Amicus Curiae Brief — Gonzales v. Raich

(7) rue

AUG 12 2004

No. 03-1454

OFFICE OF THE CLERK

_—— -

In The

Supreme Court of the Anited States

¢

JOHN ASHCROFT, ATTORNEY GENERAL, et al.,

Petitioners,

V.

ANGEL McCLARY RAICH, et al., ,

Respondents.

*

On Writ Of Certiorari To The —

United States Court Of

For The Ninth Circuit

°

BRIEF OF COMMUNITY RIGHTS COUNSEL AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

+

TIMOTHY J. DOWLING

Chief Counsel

COMMUNITY RIGHTS COUNSEL

1301 Connecticut Ave., N.W.

Suite 502

Washington, D.C. 20036

(202) 296-6889

COCKLE LAW BRIEF PRIN“ING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

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

et seg., exceeds Congress’s power under the Commerce

Clause as applied to the intrastate cultivation and posses-

sion of marijuana for purported personal “medicinal” use

or to the distribution of marijuana without charge for such

use.

ii

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE ................0+ 1

Te eeccintetcensnsicesecnactasnsetsoncccsstontcecssnnwenensnecses 2

I. CONGRESS MAY REGULATE THE INTRA-

Il.

STATE CULTIVATION OR DISTRIBUTION

OF MARIJUANA BECAUSE IT SUBSTAN-

TIALLY AFFECTS INTERSTATE COM-

CONGRESS MAY REGULATE THE INTRA-

STATE CULTIVATION OR DISTRIBUTION

OF MARIJUANA AS PART OF A CLASS OF

ACTIVITY THAT SUBSTANTIALLY AF-

FECTS INTERSTATE COMMERCE. .............

A. Congress May Regulate All Marijuana

Cultivation and Distribution As a Class...

B. Congress May Regulate All Marijuana

Cultivation and Distribution As a Class

To Promote Adequate Enforcement..........

CORSC TAIN... nscosccccccccccnscccccccscccccescccccosccccesccsessscoes

12

TABLE OF AUTHORITIES

| reg

CASES

Aetna Health Inc. v. Davila, 124 S. Ct. 2488 (2004)........... 1

Brown v. Legal Found. of Wash., 538 U.S. 216

Sar csctiniclldduadiniinisittichiasliaiiniisibeenidaniitedaeschdmmintemebininabactapene 1

City of Lodi v. Fireman’s Fund Ins. Co., 538 U.S.

Sore METI Aiictendiorsisenctersbistbtisiliiascmnceiiiciasipeianapabiiiaidladineiasidbantnentd 1

Currin v. Wallace, 306 U.S. 1 (1939).................ccsccccscssesees 11

Eyl v. Ciba-Geigy Corp., 123 S. Ct. 2642 (20083)................. 1

Engine Mfrs. Ass’n v. South Coast Air Quality

Mgmt. Dist., 124 S. Ct. 1756 (2004)... seeceeeseseneneeneees 1

Fry v. United States, 421 U.S. 542 (1975)...........ccccccseeeeeeees 4

Maryland v. Wirtz, 392 U.S. 183 (1968)..................00.. 4, 8,9

Navegar, Inc. v. United States, 192 F.3d 1050 (D.C.

SR Se ciscrvipscnsscclintbennintpibiieissitbiisnaiatstimeaitatiauamindacninie 9

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)................. 1

Perez v. United States, 402 U.S. 146 (1971)...........+.+ 7, 8,9

Shreveport Rate Cases, 234 U.S. 342 (1914)............... 10, 11

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l

Planning Agency, 535 U.S. 302 (2002) ...............ceecceeeeeees 1

United States v. Cortes, 299 F.3d 1030 (9th Cir. ;

2002), cert. denied, 537 U.S. 1224 (2008).................000005 9

United States v. Holston, 343 F.3d 83 (2d Cir. 2003).......... g

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

United States v. Morrison, 529 U.S. 598 (2000).. 2, 4, 5, 6, 9

United States v. Olin, 107 F.3d 1506 (11th Cir.

TD ciivescdcncdnicineidhendiatepishaieirinddiaceiedanelitaadeaitinediiiiast iad 9

p,

iv

TABLE OF AUTHORITIES -— Continued

Page

United States v. Turner, 301 F.3d 541 (7th Cir.

2002), cert. denied, 537 U.S. 1077 (2002).................eeeeees 9

Wickard v. Filburn, 317 U.S. 111 (1942)................. 3, 4, 5, 6

STATUTES

ees Fee EEE cciiniccerchintiiscinnsisinnciincestenisaiatnigaéaniiies 7

a as Be checiisstasticinsnnscinicnnititcsicsniviinintsatintintaninniaes 11

a Re Be ccitruticehtsitiinsinianinstigbdetnidinnecicioesnviaiaiaieniaainaiii 11

A , Shiisccsiisicsbeisitsscihcconiiiciinneipiaiaaiindinaiiadanis 11

1

INTEREST OF THE AMICUS CURIAE'

Community Ri,hts Counsel (CRC) is a nonprofit,

public interest law firm that assists government officials

in defending against constitutional challenges to federal,

State, and local protections, with a particular emphasis on

challenges under the Takings Clause, Commerce Clause,

and Supremacy Clause.

