Amicus Curiae Brief — Gonzales v. Raich

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No. 03-1454 1 3 204

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IN THE

Supreme Court of the Anited States

JOHN ASHCROFT, ATTORNEY GENERAL, E7 AL.

Petitioners.

V.

ANGEL MCCLARY RAICH, E7 AL.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE CATO INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

TIMOTHY LYNCH DOUGLAS W. KMIEC*

ROBERT A. LEVY Counsel of Record

MARK K. MOLLER Caruso Chair & Professor

THE CATO INSTITUTE of Constitutional Law

1000 Massachusetts Ave., N.W. PEPPERDINE UNIVERSITY

_ Washington, D.C. 20001 SCHOOL OF LAW

(202) 218-4600 Malibu, CA 90263 —

(310) 506-4255

Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

i

QUESTION PRESENTED

Whether the Controlled Substances Act, 21 U.S.C. § 801

et seq., exceeds Congress’ power under the Commerce

Clause as applied to intrastate possession of marijuana for

medicinal use, when that use is undertaken pursuant to

physician supervision in accord with California’s

Compassionate Use Act of 1996, Cal. Health & Safety Code

§ 11362.5 (West Supp. 2004).

TABLE OF CONTENTS

Page

PRE COE PUT RIR BSD occcecccscsesecsssccsccsescsccccccseroses iv

INTEREST OF AMICUS CURIAE 10.000.....cccccccceeeeeseeeeeees l

SUMMARY OF ARGUMENT ......0..........ccccceeceeseeeeeeee l

I. MODERN COMMERCE CLAUSE

ANALYSIS SUPPORTS RESPONDENTS......4

A. The Compassionate Use Act Is

Within The Province Of Traditional

State “Expertise” Over Health Care............ 4

B. The Compassionate Use Act Does

Not Interfere With The Federal

BRSTSSES ASSerteS TIETS ......0005.cccccsesccceccoceeee 7

C. The Object Of The California

Regulation Does Not Qualify As

ae ll

Il. THE COURT SHOULD TAKE THIS

OPPORTUNITY TO ANCHOR MODERN

COMMERCE CLAUSE ANALYSIS TO

THE ORIGINAL UNDERSTANDING OF

THE COMMERCE POWER.........0...cccccceeeeeee 15

A. Definitional Formulations Of The

Commerce Power, Unattached To

The Underlying Constitutional

Purpose Of The Power, Risk

Slighting State Authority........................ 15

B. John Marshall Opens The Door To A

Purpose-Based And Principled

Commerce Clause Analysis In

Si cciaticcadisntnnnecestosesoceosscese 17

ill

C. The Federal And State Sides Of The

Commerce Power Are Best

Understood In Relation To The

Original Purpose Of The Underlying

Virginia Resatetioe .........0csseccssccescocssessecess 19

D. Daniel Webster's Argument In

Gibbons Completes And Explains

Jéhn Marshall’s Analysis —

Revealing What Is “ational And

er ee I sieistnpovnspincintuiunincinntensiedinamns 23

E. The Federal Government’s

Argument Disregards The Purpose

Of The Commerce Power And

Defies Original Understanding ................. 25

ERE BEING cncssetcnssitstrcnenincesssnimnaneetscieanavaneeeatbenenees 29

iV

TABLE OF AUTHORITIES

CASES Page(s)

Barsky v. Bd. of Regents, 347 U.S. 442

SN ccicisicvslesieaiesicnhaiitiakcbiaidiabclsanedDiliactindspskaabiithiniguiibledasceds 5

Bd. of Trs. of the Univ. of Alabama v.

BL __ | rare neDEEIEOT 8

Brecht v. Abrahamson, 507 U.S. 619 (1993) ............0008 28

City of Boerne v. Flores, 521 U.S. 507

ISTEP aiasinescecsiesitchvaenenitenaiiceepdiaidadinhiaiacunbeateiaiiniaianinveitadtiadatd 8

Engle v. Isaac, 456 U.S. 107 (1982) ........::cccccccceseeeeeeees 28

Garcia v. San Antonio Metro. Transit Auth.,

ee: IED Snichcesscesucittinhinintsinnndiinipnsionsdiptetbids ye

Gibbons v. Ogden, 22 U.S. (9 Wheat) | “

aii cieiticineniinttietaeidaidnidilieaanaiananiliaiia nad aasda a tiisiadasl passim

Great Atlantic & Pacific Tea Co. v. Cottrell,

Pe ee OT iaitncnitncniisiiittinninsssinsinonntesiesaid 4,5

Gregory v. Ashcroft, 501 U.S. 452 (1991) 0.0... cece 28

Heart of Atlanta Motel, Inc. v. United States,

Ee Fe iecirieertitaininlinnniniiineen 28

Hillsborough County v. Automated Medical

ewe Rs eee 4

INS v. Chadha, 462 U.S. 919 (1983) ...ccccccceccceseeeeeeeeee 16

Katzenbach v. McClung, 379 U.S. 294

Saar eiis hssiabsescenidiaibdeenasieeidindpiiigiidaibduianemapinsiiibianiauninninivivii 28

Kimel v. Florida Bd. of Regents, 528 U.S. 62

SSI isiieicieesepenieanpeensiintntiibicicendennisabiesibnianiieienishiemidiiananed 8

Linder v. United States, 268 U.S. 5 (1925) ..........ccccceeeeee 4

y *

New York v. United States, U5 U.S. 144

SE EFT snaininssininstintenunaneinnecemessicheiatenimmunavniannianienintin 8, 13

Ogden v. Gibbons, 17 Johns. 488 (N.Y.

STE sishanemasahaiaiicdisisinlapennibapenveliiieniunsdieinbeneniannniinetieiis 18

Pegram v. Herdrich, 530 U.S. 211 (2000)...........cccceeeeee 4

People v. Mower, 28 Cal. 4th 457 (2002) ..........ccccccsceeees 6

People ex rel. Lungren v. Peron, 59 Cal.

Re, Gp Ce Ce Ritrciteiismmennnnnnmiine 8

People v. Trippett, 56 Cal. App. 4th 1532

TE ee, SO nT Oe Na ET 6, 7

Printz v. United States, 521 U.S. 898 (1997)............ 8, 13

Raich v. Ashcroft, 352 F.3d 1222 (9th Cir.

TTT isiinsiaduscipuisieiinsasaieaiinsepibebaiiibdainghindduniasindiaananedeii 11,12, 13

Solid Waste Agency v. U.S. Army Corps of

ae a, Se SE, TI Gee cerreciesnneninconsnessnnensmneines 27

Sugarman v. Dougall, 413 U.S. 634 (1973).........ccc000 28

United States v. Darby, 312 U.S. 100 (1941) «0.0.0.0... 13

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

United States v. Morrison, 529 U.S. 598

TTI sinsnenietespasineniesintndlieeideainediiaeidedieimsaeetsitenteninaets 12, 13

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

SST cciinichiasssioasshitanliiintdeiiinipatabibiiobieniaiehiaaalianneaias 9

Wickard v. Filburn, 317 U.S. 111 (1942)... ee 13, 14

Youngstown Sheet & Tube Co. v. Sawyer,

iibiiidenieiiiciiiaiiicininnesincnbinaniiuntiinion 16

CONSTITUTIONAL PROVISIONS

Se GI, SOIR, Bea Be iecccreenensvesncesesinncneneanecmniniiciinnies 16, 21

a III, Mili itciinaiesticinicesienetionansibsnpenidistinioncaihi death 27

ee ITE: SPIN scnesenscrnscciepesinsitiehtanchinesibcinoseieaitiuiiania 8

CODES AND STATUTES

| __SAEERU nr N E 9

Be ae te nireclsdiilevnteneannnianinvcictuiiuanitatatubiibiabiuinidinniaaiat 9

Sa es NE csnisicihncceslenpieniainheriniceisiesciniaaelaiaiapiatinaaiitat aaa ala 13

Be a ciecsinstaeisicneseneacetenininssinesibeieliieaiteaintiaaatiaiibaliat 12

ae te: Mar UTUIE spvsicideensieitneseasinnnieicibinpenaiiibiaiaaaliedilianibedaiiiiaals 12

hE Tt | mene seveceesnsecceaseecsesoscescrseosccceseesese 12

Se eee Ne caieseaniteieieiehienihsinaalanebiisiiasiiaianaaiiiaieals 12

Cal. Health & Safety Code § 11357 .0......cecccccececseeeeeees 6

Cal. Health & Safety Code § 11358 .00.........ccccceeceeseeeseees 6

Cal. Health & Safety Code § 11359.0......cecccecccceceeeeees 6

Cal. Health & Safety Code § 11360..0...........ccccceceeeseeee 6

Cal. Health & Safety Code § 11361.5.........e eee eeeeeees 6

Cal. Health & Safety Code § 11364.00........0ceccecceeeeeeees 6

Cal. Health & Safety Code § 11470 .0........ccceccecceeeeeeees 6

oR LE Senne eee ene 6

Compassionate Use Act of 1996, Cal. Health

& Safety Code § 11362.5 .....ccccccccccscccccccceseccsccsscess 4,7

H.R. Rep. No. 1444, 91st Cong., 2d Sess. Pt.

