# Amicus Curiae Brief — Gonzales v. Raich

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0754%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1

## Text

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Se at are
No. 03-1454 1 3 204

ee
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0754%3A13. Public record. Not legal advice.