the crop for on-farm use as animal

feed,” a sizeable “portion of the wheat crop was [being]

converted into meat, poultry, milk, or eggs.” Chen, supra,

at 1758. This practice of “[t]ransforming a field crop into

grocery staples require[d] nothing more mysterious than

the feeding of farm animals,” whose products could then

be sold — free of regulations on wheat — on the open

market. Jd. at 1760. “By converting excess wheat into

milk, meat, poultry, and eggs, the Filburn farm engaged

in a_ time-honored practice of regulated firms:

manipulating investments between a regulated line of

business (wheat) and nonregulated lines (meat, dairy,

poultry, and eggs).” Jd. Congress’ fundamental purpose

in extending the AAA beyond wheat actually sold at

market to reach all wheat produced on farms was to

prevent farmers from defeating wheat-marketing quotas

“by redirecting wheat to the feeding bin.” Jd. at 1758.

Why is all of this important? For two reasons. First,

because, as noted above, Wickard’s aggregation principle

requires a precise understanding of an _ individual

litigant’s conduct — specifically, for the purpose of

determining the class of persons who are “similarly

situated” to him, 317 U.S. at 127-28, and whose conduct,

therefore, may properly be aggregated in assessing

interstate effects. See Solid Waste Agency of Northern

Cook County v. United States Army Corps of Engineers,

531 U.S. 159, 173 (2001) (court must “evaluate the precise

object or activity that, in the aggregate, substantially

affects interstate commerce”). And second, because

Wickard is “the most far reaching example of Commerce

Clause authority over intrastate activity,” Lopez, 514 U.S.

at 560, and because a comparison of that case with this

shows that the Government is now asking this Court to

take a quantum leap beyond Wickard.

24

Roscoe Filburn was not, as legend would have it, a

simple farmer raising wheat to feed his family; rather,

like other wheat farmers of his day, Filburn sold the great

majority of his wheat commercially, either directly (on the

open wheat market) or indirectly (for instance, in the

form of wheat-fed livestock and poultry). Without

conceding the initial correctness of Wickard, it is easy to

see that, when “taken together,” all of the Nation’s Roscoe

Filburns — i.e., farmers who, like Filburn himself, used

their acreage primarily for market purposes — likely

generated a substantial effect on interstate commerce.

Respondents here (and, importantly for aggregation

purposes, those “similarly situated” to them) are in a very

different boat: “They do not sell, barter, or exchange

cannabis, or use it to produce any other product that they

sell, barter, or exchange.” Br. in Opp. 15. Put simply,

respondents are not market actors. Respondents’ simple

possession of marijuana for personal use is akin to Roscoe

Filburn’s use — considered in isolation — of wheat to bake

bread to feed his family. Had Wickard really been just

about Filburn’s bread-baking, it is inconceivable to us

that the case would have come out the same way.

C. To The Extent That Wickard Can Be Read To

Justify Federal Regulation Of Respondents’

Local Activities, It Should Be Overruled.

If Wickard is properly read (as we submit it is not) to

permit direct federal regulation of respondents’ purely

local, personal possession of marijuana — the equivalent of

Roscoe Filburn’s bread-baking, considered in isolation — it

should be overruled. If, as the Government suggests,

Wickard establishes that any activity “occurring within a

market is subject to Congress’s commerce power even

when the activity may itself not be commercial” (Pet. at

10), then it is unquestionably true that the aggregation

principle knows “no stopping point,” Lopez, 514 U.S. at

600 (Thomas, J., concurring), and should be abandoned as

a rule of constitutional law.

25

The Government’s rationale would sanction federal

regula*ion not only of “simple drug possession” — and gun

possession, but see Lopez — but of a whole host of other

local activities, as well. As just one example, consider

that this Court has recognized that there exists a

commercial “market” for garbage. See C&A Carbone, Inc.

uv. Clarkstowne, 511 U.S. 383, 391 (1994); City of

Philadelphia v. New Jersey, 437 U.S. 617, 621-23 (1978).

Accordingly, on the Government’s reading of Wickard,

Congress (or HHS, or HUD, or EPA) could commandeer

the regulation of local litter. That cannot be the law. See

Lopez, 514 U.S. at 585 (Thomas, J., concurring). The

Government's theory of Wickard would give to Congress

the very “plenary police power” that the Constitution

“withhold[s]” from it, id. at 566 (majority opinion), and

would thus “obliterate the distinction between what is

national and what is local” and tend to “create a

completely centralized government,” NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 37 (1937).