HF aera cseincintecinncictincheiahacsedihactiiagihesibeeiebieiiiiciiniieainepiaii 12

OTHER AUTHORITIES

1 Jonathan Elliot, Debates in the Several

State Conventions on the Adoption of the

Federal Constitution (2d ed. 1836) .........cccccccccc0eeeee 20

vii

2 The Writings of James Madison (G. Hunt

1, Fa xccninsncrrnisnsineiznisinniinnndstesiiiuenuannmnnngia

21 U.S. 1 (Daniel Webster, for the Plaintiff) ................

61 Ops. Cal. Atty. Gen. 192 (1978)... ccecseeeteeeeeees

Arthur B. Mark, III, Currents in Commerce

Clause Scholarship Since Lopez: A

Survey, 32 Cap. U. L. Rev. 671 (2004) 20...

Brief for the Petitioners, Ashcroft v. Raich

SUIDIITTI ninsceinsunsonieisianiesnenenuncinabiitaniniatmtinenibinneitis passim

Douglas W. Kmiec, Rediscovering a

Principled Commerce Power, 28 Pepp.

L. Rev. 547 (2001)

F. Hayek, 1 Law, Legislation, and Liberty

Ta visicesssiesccnceneiieinbapninianssasininaieaenninaumneninnts

The Federalist No. 11 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ...........ccccceeeeeeseeeeeeeeeeees

The Federalist No. 17 (Alexander Hamilton)

(Clinton Rossiter €d., 1961).............ccccccccsessocesccssscee

The Federalist No. 32 (Alexander Hamilton)

(Clinton Rossiter ed., 1961)............ccccccccsssccscsscsoscoee

Grant S. Nelson & Robert J. Pushaw, Jr.,

Rethinking the Commerce Clause:

Applying First Principles to Uphold

Federal Commercial Regulations but

Preserve State Control Over Social

Issues, 85 lowa L. Rev. 1 (1999)... eeeeeeeeeeeeeeees

Kathleen M. Sullivan, The Justices of Rules

and Standards, 106 Harv. L. Rev. 22

CREE EERE E EE ES

Viii

Laura M. Rojas, Comment, California's

Compassionate Use Act and the Federal

Government's Medical Marijuana

Policy: Can California Physicians

Recommend Marijuana to Their Patients

Without Subjecting Themselves to

Sanctions?, 30 McGeorge L. Rev. 1373

Notes of Debates in the Federal Convention

of 1787 Reported by James Madison

(W.W. Norton & Co. 1966)........cccccccesccssceesessceeeeees 20

“Off-Label Use of Marketed Drugs,

Biologics and Medical Devices,” FDA

IRB Information Sheet (1998 Update)............... —

Policy 120.988, AMA Policy Compendium

FT iitatiniathtbadeesieniindeiniiitibiiinntanitintpiniianspaniditiatpinsinasibadines 8

Proposition Pamphlet, Argument Against

Proposition 215, available at

http://vote96.ss.ca.gov/Vote96/html/BP/2

NIN sts iicnshesiabelnieieheiehiieiheiaiapmanteastdabiasinsiiis 5

Proposition Pamphlet, Argument in Favor of

Proposition 215, available at

http://vote96.ss.ca.gov/Vote96/html/BP/2

Randy E. Barnett, The Original Meaning of

the Commerce Clause, 68 U. Chi. L.

I as 22

Records of the Debates in the Federal

Convention of 1787 as Reported by

James Madison 389 (Charles C. Tansill

ed., Legal Classics Library 1989) (1927).......... 20, 25

ix

Report of the Council on Scientific Affairs

3-A-97, Unlabeled Indications of Food

and Drug Administration-Approved

BIPUID cemnccrsssceressexmsvemstavaeusieneesieeeamanannsmesvoenneseengasees

Richard A. Epstein, The Proper Scope of the

Commerce Power, 73 Va. L. Rev. 1387

(FIN Prencansensecscncesvistpmecsssentsncssnenmventtestammennessuses

Robert L. Stern, That Commerce Which

Concerns More States Than One, 47

Th | ee

Roger Pilon, Freedom, Responsibility, and

the Constitution: On Recovering Our

Founding Principles, 68 Notre Dame L.

BRDU. FP © PPD cnesevesnenmacsntiensernenienvenenemenees

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE'

The Cato Institute was established in 1977 as a

non-partisan public policy research foundation dedicated to

advancing the principles of individual liberty, free markets,

and limited government. Cato’s Center for Constitutional

Studies was established in 1989 to help restore the principles

of limited constitutional government, especially the idea that

the U.S. Constitution establishes a government of delegated,

enumerated, and thus limited powers. Toward that end, the

Institute and the Center undertake a wide range of

publications and programs, including, notably, the Cato

Supreme Court Review. Counsel of Record for Cato’s brief

is Professor Douglas W. Kmiec, a leading scholar of

constitutional law and recently Dean of The Catholic

University of America, who also previously served as

Assistant Attorney General of the United States, Office of

Legal Counsel, U.S. Department of Justice, during the

administrations of Presidents Reagan and George H.W. Bush.

The instant case raises squarely the question of the limits on

the federal government’s power under the doctrine of

enumerated powers and is thus of central interest to the Cato

Institute and its Center for Constitutional Studies.

SUMMARY OF ARGUMENT

The Court of Appeals should be affirmed. Affirmance

follows from: the limited, noncommercial and intrastate

medicinal use of marijuana authorized by the people of

California, the responsible state judicial construction of that

' In conformity with Supreme Court Rule 37, amicus has obtained

the consent of the parties to the filing of this brief and letters of consent

have been filed with the Clerk. Amicus also states that counsel for a party

did not author this brief in whole or in part; and no person or entities

other than the amicus, its members, and counsel made a monetary

contribution to the preparation and submission of this brief.

rh

authority, and a reasoned application of the modern

Commerce Clause precedents of this Court. Because the

terminology of channels, instrumentalities, and substantial

effects is subject to over-extension, however, this case is also

an appropriate vehicle for linking this useful, but sometimes

misused, short-hand to the origina! understanding of the

commerce power. By doing this, the Court will be giving

honor to the principles of federalism so well articulated by

the late Justice Powell in Garcia v. San Antonio Metropolitan

Transit Authority, 469 U.S. 528, 568 (1985) (Powell, J.,

dissenting): “In our federal system, the States have a major

role that cannot be pre-empted by the National Government.

As contemporaneous writings and the debates at the ratifying

conventions make clear, the States’ ratification of the

Constitution was predicated on this understanding of

federalism.”

The ratification bargain is dishonored when citizens in

great physical pain are deprived of available medical

treatment by a remote sovereign on the far side of the

continent. Respect for state authority is abandoned when the

only mildly effective therapy for a severe and inoperable

illness is mocked in litigation advocacy, as it has been by the

federal government here, as a “homegrown” or a “purported”

medicinal treatment. Federalism is ignored when, by a

thoughtful act of direct state democracy, the neighbors

closest to those seeking medical relief overwhelmingly

authorize the “compassionate use” of an otherwise controlled

substance, but such compassion is then peremptorily denied

with a recital of outworn boilerplate about how these acts of

federalism “substantially affect” interstate commerce.