III. The Government’s “Frustration Of Purpose”

Argument Does Not Justify The CSA’s

Application To Purely Local Activity.

The Government devotes a substantial portion of its

defense of the CSA’s application here to the argument

that its ability to police the interstate aspects of the drug

trade will be undercut if it cannot also regulate purely

local possession and personal use. See U.S. Br. 20-35.

For one thing, the Government contends that Congress

ought to be able to get at the local possession and use

that, it says, “feeds” the larger illicit drug market. US.

Br. 27. To a similar end, the Government argues that

“given the fungible nature of drugs,” it is “not feasible to

distinguish” between drugs cultivated, possessed, and

used locally from those moving in interstate commerce

“in terms of controls.” U.S. Br. 29 (quoting 21 U.S.C.

§801(5)); see also id. at 30 (“difficulties of proof’). Thus,

the Government says (with emphasis), “Congress

concluded that ‘/fJederal control of the intrastate incidents

26

of the traffic in controlled substances is essential to the

effective control of the interstate incidents of such traffic.”

U.S. Br. 23 (quoting 21 U.S.C. §801(6)); accord id. at 11

(“Congress has concluded that regulation of all intrastate

drug activity ‘is essential to the effective control’ of

interstate drug trafficking.” (Government's emphasis)).

There are several problems with the Government’s

frustration-of-purpose argument. First, the Government's

argument assumes — wrongly, see supra at 17-18 — that

Wickard’s aggregation principle applies here. There is no

dispute that the respondents in this case cultivate,

possess, and consume the marijuana at issue entirely

within the State of California. Accordingly, there is no

problem in this case of distinguishing intra- from

interstate marijuana, nor is there any reason on the

record here to think that the marijuana in this case is

somehow “feed[ing]” the larger interstate drug market.

See, e.g., U.S. Br. 9 (quoting district court’s preliminary

injunction in this case as reaching only “intrastate, non-

commercial cultivation, possession, and use” of marijuana

“which is not used for distribution, sale, or exchange”).

Assuming that the enforcement concerns the Government

identifies exist, they exist on a macro level, not in this

case specifically. And because the aggregation principle

does not apply here (drug possession not being an

“economic” activity), the “feed[ing]” and “fungib[ility]”

premises underlying the CSA’s application to intrastate

activity melt away.

Second, the Government's frustration-of-purpose

argument — that without authority over local cultivation

and possession Congress cannot efficiently regulate

interstate trafficking — is -not (nor does it really even

purport to be) a constitutional argument. At bottom, the

Government's contention seems to be that a loss of control

over local activity would undercut the “effectiveness of the

comprehensive regulatory regime Congress established”

and “interfere with Congress's objectives” (U.S. Br. 12-13),

and that, accordingly, “the CSA comprehensively bans all

manufacture, distribution, and possession of any

27

scheduled drug” (U.S. Br. 17). But this is not a run-of-

the-mill statutory construction case in which invocations

of congressional purpose or arguments about effective

enforcement can carry the day. Rather, the question

presented here is whether the regime that “Congress

established” comports with the Constitution and whether

the CSA may validly control “all” aspects — including

purely local aspects -— of marijuana _ cultivation,

possession, and use.

On that score, this Court has emphasized in numerous

contexts before that the “prospect of additional

administrative inconvenience has not been thought to

justify invasion of fundamental constitutional rights.”

Carey v. Population Servs. Intl, 431 U.S. 678, 691 (1977);

accord, e.g., City of Richmond v. J.A. Croson Co., 488 U.S.

469, 508 (1989); Tashjian v. Republican Party of Conn.,

479 U.S. 208, 218 (1986); Craig v. Boren, 429 U.S. 190,

198 (1976). In the context of criminal law enforcement

specifically, there are, of course, all sorts of crime-fighting

techniques — general searches, coerced confessions, and

the like — that, despite their obvious effectiveness, are

simply off-limits. Indeed, one need look no further than

the line of cases beginning with Apprendi v. New Jersey,

530 U.S. 466 (2000), and proceeding through Ring v.

Arizona, 536 U.S. 584 (2002), and Blakely v. Washington,

124 S. Ct. 2531 (2004) — and perhaps culminating in

United States v. Booker, No. 04-104, and United States v.