Modern Commerce Clause analysis falters when textual

definition is separated from constitutional purpose. This is

not what the founding generation intended — and this case

offers an opportunity to put the original conception of the

commerce power back at the core of the Court’s thinking.

The contours of the original understanding of the commerce

power can be gleaned from consideration of three principal

sources: (1) Chief Justice John Marshall’s seminal opinion in

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); (2) the

argumentation of Daniel Webster in that case, which clarifies

and completes Marshall’s reasoning; and, most importantly,

(3) the wording of the Virginia Resolution, which is the

genesis of the Commerce Clause. Together, these sources

delineate the purpose underlying the commerce power, under

which the federal government may act to remedy actual state

regulatory incapacity and promote genuinely national

interests. The purposive conception of the commerce power

yields a workable framework for restraining constitutionally

overbroad claims of federal legislative power — one that

incorporates, refines, and supplements the best components

of the modern Commerce Clause framework.

What is suggested here requires a modest elaboration of

the understanding of the commerce power, but one that can

do much good: By taking the opportunity to _re-connect

Commerce Clause analysis to this original understanding, the

Court will again make it possible for citizens who depend

upon the structure of the Constitution for the preservation of

liberty — and, in this case, a life without unbearabie pain —

to “understand the principle on which this system was

constructed.”

? As Founder James Wilson more fully observed:

I consider the people of the United States as forming one

great community, and . . . the people of the different States as

forming communities again on a lesser scale. From this

great division of the people into distinct communities it will

be found necessary that different proportions of legislative

powers should be given to the governments, according to the

nature, number and magnitude of their objects. . . .

... Unless the people are considered in these two views, we

shall never be able to understand the principle on which this

system was constructed.

James Wilson, Pennsylvania Ratifying Convention (Dec. 4, 1787),

reprinted in | The Founders’ Constitution 62 (P. Kurland & R. Lerner

eds., 1987).

ARGUMENT

Part I undertakes a brief summary of key arguments in

favor of the California statute under modern precedent. As

this Part demonstrates, respondents should prevail as a matter

of stare decisis alone. Part II illustrates how re-connecting

existing precedent to the underlying purpose of the commerce

power helps avoid the federal over-reaching that is so evident

in this case.

I. MODERN COMMERCE CLAUSE ANALYSIS

SUPPORTS RESPONDENTS

A. The Compassionate Use Act Is Within The

Province Of Traditional State “Expertise”

Over Health Care

Justices Kennedy and O’Connor affirmed in Lopez that

in areas of traditional state concern, where states “lay claim

by right of history and expertise,” the federal government

ought not legislate “beyond the realm of commerce in the

ordinary and usual sense of that term.” United States v.

Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., and

O’Connor, J., concurring). The Compassionate Use Act,

which allows for the limited use of a controlled substance

under a doctor’s care (Cal. Health & Safety Code 11362.5),

fits squarely within an area of state expertise. Protecting the

health and safety of citizens has been “primarily, and

historically, . . . [a] matter of local concern.” Hillsborough

County v. Automated Medical Laboratories, Inc., 471 U.S.

707, 719 (1985). For this reason, this Court has

acknowledged that the local provision of health care is a

“subject of traditional state regulation.” Pegram v. Herdrich,

530 U.S. 211, 237 (2000). Moreover, this Court has stated

that “the direct control of medical practice in the States is

beyond the power of the Federal Government.” Linder v.

United States, 268 U.S. 5, 18 (1925). It is deep-seated and

“elemental” that states retain “broad power” relating to the

“establish{ment] and enforce[ment] of standards of conduct

within its borders” that facilitates its citizens’ health needs.

See Great Atlantic & Pacific Tea Co., Inc v. Cottrell, 424

5

U.S. 366, 371 (1976); Barsky v. Board of Regents, 347 U.S.

442, 449 (1954). This broad power “extend{s] naturally to

the regulations of all professions concerned with health.” /d.

Here, the State of California has exercised its historic

power over local health and welfare in a deliberative and

circumspect manner. In 1996, California voters, by an

overwhelming 56% majority (greater than the vote

percentage received by either Presidents Clinton or Bush in

the state — and, for that matter, most other elected officials),

approved the Compassionate Use Act as Proposition 215.

The arguments for and against the proposition were clear and

pointed. Doctors and nurses reported witnessing firsthand

the medical benefits of marijuana, especially in respect to

cancer patients. These medical professionals described how,

because of side-effects of certain cancer treatments (for

example, nausea induced by chemotherapy), one-third of

seriously ill patients discontinue those treatments despite a

50% chance of improvement. By contrast, they argued that

when standard anti-nausea drugs fail, marijuana ingested in

food or by smoking is often the only medication that eases

patients’ nausea, permitting continued treatment. ’

Cn the other side, opponents of the initiative noted that

the federal government allows patients to take Marinol, an

FDA-approved synthetic substitute for marijuana. The

opponents also argued that the proposition might be the first

step toward broader drug legalization. Finally, some

members of the law enforcement community (a constituency

that was divided on the topic) explained possible

enforcement obstacles.*

In approving the Compassionate Use Act, Californians

balanced these competing concerns, keeping in place tight

* For a brief summary of positions in favor of Proposition 215, see

Proposition Pamphlet, Argument in Favor of Proposition 215, available

at http://vote96.ss.ca.gov/V ote96/html/BP/2 | Syesarg.htm.

* For a brief summary of positions against the Proposition, see

Proposition Pamphlet, Argument Against Proposition 215, available at

http://vote96.ss.ca.gov/Vote96/htmI/BP/2 | Snoarg.htm.

6

state controls and prohibitions on marijuana outside the

heavily regulated medical context. Mere possession of one

ounce or less remains a crime, for example. Cal. Health &

Safety Code § 11357(b). Possession with the intent to sell

any amount is a felony. Cal. Health & Safety Code § 11359.

Non-medicinal cultivation of any amount is a felony. Cal.

Health & Safety Code § 11358. Sale, transportation, or

distribution of marijuana is a felony under Cal. Health &

Safety Code § 11360. There are also provisions specifically

outlawing: the sales to minors, Cal. Health & Safety Code §

11361, and the sale or manufacture of marijuana

paraphernalia, Cal. Health & Safety Code § 11364. Driving

privileges may be suspended for marijuana violations, Cal.

Veh. Code § 13202.5, and the forfeiture of vehicles is

provided for upon conviction for large amounts, Cal. Health

& Safety Code § 11470.

The state judicial construction of the Compassionate

Use Act has been equally circumspect. First, in People v.

Mower, 28 Cal. 4th 457 (2002), the California Supreme

Court rejected claims that the Act created an immunity from

arrest, either expressly or impliedly. Rather, it recognized a

limited immunity from prosecution, which allows a defense

at trial, and permits a motion to set aside an indictment or

information prior to trial. /d. at 470. Thus, a defendani may

raise his or her status as a qualified patient or primary

caregiver as a defense at trial or in moving to set aside an

indictment or information prior to trial. /d. at 470-74. The

burden of proof as to this affirmative defense is allocated to

the defendant. /d. at 480-81.

In similarly circumspect fashion, the court in People v.

Trippett, 56 Cal. App. 4th 1532 (1997), rev. denied, 1995

Cal. LEXIS 8225 (Cal. Nov. 15, 1997), reasoned that even

with a physician’s recommendation or approval, a patient

may not possess an unlimited quantity of marijuana under the

Act. Rather, the quantity possessed, and the form and

manner of its possession, must be reasonably related to the

patient’s current medical needs. /d. at 1549.

J

In reaching those conclusions, the state court noted that

law enforcement authorities had given their support to the

proposition because they did not “want to send cancer

patients to jail for using marijuana” (id. at 1546); but at the

same time, the Act carefully provided that “[n]Jothing in this

section shall be construed to supersede legislation prohibiting

persons from engaging in conduct that endangers others, nor

to condone the diversion of marijuana for nonmedical

purposes.” Cal. Health & Safety Code § 11362.5(b)(2).