Fanfan, No. 04-105 — to appreciate that not even the

threat of something much more serious. than

administrative inefficiency can suffice to justify

dispensing with constitutional protections. There is no

reason why arguments from convenience or feasibility,

deemed insufficient when dealing with individual rights,

ought to hold sway here given that our federalist

structure of government, like the Bill of Rights itself,

“was adopted by the Framers to ensure protection of our

fundamental liberties.” Lopez, 514 U.S. at 552 (quoting

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).

28

Third, although the Government has asserted that

“comprehensive regulation of ... local activity is essential

to effectuate control of the interstate drug market” (U.S.

Br. 24), and that the CSA’s objectives “cannot be

achieved” without control over intrastate conduct (Pet. at

14), it has offered no hard data to substantiate those

assertions. In support of its contention that it needs to be

able to reach purely local activity to effectuate the CSA’s

“central purposes” (U.S. Br. 17), the Government relies

principally on rote recitations of congressional findings

(U.S. Br. 11, 22-23, 29) and asserts that “[t]hose findings

fully support Congress’s conclusions” concerning the

necessity of regulating local activity (U.S. Br. 23-24). The

problem, respectfully, is that while the “findings” may

support the “conclusions,” the Government has offered

nothing in the way of evidence to support the findings.

While the Government offers some data in its brief (the

accuracy of which we do not doubt for a moment)

concerning the scope of the marijuana problem generally

(U.S. Br. 18-20), nowhere does it provide any evidence —

statistical, anecdotal, or otherwise — that federal drug

policy cannot survive without preemptive regulatory

authority over purely local activity. In place of analysis,

the Government merely asserts that the risk is “sbvious”

(U.S. Br. 25) and “comports with common sense” (U.S. Br.

29). We respectfully submit that where the Federal

Government is so clearly pushing the constitutional

envelope — here, a full step beyond Wickard, see supra at

18-24 — it must, at the very least, make a more sustained

showing than it has here.

Fourth — and the capper from the our perspective —

the Government’s arguments about the imperative of

effective drug-control policy completely ignore the ongoing

efforts of state and local law enforcement. For instance, in

connection with its contention that local use and

possession feed demand and thus swell the interstate

market, the Government says that “[i]f Congress lacked

the power to regulate” intrastate cultivation and

possession, “the market effects on the demand and supply

29

of marijuana would likely be enormous,” and, indeed, that

“(t]he risk that both the supply and demand could

dramatically increase were home-grown marijuana

beyond the reach of federal law is obvious.” U.S. Br. 25

(emphasis added). The Government later reiterates its

position that “the unregulated intrastate manufacturing,

possession, and distribution of a drug” would frustrate

efforts to stem interstate trafficking, and that “[w]ere

Congress to lack the power to regulate” local activity,

persons could function essentially as “unregulated and

unsupervised” drug manufacturers and pharmacies. U.S.

Br. 32, 33-34.

Where do States, counties, and municipalities fit into

the Government’s theory of this case? Regrettably, the

answer appears to be that they don’t. The Government’s

assertion of federal power over local activity seems rather

plainly to rest on the assumption that absent federal

regulation, anarchy would reign at the local level. The

Government’s assumption of local law enforcement’s

irrelevance is (to say the least) unwarranted. As

Alabama’s own record of enforcement makes clear, see

supra at 5-7, the States are ready, willing, and able to

police and prosecute local drug crimes. See also Riley v.

National Fed’n of the Blind of N.C., Inc., 487 U.S. 781,

795 (1988) (“[W]Je presume that [state] law enforcement

officers are ready and able to enforce” the law.). And the

Government has done nothing in its brief to demonstrate

(nor could it, we submit) that state and local enforcement

efforts are so woefully inadequate — or a cooperative

relationship with state and local governments so unduly

burdensome — that a federal takeover is justified.

x** *

None of this is to suggest, of course, that the States

don’t want and need the Federal Government’s help. The

amici States certainly do — subject to constitutional limits.

Fortunately, there are viable crime-fighting alternatives

short of a full-blown federal takeover of local policing.

The Federal Government, for instance, grants money to

30

state and local law-enforcement agencies — for which

those agencies are grateful, we can attest — aimed at

preventing and eradicating marijuana use. See, e.g.,

Office of National Drug Control Policy, Drug Policy

Information Clearinghouse: State of Alabama 2-4 (May

2004) ((ONDCP Report”) (cataloguing Alabama programs

receiving “[flederal [flunding”). It is the Federal

Government's prerogative, within limits, to attach

conditions to the use of those funds and to direct

expenditures toward what it perceives to be the most

effective drug-control and prevention strategies. See, e.g.,

Sabri v. United States, 124 S. Ct. 1941, 1947 (2004);

South Dakota v. Dole, 483 U.S. 203, 206 (1987).