B. The Compassionate Use Act Does Not

Interfere With The Federal Interests

Asserted Here

Against the state’s claims to authority, the federal

government states a national interest in controlling illicit drug

trafficking and promoting safe and effective drug usage. The

federal government further asserts that this Court must apply

“a ‘rational basis’ standard that reflects broad deference to

legislative judgments regarding whether the intrastate activity

at issue” may be federally regulated. Brief of Petitioners at

16 (hereinafter U.S. Brief). These arguments do not

withstand scrutiny.

At the outset, the government’s unqualified advocacy of

“broad deference” to the federal legislature fails to credit the

place of federalism in our constitutional system, and this

Court’s commitment to it. It is reminiscent of an earlier

Court’s unfortunate consignment of federal-state balance to

the vicissitudes of politics. Garcia v. San Antonio Metro.

Transit Auth, 469 U.S. 528, 588 (1985) (“With the

abandonment of National League of Cities, all that stands

between the remaining essentials of State sovereignty and

Congress is the latter’s underdeveloped capacity for self-

restraint. The problems of federalism in an integrated

national economy are capable of more responsible resolution

than holding that the States as States retain no status apart

from that which Congress chooses to let them retain.”)

(O’Connor, J., dissenting). It is far more constitutionally

faithful to recognize, as this Court has, that both the political

8

branches and the judiciary have an essential role in

safeguarding the federal-state balance. “The political

branches of the Government must fulfill [this role] if

democratic liberty and the federalism that secures it are to

endure.” Lopez, 514 U.S. at 578 (Kennedy, J. and O’Connor,

J., concurring).

Nor is the federal government’s proposed “rational

basis” test consistent with parallel federalism precedents.

The federal-state balance is not satisfied by a rational basis

inquiry when the federal government improperly commands

a state to legislate or enforce federal edict, New York v.

United States, 505 U.S. 144 (1992); Printz v. United States,

521 U.S. 898 (1997); or when the federal government

imposes monetary liability contrary to principles of state

immunity, Kimel v. Florida Bd. of Regents, 528 U.S. 62

(2000); Bd. of Trustees of the Univ. of Alabama v. Garrett,

531 U.S. 356 (2001). And it also is insufficient to answer

whether the federal government has stayed within its

enumerated powers.’ In each of these contexts, the Court

applies deference to Congress’ legislative purpose but does

not apply rational basis deference when determining whether

that purpose has been accomplished through an improper

invasion of state authority.

Finally, the federal interests asserted by the government

as a justification for intruding on state authority are not

implicated by the Compassionate Use Act. First, the

California Supreme Court has held the Act does not in any

way license the introduction of marijuana into the stream of

commerce. People ex rel. Lungren v. Peron, 59 Cal. App.

4th 1383 (1997), rev. denied, 1998 Cal. LEXIS 1321 (Cal.

aif Congress could define its own powers [under Section 5 of the

Fourteenth Amendment] by altering the Fourteenth Amendment’s

meaning, no longer would the Constitution be ‘superior paramount law,

unchangeable by ordinary means.’” City of Boerne v. Flores, 521 U.S.

507, 529 (1997). Congress should not be permitted to merely define its

own power here, either. See, e.g., id. at 508 (“Congress does not enforce

a constitutional [power] by changing what the [power] is.”).

™ 9

Feb. 25, 1998) (denying even nonprofit. associations a

defense under the Act, affirming that the Act only gives an

affirmative defense to the patient or a patient’s primary

caregiver from prosecution for cultivation or possession).

Second, California’s approval for the limited medicinal

use of marijuana presents no interference with the FDA’s

new drug approval authority. That authority relates expressly

to procedures pertaining to introducing a drug into the

interstate market for sale. 21 U.S.C. §§ 355(a), (b) (2003).

This Court’s decision in United States v. Rutherford, 442

U.S. 544 (1979), sustaining the FDA’s authority even as

against terminally ill patients, is likewise undisturbed by the

medicinal marijuana use here, which implicates no plan for

interstate marketing. Acknowledging that the federalist

structure of the Constitution reserves at least some

components of the relationship between doctor and patient

for state oversight is hardly inconsistent with Rutherford’s

recognition that the FDA has regulatory authority over

nationwide marketing of pharmaceuticals.

The acting Solicitor General writes that it is solely for

Congress to “constitutionally conclude[] that the public

should use only those drugs that the FDA has approved as

safe and effective. . . ,” U.S. Brief at 27, but FDA practice,

itself, denies this unrefined claim of centralized medical

direction. The Federal Food, Drug and Cosmetic Act

(FDCA) does not flatly prohibit a physician from prescribing

or dispensing an unapproved drug outside the bounds of an

approved investigational drug study. To the contrary, it

explicitly permits a physician, or a pharmacist upon a

physician’s order, to compound or mix a modified drug

product for an identified patient, without obtaining “new

drug” approval from the FDA. 21 U.S.C. § 353 (2004). In

addition, patients may take, on prescription, an approved

medication for an unapproved medical use — a so-called

“off-label” prescription. The American Medical Association

takes the position that “a physician may lawfully use an FDA

approved drug product for an unlabeled indication when such

use is based upon sound scientific evidence and sound

10

medical opinion.” Policy 120.988, AMA Policy Compendium

1996.°. The AMA has found this off-label authority to be

particularly important in the areas of oncology and rare

diseases, like those confronted by respondents. Report of the

Council on Scientific Affairs 3-A-97, Unlabeled Indications

of Food and Drug Administration-Approved Drugs.’ The

federal government’s sweeping claim that it has created a

highly-regulated “closed-system” with respect to controlled

substances is thus contrary to federal law as it exists and as it

is practiced.

Third, there is no evidence the Act will interfere with

enforcement of preexisting criminal drug policy. To be sure,

the federal government has argued that the Act will make it

more difficult for law enforcement officials to identify

possession of illicit drugs, because they will have to

differentiate between cultivation and possession that is legal

and that which is not. But, this argument is belied by

distinctions law enforcement officers make every day. Law

enforcement agents regularly are called upon to differentiate

between legal and illegal conduct that manifests itself in

largely the same manner. Vicodin and Oxyconton are just

two examples of drugs that are available legally under a

physician’s care, but that are also trafficked illegally on the

illicit drug market. One use is subject to prosecution, the

other is not. Similarly, in states that have laws that make it

legal to carry a firearm, agents must differentiate between

legal and illegal gun possession.

© See also “Off-Label Use of Marketed Drugs, Biologics and Medical

Devices,” FDA IRB Information Sheet (1998 Update), available at

http://www. fda.gov/oc/ohrtv/irbs/offlabel.html.

The California Attorney General has opined that the state and

federal drug approval laws were intended to protect consumers from drug

manufacturers, not to interfere with the physician’s judgment regarding

individual patient treatment. See 61 Ops. Cal. Atty. Gen. 192 (1978).

1]

In this very case, Judge Beam in dissent in the court

below doubted “whether anyone can or will seriously argue

that the DEA intends to prosecute these two seriously ill

individuals,” Raich v. Ashcroft, 352 F.3d 1222, 1237 (9th Cir.

2003) (Beam, J., dissenting), suggesting that a few

individuals with medical needs are fully capable of being dis-

aggregated from the main enforcement tasks of the DEA.

Judge Beam cited law review commentary indicating that the

DEA generally leaves minor possession cases to state

officers. Jd. at 1237 (Beam, J., dissenting). It would seem

that federal law enforcement personnel on the beat have a

better, more workable, grasp of the federal-state balance than

their federal lawyer counterparts.

It is the federal government’s failure to appreciate the

federal-state balance that complicates federal law

enforcement. As this Court observed in Lopez, “[t]he statute

now before us forecloses the States from experimenting and

exercising their own judgment in an area to which States lay

claim by right of history and expertise, and it does so by

regulating an activity beyond the realm of commerce in the

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

583 (Kennedy, J., and O’Connor, J., concurring). Indeed,

various local counties and police departments in California

have already devised means by which to certify patients who

are eligible to use marijuana for medical purposes.*

C. The Object Of The California Regulation

Does Not Qualify As “Commerce”

Congress’ power to regulate “commerce” under modern

Commerce Clause jurisprudence does not extend to objects

® in this regard, a certification card in Arcata, California, “contains

an identification number that officers in the field can verify by contacting

the dispatcher.” Laura M. Rojas, Comment, California's Compassionate

Use Act and the Federal Government's Medical Marijuana Policy: Can

California Physicians Recommend Marijuana to Their Patients Without

Subjecting Themselves to Sanctions?, 30 McGeorge L. Rev. 1373, 1421

(1999) (noting a similar effort in Marin County).