Furthermore, so long as it does not cross the line into

unconstitutional “commandeering,” see Printz v. United

States, 521 U.S. 898 (1997), the Federal Government may

— and we submit should — partner with state and local law

enforcement to achieve the comprehensive regulation of

the drug trade that all agree is needed. See, e.g., ONDCP

Report, supra, at 7 (“cooperative program between DEA

and its state and local law enforcement counterparts’);

Birmingham PD Report, supra at 5 (“interagency

cooperation’ with federal authorities). What the Federal

Government may not do is displace the States from their

traditional role as the enforcers of local criminal law and

assume the States’ historic police power to provide for the

health, safety, welfare, and morals of their citizens.

CONCLUSION

This is an extraordinary case. The amici States find

themselves, essentially, in complete agreement with the

Federal Government as a matter of drug-control policy,

but in complete disagreement as a matter of

constitutional principle. Bound through their elected

officials to privilege the latter over the former, see, e.g.,

Ala. Const. Art. XVI, §279 (“[o]ath of office”), the amici

States respectfully submit that the judgment of the court

of appeals should be affirmed.

October 13, 2004

31

Respectfully submitted,

Troy King

Attorney General

Kevin C. Newsom

Solicitor General

Counsel of Record

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, AL 36130-0152

(334) 242-7401

(Additional counsel for amici

curiae are listed inside the front

cover.)

la

APPENDIX A

State Marijuana-Possession Prohibitions

State

Alabama

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

District of

Columbia

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

lowa

Kansas

Kentucky

Louisiana

Maine

Statute

Ala. Code §§ 13A-12-213, 13A-12-214

Alaska Stat. § 11.71.060(a) (held

unconstitutional by Noy v. State, 83

P.3d 545 (Alaska Ct. App. 2003))

Ariz. Rev. Stat. § 13-3405

Ark. Code Ann. § 5-64-401

Cal. Health & Safety Code § 11357

Colo. Rev. Stat. Ann. § 18-18-405

Conn. Gen. Stat. § 21a-279

Del. Code Ann. tit. 16, § 4754(a)

D.C. Code Ann. § 48-904.01

Fla. Stat. Ann. § 893.13

Ga. Code Ann. § 16-13-30

Haw. Rev. Stat. § 712-1249

Idaho Code § 37-2732

720 Ill. Comp. Stat. 550/4

Ind. Code § 35-48-4-11

Iowa Code Ann. § 124.401

Kan. Stat. Ann. § 65-4162(a)(3)

Ky. Rev. Stat. Ann. § 218A.500(2)

La. Rev. Stat. Ann. § 40:966(C)

Me. Rev. Stat. Ann. tit. 22 § 2383

State

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

2a

Statute

Md. Code Ann., Crim. Law § 5-601

Mass. Gen. Laws Ann. ch. 94c, § 34

Mich. Comp. Laws § 333.7403(2)(d)

Minn. Stat. Ann. § 152.025

Miss. Code Ann. § 41-29-139(c)

Mo. Ann. Stat. § 195.223

Mont. Code Ann. § 45-9-102(2)

Neb. Rev. Stat. § 28-416

Nev. Rev. Stat. 453.336

N.H. Rev. Stat. Ann. § 318-B:2

N.J. Stat. Ann. § 2c:35-10a(3)

N.M. Stat. Ann. § 30-31-23

New York Penal Law § 221.05

N.C. Gen. Stat. § 90-95(a)(3)

N.D. Cent. Code § 19-03.1-23(6)

Ohio Rev. Code Ann. § 2925.11

Okla. Stat. Ann. tit. 63 § 2-402

Or. Rev. Stat. § 475.992(4)

Pa. Stat. Ann. tit. 35 § 780-113

R.I. Gen. Laws § 21-28-4.01

S.C. Code Ann. § 44-53-370

S.D. Codified Laws § 22-42-6

Tenn. Code Ann. § 39-17-417

State

Texas

Utah

Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

3a

Statute

Tex. Health & Safety Code Ann.

§ 481.115

Utah Code Ann. § 58-37-8

Vt. Stat. Ann. tit. 18 § 4230(a)(1)

Va. Code Ann. § 182-250.1

Wash. Rev. Code Ann. § 69.50.4013

W. Va. Code § 60A-4-401

Wis. Stat. Ann. § 961.41(3g)(e)

Wyo. Stat. Ann. § 35-7-1031