12

(i.e., actors, products, or conduct) that fail to exhibit a

demonstrated “commercial nexus.” See, e.g., Lopez, 514

U.S. at 557, 558 (Congress may not use “a relatively trivial

impact on commerce as an excuse for broad general

regulation of state activities”; rather, “a general regulatory

statute” must bear a “substantial relation to commerce”’)

(internal quotations omitted); id. at 580 (Kennedy, J.,

concurring) (“neither the actors nor the commercial

character, and neither the purpose nor the design of the

statute have an evident commercial nexus”). The activity at

issue here — intrastate activity occurring outside the stream

of commerce — lacks any such nexus and is therefore

beyond the scope of federal legislative power. See, e.g.,

United States v. Morrison, 529 U.S. 598, 611 (2000) (“in

those cases where we have sustained federal regulation of

intrastate activity based upon the activity’s substantial effects

on interstate commerce, the activity in- question has been

some sort of economic endeavor”).

To be sure, marijuana is a_ federally-controlled

substance.” Congress enacted the Controlled Substances Act

(CSA) “to deal . . . with the growing menace of drug abuse in

the United States.” H.R. Rep. No. 1444, 91st Cong., 2d Sess.

Pt. 1, at 1 (1970). But, as discussed in Parts I.A and I.B

” For a summary of the CSA’s relevant provisions, see Raich, 352

F.3d at 1224:

The CSA establishes five “schedules” of certain .. .

“controlled substances.” 21 U.S.C. §§ 802(6), 812(a).

Marijuana is a schedule I controlled substance[, ] id §

812(c)[,] [based on a finding] (1) that the substance “has a

high potential for abuse”; (2) that the substance “has no

currently accepted medical use in treatment in the United

States”; and (3) that there is “a lack of accepted safety for

use of the drug or other substance under medical

supervision.” /d. at § 812(b)(1). . . . Among other things, the

CSA makes it unlawful to knowingly or intentionally

“manufacture, distribute, or dispense, or possess with intent

to manufacture, distribute, or dispense, a _ controlled

substance,” except as provided for in the statute. 21 U.S.C. §

841(aX(1). Possession... is also unlawful. /d § 844(a).

13

above, the California statutory framework prohibits inter-

state sale, manufacture, or distribution of any drug — and

authorizes only the medicinal, intrastate use of marijuana

under medical supervision. Furthermore, although Congress,

in enacting the CSA, made findings on both interstate and

intrastate manufacturing and distribution of controlled

substances and their affects on interstate commerce,

Congress made no finding concerning the intrastate,

noncommercial cultivation and possession of marijuana for

personal medical purposes as recommended by a patient’s

physician. See 21 U.S.C. §§ 801(3)-(6). As the court below

pointed out, the “limited use [of cannabis in this case] is

clearly distinct from the broader illicit drug market — as well

as any broader commercial market for medicinal marijuana

— insofar as the medicinal marijuana at issue in this case is

not intended for, nor does it enter, the stream of commerce.”

. Raich, 352 F.3d at 1228.

The federal government here seeks to obscure the

intrastate, noncommercial character of the activity at issue by

adducing this Court’s broadest expositions of the commerce

power’? in Wickard v. Filburn, 317 U.S. 111 (1942), and

United States v. Darby, 312 U.S. 100 (1941); the

government, however, pays short shrift to this Court’s

subsequent rejection of the argument that intrastate non-

commercial activities are a basis for aggregation under the

“substantial effects” test. Morrison, 529 U.S. at 617 (“We

accordingly reject the argument that Congress may regulate

noneconomic . . . conduct based solely on that conduct’s

aggregate effect on interstate commerce.”). ”

'° The Lopez Court characterized Wickard as “perhaps the most far

reaching example of Commerce Clause authority over intrastate activity.”

Lopez, 514 U.S. at 560. The Darby Court’s unfortunate trivialization of

the Tenth Amendment as little more than a “truism” was unnecessary,

unfaithful to the Constitution’s structure, and surely was superseded by

the decisions of the modern Court. See New York v. United States, 505

U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997).

'' While the record in this as-applied challenge demonstrates a

complete absence of interstate or intrastate commercial activity, the

14

Moreover, even assuming Wickard and Darby apply

here, both cases in fact undermine the government’s case:

Both undeniably involved instances of economic policy in a

way that the activity here, in Lopez, and in Morrison do not.

As the Wickard Court observed, the purpose of the regulation

in that case “was to increase the market price of wheat, and to

that end to limit the volume thereof that could affect the

market. It can hardly be denied that a factor of such volume

and variability as home-consumed wheat would have a

substantial influence on price and market conditions.”

Wickard, 317 U.S. at 128. The home consumption in

Wickard was thus all about, as the government

acknowledges, “Congress’s broader regulation of the supply,

demand, and prices in the interstate wheat market. . . .” U.S.

Brief at 15. The overriding economic considerations behind

Darby are also likewise apparent. The Court accepted

Congress’ thinking that goods made in a substandard labor

environment could be kept out of the national market. The

Court reasoned that the labor conditions needed to be

addressed nationally because wages and hours could not be

effectively addressed by any single state since the market

would naturally produce a price advantage for employers

utilizing a lower wage scale.

In short, a faithful application of modern precedent leads

to the conclusion that there is no federal “commercial”

interest at stake here. Medicinal consumption of home-

grown marijuana, administered under a doctor’s oversight,

pursuant to a validly-enacted statute, is a wholly intrastate

activity that: (1) exists outside the stream of (legal or illegal)

“commerce” within the meaning even of Wickard or Darby,

and (2) under Lopez and Morrison cannot be aggregated.

Unlike in Wickard, the facts at bar demonstrate no attempt to

federal government asserts, without any factual basis, that personal

medical use of a drug is “economic activity.” U.S. Brief at 21. This is

unexplained and is far less even than “inference [piled] upon inference.”

Lopez, 514 U.S. at 567.

15

consume goods that state law would permit to be made

available to an interstate market. By comparison, farmer

Filburn faced no relevant state law limitation upon the

disposition of his wheat crop and was thus legally

empowered to frustrate federal objectives. And, unlike in

Darby, there is no state legal authority to introduce into the

interstate market goods that the federal government desires to

exclude. |?

Il. THE COURT SHOULD TAKE _ THIS

OPPORTUNITY TO ANCHOR MODERN

COMMERCE CLAUSE ANALYSIS TO THE

ORIGINAL UNDERSTANDING OF THE

COMMERCE POWER

A. Definitional Formulations Of The Commerce

Power, Unattached To The Underlying

Constitutional Purpose Of The Power, Risk

Slighting State Authority

The analysis in Part I illustrates that the modern

Commerce Clause framework favors the respondent and is

capable of rendering a result consistent with the intended

federal-state balance. However, definitions unattached to the

original understanding or purpose of the commerce power are

more easily subject to manipulation and error. Thus, the

government’s primary argument consists of little more than a

series of scholastic definitional assertions — that personal

” Again, in wholesale denial of the decision in Morrison, the federal

government claims that Wickard allows Congress to regulate intrastate

activity “which itself may not be overtly commercial in nature.” U.S.

Brief at 15. Here, the federal government confuses the well-established

principle that Congress’ motivation for regulation is irrelevant with the

proposition, rejected in Lopez and Morrison, that non-commercial acts

cannot be aggregated for purposes of substantial effects analysis. The

first principle properly keeps the Court out of legislative policymaking.

The latter Morrison proposition, however, ensures that the Court can

meaningfully demarcate federal-state lines of authority. The two inquiries

must not be conflated.

16

medical use of a drug is “economic activity” (U.S. Brief at

21) that is not “overtly commercial,” but is nonetheless in

aggregate “commercial” enough (U.S. Brief at 15, 21) or

“substantial” enough (U.S. Brief at 20) to be counted as

“substantially related to” interstate commerce and within the

scope of federal authority.

The singular reliance on such conclusory assertions of

federal power ought not to be permitted to overwhelm the

deeper structural considerations of original understanding

that have guided the Court so well elsewhere. Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

(constraining executive power); /NS v. Chadha, 462 U.S. 919

(1983) (constraining legislative power). Members of this

Court have noted this analytical omission, observing that, of

the many structural elements of the Constitution (the

separation of powers, checks and balances, and federalism),

only with respect to federalism has there been “much

uncertainty respecting the existence, and the content, of

standards that allow the Judiciary to play a significant role in

maintaining the design contemplated by the Framers.”

Lopez, 514 U.S. at 575 (Kennedy, J., and O’Connor, J.,

concurring).

The Constitution’s text is unassailabiy the locus of

interpretative effort, and other short-hand _ rubrics

(“channels,” “instrumentalities,” “substantial effects”) must

be understood in a way that is faithful to that text. Justice

Thomas has tellingly noted the textual difficulty surrounding

the “substantial effects” prong, for example, writing that

“{t]he Commerce Clause does not state that Congress may

‘regulate matters that substantially affect commerce. . .””;

indeed, “the Framers could have drafted a Constitution that

contained a ‘substantially affects interstate commerce’ clause

had that been their objective.” Lopez, 514 U.S. at 587-88

(Thomas, J., concurring). They did not. Instead, the Framers

drafted a Constitution that gave Congress the power “to

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

Const. art. I, § 8. The textual meaning of this grant of power

is crystallized only when the Clause is interpreted in harmony

17

with the purpose that the Framers intended this grant to

accomplish.

That purpose is revealed by examining John Marshall’s

seminal opinion in Gibbons v. Ogden, supra; Daniel

Webster’s oral argument in that case; and the Virginia

Resolution, which was the genesis of the Commerce Clause.

Together, these sources, examined below, underscore that the

Framers granted the commerce power to Congress with an

overarching aim: to empower the national goverment to

vindicate genuinely national interests — that is, those held by

the nation as a whole, such as interstate movement and

transportation, communication, or national defense — or to

address a commercial subject that cannot be addressed by an

individual state without undermining the policies of other

States.

Recurring to the Founders’ purpose is not an invitation

to resurrect the Court’s one-time practice of declaring some

purposes unacceptable by its own lights. California and the

respondents should not prevail in this litigation because a

transient majority of the Court thinks the manner in which

California has chosen to address the health of its citizens is

important or wise. No, California and the respondents should

prevail because interpreting the CSA to preclude the

Compassionate Use Act does not serve the underlying

purpose of the commerce power, and, therefore, no federal

enactment can be construed to displace the states and still be

faithful to the original understanding.

B. John Marshall Opens The Door To A

Purpose-Based And Principled Commerce

Clause Analysis In Gibbons v. Ogden

The correct analytical approach is made plain by a

consideration of Chief Justice John Marshall’s decision in

Gibbons v. Ogden, supra. The significance of Marshall’s

Gibbons instruction for discerning the scope of reserved state

authority is often overlooked since in that context the

purposive inquiry vindicated federal authority. In truth,

18

however, the guiding originalist principle is the same in

either case.

The issue in Gibbons was whether a federal law

licensing ships to engage in the “coasting trade,” under which

Gibbons operated, preempted a New York law granting a

thirty-year monopoly, held by Ogden, to ply the waters

between New York and New Jersey. See, e.g., Ogden v.

Gibbons, 17 Johns. 488 (N.Y. 1820), rev'd, 22 U.S. (9

Wheat.) 1 (1824). The effect of New York’s monopoly

grant, of course, was to preclude Gibbons from operating

under his federal license. In seeking to give the Commerce

Clause its full and accurate meaning, Chief Justice Marshall

pays attention to the words of the text, but begins his

argument with a discussion about how to _ interpret

constitutional text. Thus, he is concerned to avoid not only a

“narrow construction, which would cripple the [new federal]

government, and render it unequal to the object for which it is

declared to be instituted . . . ,” but also, and most importantly

for the present case, how an “enlarged construction” would

slight the reserved sovereign authority of the several states.

Gibbons, 22 U.S. at 188. Marshall’s focus is thus squarely

fixed upon the very purpose of the government the

Constitution creates. He writes: “If . . . there should be

serious doubts respecting the extent of any given power, it is

a well settled rule, that the objects for which it was given. . .

should have great influence in the construction.” /d. at 188-

89. Finally, to the same effect: “We know of no rule for

construing the extent of such powers [as the commerce

power], other than is given by the language of the instrument

which confers them, taken in connexion [sic] with the

purposes for which they were conferred.” /d. at 189

(emphasis added).

Clearly, Marshall thinks it important not simply to

engage in definitional analysis but to inquire about the

“purposes” for which the Constitution’s powers, and the

Constitution itself, were instituted. Only in this manner, he

suggests, will we be able to reach a true “construction” —

that is, one that gives due regard to both enumerated federal

19

power and reserved state authority. Unfortunately, however,

as scholars have pointed out, Marshall short-cuts analysis at

this point. See Roger Pilon, Freedom, Responsibility, and the

Constitution: On Recovering Our Founding Principles, 68

Notre Dame L. Rev. 507, 533-37 (1993). Rather than

elaborating the complete inquiry, he jumps rather quickly to

the conclusion that “commerce” includes navigation, not

mere “traffic” or the interchange of commodities. He is

correct, of course, but the closest he comes to overtly

identifying the functional account of the Commerce Clause is

to say that “[t}he power over commerce, including

navigation, was one of the primary objects for which the

people of America adopted their government . . .” Gibbons,

22 U.S. at 190. That is true, and important, but it doesn’t

fully disclose the functional account; for Marshall’s use of

“objects” here anticipates, but only suggests — without full

elaboration — why federal regulation of navigation coincides

with the constitutional purpose of the commerce power.

Nevertheless, as discussed below, it is obvious that to reach

his result, Marshall employed both the text and the purpose

underlying the text to fairly consider both the federal and

state sides of the commerce power.

C. The Federal And State Sides Of The

Commerce Power Are Best Understood In

Relation To The Original Purpose Of The

Underlying Virginia Resolution

To grasp the full import of the commerce power on both

its federal and state side one must necessarily ask: why should

the regulation in question come from the federal government?

As a matter of original understanding, this can only be made

evident by making reference to the Sixth Virginia Resolution

of 1787 (Virginia Resolution), from which the -commerce

power was derived. See Douglas W. Kmiec, Rediscovering a

Principled Commerce Power, 28 Pepp. L. Rev. 547, 560-62

(2001). The Virginia Resolution provides:

[T]hat the National Legislature ought to possess

the Legislative Rights vested in Congress by the

20

Confederation; and moreover, to legislate in all

cases for the general interests of the union, and

also in those cases to which the States are

separately incompetent, or in which the harmony

of the United States may be interrupted by the

exercise of individual Legislation.

Records of the Debates in the Federal Convention of 1787 as

Reported by James Madison 389 (Charles C. Tansill ed.,

Legal Classics Library 1989) (1927) (hereinafter Madison’s

Journal); also found in Notes of Debates in the Federal

Convention of 1787 Reported by James Madison 380 (W.W.

Norton & Co. 1966). Constitutional Convention delegate

Gunning Bedford Jr. added the language to legislate for the

“general interests of the union,” which he explained simply

meant to emphasize that states were separately incompetent

to legislate on such subjects. Edmund Randolph, Governor

of Virginia and chief sponsor of the original “separate

incompetence” language, was troubled by Bedford’s

proposal:

Mr. RANDOLPH. This is a formidable idea,

indeed. It involves the power of violating all the

laws and Constitutions of the States, and of

intermeddling with their police. The last member

of the sentence [regarding interrupted harmony] is

also superfluous, being included in the first

[regarding general interests].

Mr. BEDFORD. It is not more extensive or

formidable than the clause as it stands: no State

being separately competent to legislate for the

general interest of the Union.

Madison’s Journal, supra, at 389-90.

Bedford’s language carried, over Randolph’s objections,

and it was this modified vision of legislative power that the

Commiitee of the Whole referred to the Committee of Detail,

on July 26, 1787. 1 Jonathan Elliot, Debates in the Several

State Conventions on the Adoption of the Federal

Constitution 221 (2d ed. 1836). Randolph was on that

21

Committee, which promptly converted the more broadly

worded Virginia Resolution into the specific list of

ertumerated powers found in Article I, Section 8. Bedford

did not object to the replacement of his wording with a

specific list of enumerated powers, presumably because the

list accor ‘ished all that Bedford had intended. Neither

Bedford «01 any other Founder intended the Commerce

Clause to become a “sweeping clause” that could redraw the

federal-state balance upon congressional enactment. As

Robert L. Stern has commented:

Significantly, the Convention did not at any time

challenge the radical change made by the

committee [of detail] .... It accepted without

discussion the enumeration of powers made by the

committee which had been directed to prepare a

constitution based upon the general propositions

that the Federal Government was “to legislate in

all cases for the general interests of the Union...

and in those to which the states are separately

incompetent.” . . . This absence of objection to or

comment upon the change is susceptible of only

one explanation — that the Convention believed

that the enumeration conformed to the standard

previously approved, and that the powers

enumerated comprehended those matters as to

which the states were separately incompetent and

in which national legislation was essential.

Robert L. Stern, That Commerce Which Concerns More

States Than One, 47 Harv. L. Rev. 1335, 1340 (1934).

Even this brief reference to the Virginia Resolution

reveals how Marshall was able to so quickly ascertain the

scope of federal power in Gibbons and how that outcome

coincided with Madison’s own proposition that the national

government was to have “compleat authority in all cases

which require uniformity.” 2 The Writings of James Madison

345 (G. Hunt ed., 1904). Focusing on the Resolution is

helpful because it moves the Court beyond the tangled

J

22

debates over “commerce,” which tend to wax and wane,

depending on one’s ideology, between plenary power and

that strictly necessary to manage the concerns of the

eighteenth century. See generally Arthur B. Mark, III,

Currents in Commerce Clause Scholarship Since Lopez: A

Survey, 32 Cap. U. L. Rev. 671 (2004); see also Grant S.

Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce

Clause: Applying First Principles to Uphold Federal

Commercia. Regulations but Preserve State Control Over

Social Issues, 85 lowa L. Rev. 1 (1999) and Randy E.

Barnett, Zhe Original Meaning of the Commerce Clause, 68

U. Chi. L. Rev. 101 (2001). Under the Virginia Resolution,

“among the several states” was a synonym for power directed

at either vindicating a national commercial interest — that is,

one held by the nation as a whole, like interstate movement

and transportation, communication, or national defense — or

a commercial subject that cannot be addressed by an

individual state without undermining the policies of other

states.

It may be objected that dividing what is federal from

what is local in reliance upon principles of national interest or

state incapacity is too vague and manipulable to sustain such

division. In the analytical terms of former Stanford Dean

Kathleen Sullivan, the effort is too much standard and not

enough rule. Kathleen M. Sullivan, The Justices of Rules and

Standards, 106 Harv. L. Rev. 22, 58-60 (1992) (noting that

rules limit discretion; standards confer it and specifically

“tend[] to collapse decisionmaking back into the direct

application of the background principle or policy . . . ”).

There is truth to this objection, but it is a truth that must be

confessed about virtually any interpretative exercise. The

real question is whether reference to the Virginia Resolution

assists this Court in the preservation of constitutional

structure. The answer is clearly, yes. In this respect, the

specific clauses of the Resolution guide judicial inquiry into

purpose, asking: (1) whether the states are severally

incompetent; (2) whether the harmony of the United States

may be interrupted by individual state legislation; and (3)

23

whether the interest being legislated affects the “general

interests of the Union.”

D. Daniel Webster’s Argument In Gibbons

Completes And Explains John Marshall’s

Analysis — Revealing What Is National And

What Is Local

The prevailing counsel in Gibbons was Daniel Webster,

who explained vividly how the “general interests of the

Union” in navigation were being undermined in the waters

surrounding New York City in 1824. Argued Webster:

By the law of New-York, no one can navigate the

bay of New-York, the North River, the Sound, the

lakes, or any of the waters of that State, by steam

vessels, without a license from the grantees of

New-York, under penaity of forfeiture of the

vessel.

By the law of the neighbouring State of

Connecticut, no one can enter her waters with a

steam vessel having such license.

By the law of New-Jersey, if any citizen of that

State shall be restrained, under the New-York law,

from using steam boats between the ancient shores

of New-Jersey and New-York, he shall be entitled

to an action for damages, in New-Jersey, with

treble costs against the party who thus restrains or

impedes him under the law of New-York! This act

of New-Jersey is called an act of retortion against

the illegal and oppressive legislation of New-York;

and seems to be defended on those grounds of

public law which justify reprisals between

independent States.

It would hardly be contended, that all these acts

were consistent with the laws and constitution of

the United States. If there were no power in the

general government, to control this extreme

belligerent legislation of the States, the powers of

24

the government were essentially deficient, in a

most important and interesting particular. . . .

22 U.S. at 4-5 (Daniel Webster, for the Plaintiff)

(emphasis added).

It is instructive that Webster spent little time trying to do

what the federal government belabors in its briefing in this

case; namely, merely asserting that something is

“commerce,” or an activity that substantially affects it.

Webster termed it vain to look for a precise or exact

definition. That, he said, was not the way the Constitution

proceeded. Instead, the extent of the power was to be

measured by its object. And what was the object or

prevailing purpose of the commerce power? To rescue

(Webster’s word) the general Union from “the embarrassing

and destructive consequences, resulting from the legislation

of so many different States, and to place it under the

protection of a uniform law.” /d. at 11 (Daniel Webster, for

the Plaintiff).

Webster did not envision a commerce power without

limit. Indeed, the commerce power was not to-consume the

state’s separate sovereignty; rather, the Court was to interpret

the power to keep the interests of the two governments “as

distinct as possible. The general government should not seek

to operate where the states can operate with more advantage

to the community; nor should the states encroach on ground,

which the public good, as well as the constitution, refers to

the exclusive control of Congress.” /d. at 17 (Daniel

Webster, for the Plaintiff).

With reference to the Virginia Resolution and Webster’s

argumentation based upon it, the enigmatic nature of Chief

Justice Marshall’s opinion in Gibbons is completed and given

clarity. Now it is obvious why Marshall could so easily

construe commerce to include navigation, which on its face

to every first year law student seems a non sequitur to

commerce. The obscurity drops away when navigation is

linked not to commercial activity per se, but to an interest

that must be held by the union of the states in order to avoid

= 25

imperiling national interests. Indeed, Marshall’s decisional

words directly connect the concerns of the Virginia

Resolution to the scope of the commerce power, and in so

doing state a faithful constitutional understanding of both the

federal and state sides of the commerce power. He wrote:

The genius and character of the whole government

seem to be, that its action is to be applied to all the

external concerns of the nation, and to those

internal concerns which affect the States generally;

but not to those which are completely within a

particular State, which do not affect otver States,

and with which it is not necessary to interfere, for

the purpose of executing some of the general

powers of the government. The completely

internal commerce of a State, then, may be

considered as reserved for the State itself.

Gibbons, 22 U.S. at 195 (emphasis added).

E. The Federal Government’s Argument

Disregards The Purpose Of The Commerce

Power And Defies Original Understanding

John Marshall put into Supreme Court opinion what

Gunning. Bedford, Jr. meant when he said, “[N]o state [is]

separately competent to legislate for the general interest of

the Union.” Madison’s Journal, supra, at 362. Without this

grounding in original understanding, we forget this principled

limitation. A “national interest” is not synonymous with

simply a “very important” political topic, as_ the

argumentation of the acting Solicitor General’s brief would

have this Court believe. His reliance on the cumulative or

substantial effects element alone obscures, rather than

illuminates, the principle of the Virginia Resolution. In so

doing, he is unfaithful to the original understanding and, in

this instance, the power reserved to the states. In a different

case, disregarding the purposive base of the Virginia

Resolution might understate federal interests. To ask

whether an individual action “substantially affects” interstate

26

commerce, without reference to the purpose of the granted

power, is to ask an incomplete question.

A principled inquiry, by contrast, seeks to identify the

presence or absence of a commercial interest that can only be

claimed by the nation as a whole or that must be addressed

nationally because of demonstrated state incapacity. And

demonstrated state incapacity must be theoretically as well as

practically grounded, not merely rhetorically asserted. In this

respect, incapacity should mean that an individual state’s

regulatory activity would actually be defeated by the

competing regulatory policies of other states.

A standard informed by the Virginia Resolution

facilitates sorting that which is national from that which is

local and better grounds the Court’s modern commerce

decisions. In Morrison, for example, the federal government

insisted that “substantial effect” could be found in relation to

the voluminous congressional record on _ gender-based

violence. But there, fidelity to original understanding was

not measured by the page, but with an assessment of whether

the “general interests of the Union” necessitated a federal

cause of action for intrastate rape. Despite the mountainous

congressional testimony, there was no principled reason why

individual states could not adopt rape shield laws or harsher

civil or criminal penalties for violent assaults on the basis of

gender animus. Citizens migrate where personal safety is

better secured, not the converse. So, too, one would expect

citizens to be attracted to states exhibiting a reasoned interest

in their personal health and respect for individual medical

judgment. As a general matter, citizens migrate toward

greater freedom, and acknowledging the state side of the

commerce power will often sharpen state competition for

economic freedom, which can be easily deadened by

unwarranted federal intrusion.'?

13 : . : :

Since commerce is mostly a private sector matter, with

government enforcing the rules, there is no reason to suppose that the

federal government should do so. Under our common law system, most

of the rules of commerce began as informal customs or conventions. They

27

The same reasoning makes this case straightforward.

There is no evidence that California’s regulatory policy in

any way defeats parallel regulatory activity in another

jurisdiction — state or federal. To the contrary, as discussed

at length in Section I.A, the California statute prohibits and

criminalizes any activity that would implicate interstate trade

of banned substances. As a matter of original understanding,

states are more, not less, competent to regulate the health

interests of their individual citizens. Instead of posing

intractable questions about what does and does not

substantially affect interstate commerce, the purposive,

originalist inquiry asks a practical question: Does the state’s

regulatory scheme demonstrably act to defeat the regulatory

regimes of other states or an interest held by the nation as a

whole?

Some problems, of course, are national. Yet, in that

case too, anchoring commerce power analysis upon the

Virginia Resolution clarifies, for it suggests that trans-

boundary air and water resources, for example, may be

protected on a national level. The federal government has

that power so long as the Congress sufficiently identifies that

its legislative interest is a type of migratory resource that is

inherently plagued by conflicting regulatory schemes. Cf

Solid Waste Agency v. U.S. Army Corps of Engineers, 531

U.S. 159, 173-74 (2001) (finding the federal interest not

precisely identified, but suggesting it could be). Air and

water resources rarely inhabit one state. It is the common

nature of the resource that makes many questions involving

evolved over centuries and have simply been “recognized,” and

sometimes modified, by courts and legislatures as the need arose. See F.

Hayek, | Law, Legislation, and Liberty 72-93 (1973). Under our system

of limited government, therefore, there is a strong presumption that

people can regulate their own affairs, and that government is necessary

only when that presumption fails, leading to a case or controversy that is

brought before a court. The Tenth Amendment provides that the “powers

not delegated to the United States . . . are reserved to the States

respectively, or to the people.” U.S. Const. amend. X (emphasis added).

28

these resources collapse into a costly and wealth-minimizing

regulatory war between conflicting state jurisdictions, absent

a national solution. Similarly, Congress’ power to remedy

discrimination on the basis of race is not obviated by the

Virginia Resolution. Federal laws banning discrimination at

public accommodations, such as motels and restaurants,

vindicate a constitutional interest (racial nondiscrimination)

legally held by the nation as a whole. That national interest

need not rest upon awkward inquiries into the quantities of

goods and services held in trade. Cf Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241 (1964); Katzenbach v.

McClung, 379 U.S. 294 (1964). In the case at bar, by

contrast, there is — to paraphrase Daniel Webster — no

demonstrated state incapacity, no demonsirated federal-state

conflict, and no general interest of the union at stake.

California should remain free to experiment within the

bounds of its regulatory competence.

It should not be surprising that a return to constitutional

purpose does not deny the “practical realities” of the twenty-

first century, even as it supplies a healthy reminder of the

states’ primary role in the definition of crime. In Federalist

No. 17, Hamilton writes: “There is one transcendant [sic]

advantage belonging to the province of the State governments

. . . | mean the ordinary administration of criminal and civil

justice. This, of all others, is the most powerful, most

universal, and-most attractive source of popular obedience

and attachment.” The Federalist No. 17, at 120 (Alexander

Hamilton) (Clinton Rossiter ed., 1961). Moreover, returning

to a principled definition of the commerce power echoes the

Court’s own assessment that “[t]he States possess primary

authority for defining and enforcing the criminal law.”

Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (quoting

Engle v. Isaac, 456 U.S. 107, 128 (1982)). This is

profoundly related to _ political accountability. The

“formation, execution, or review of broad public policy . . .

go to the heart of representative government.” Sugarman vy.

Dougall, 413 U.S. 634, 647 (1973) (cited ‘n Gregory v.

Ashcroft, 501 U.S. 452, 462 (1991)). The direct and primary

29

political accountability reserved for the states would become

illusory, however, “[w]ere the Federal Government to take

over the regulation of entire areas of traditional state concern,

areas having nothing to do with the regulation of commercial

activities.” Lopez, 514 U.S. at 577 (Kennedy, J., and

O’Connor, J., concurring).

CONCLUSION

The federal government cannot sustain the application

of the CSA to the noncommercial, intrastate use of medicinal

marijuana under the California Compassionate Use Act.

This becomes apparent the moment the Court reflects fully

upon the Virginia Resolution and why the people of America

gave the federal government power over interstate commerce

(which was indeed one of their primary reasons for adopting

a new constitution).

The same answer also can be partly gleaned from the

“dormant” or “negative” Commerce Clause cases that

vindicate federal interests against state protectionist barriers

to the free flow of commerce. Richard A. Epstein, The

Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387,

1389 (1987). In Federalist No. 11, Hamilton remarked that

the states had “fettered, interrupted and narrowed”

commerce. The Federalist No. 11, at 90 (Alexander

Hamilton) (Clinton Rossiter ed., 1961). Under the new plan,

he continued, “[aJn unrestrained intercourse between the

states themselves will advance the trade of each, . . . [and]

[t]he veins of commerce in every part will be replenished

from a free circulation of the commodities of every part.” /d.

at 89. Justice Johnson made the same observation in his

concurrence in Gibbons: “If there was any one object riding

over every other in the adoption of the constitution, it was to

keep the commercial intercourse among the States free from

all invidious and partial restraints.” Gibbons, 22 U.S. at 231

(Johnson, J., concurring).

But the dormant Commerce Clause captures only the

federal side of the commerce power. The Virginia

Resolution in full supplies the missing analytical means to

30

vindicate state interests when the “general interests of the

union” are not implicated or the “states are not separately

incompetent” to act. When both federal and state interests:

are harmoniously honored, the original understanding is once

again revealed. And by this revelation, the modern Court

keeps faith with the arguments for the Constitution’s

ratification, which cannot be too often remembered.

Even before the Tenth Amendment was added to the

Constitution, its point was articulated by Hamilton in

Federalist No. 32: “the rule that all authorities, of which the

States are not explicitly divested in favor of the Union,

remain with them in full vigor . . . is clearly admitted by the

whole tenor . . . of the proposed Constitution.” The

Federalist No. 32, at 201 (Alexander Hamilton) (Clinton

Rossiter ed., 1961).

California remains “in full vigor” of the power to

address the individual health needs of her citizens.

Respectfully submitted.

TIMOTHY LYNCH DOUGLAS W. KMIEC*

ROBERT A. LEVY Counsel of Record

MARK K. MOLLER Caruso Chair & Professor of

THE CATO INSTITUTE Constitutional Law

1000 Massachusetts Ave., Pepperdine University

N.W. School of Law

Washington, D.C. 20001 Malibu, CA 90263

(202) 218-4600 (310) 506-4255

Counsel for Amicus Curiae

October 13, 2004