Since its founding in 1997, CRC has filed amicus

briefs with this Court in support of many federal, State,

and local government laws, including regional protections

for Lake Tahoe, Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Regi Planning Agency, 535 U.S. 302 (2002), State pro-

grams to fund legal services for the poor, Brown v. Legal

Found. of Wash., 538 U.S. 216 (2003), State remedies

against negligent health maintenance organizations,

Aetna Health Inc. v. Davila, 124 S. Ct. 2488 (2004), re-

gional initiatives to promote clean air, Engine Mfrs. Ass’n

v. South Coast Air Quality Mgmt. Dist., 124 S. Ct. 1756

(2004), State wetland protections, Palazzolo v. Rhode

Island, 533 U.S. 606 (2001), State common law remedies

against negligent pesticide manufaciurers, Eyl v. Ciba-

Geigy Corp., 123 S. Ct. 2642 (2003), and municipal re-

quirements for addressing toxic waste contamination, City

of Lodi v. Fireman’s Fund Ins. Co., 538 U.S. 961 (2003).

CRC also has represented scores of governmental amici in

federal and State appellate courts across the country.

* Counsel for the parties did not author this brief in whole or in

part. No person or entity other than the amicus made a monetary

contribution to the preparation or submission of this brief. The parties

have consented to the filing of this brief, and letters of consent have

been filed with the Clerk.

2

Although we oppose preemption of State law under

the Supremacy Clause absent a clear statement of intent

to preempt, Congress clearly has invoked its Commerce

Clause authority to prohibit the cultivation and distribu-

tion of marijuana for medical use. CRC has a strong

interest in ensuring stability in Commerce Clause juris-

prudence and legislative flexibility ‘to address national

concerns embraced by Congress’s enumerated powers.

+

ARGUMENT

We begin with a disclaimer. While we have sympathy

for those who turn to marijuana for relief from serious

illness and suffering, we take no position on the policy

questions posed by medical marijuana use. The question

raised by this case is: Who decides? The acceptability of

cultivation and distribution of marijuana for medical use

should be settled through the political process by those

accountable to the voters, not by the federal courts

through the unduly narrow reading of the Commerce

Clause adopted by the Ninth Circuit.

As recent Commerce Clause cases make clear, the

Court polices the “outer limits” of Congress’s authority,

United States v. Lopez, 514 U.S. 549, 566 (1995), but at the

same time it places a high value on continued stability in

this area_of the law. In both Lopez and United States v.

Morrison, 529 U.S. 598 (2000), the Court was careful to

preserve longstanding Commerce Clause precedent so as not

to disrupt the legitimate expectations of citizens who have

come to rely on basic federal protections. Lopez, 514 U.S. at

555-68 (analyzing and applying post-1937 Commerce Clause

precedent); Morrison, 529 U.S. at 607-19 (same).

3

As stressed by Justices Kennedy and O’Connor, courts

should continue to exercise “great restraint” in reviewing

Commerce Clause enactments. Lopez, 514 U.S. at 568

(Kennedy, J., with O’Connor, J. concurring). This judicial

restraint reflects the simple reality that “the Court as an

institution and the legal system as a whole have an

immense stake in the stability of our Commerce Clause

jurisprudence as it has evolved to this point.” Jd. at 574.

We show below that well-established precedents pro-

vide two straightforward rules of law that compel reversal:

1) Congress may regulate economic activity such as intra-

state marijuana cultivation or distribution that, when

aggregated with similar economic activity, has a substan-

tial effect on interstate commerce; and 2) where Congress

regulates a unified class of activity that substantially

affects interstate commerce such as drug traffic, a court

should not excise out individual applications of the federal

program to intrastate activity, especially where the regula-

tion of intrastate activity is necessary to control interstate

activity effectively.

I. CONGRESS MAY REGULATE THE INTRA-

STATE CULTIVATION OR DISTRIBUTION OF

MARIJUANA BECAUSE IT SUBSTANTIALLY

AFFECTS INTERSTATE COMMERCE.

This case is controlled by Wickard v. Filburn, 317 U.S.

111 (1942). In Wickard, the central issue was whether the

federal government could “extend[] federal regulation to

[wheat] production not intended in any part for commerce

but wholly for consumption on [Filburn’s] farm.” Jd. at 118.

_ It was immaterial to the Court that Filburn’s activity

involved only wheat cultivation and consumption, as

opposed to sale or trade. Jd. at 120 (“[Qjuestions of the

4

power of Congress are not to be decided by reference to

any formula which would give controlling force to nomen-

clature such as ‘production’ and ‘indirect’ and foreclose

consideration of the actual effects of the activity in ques-

tion upon interstate commerce.”); id. at 125 (although

Filburn’s wheat cultivation “may not be regarded as

commerce, it-may still, whatever its nature, be reached by

Congress if it exerts a substantial economic. effect on

interstate commerce.”).

Likewise, it made no difference to the Wickard Court

that Filburn’s cultivation and consumption by itself had

only a miniscule effect on interstate commerce. Congress

could regulate that cultivation because it could rationally

conclude that, when aggregated with all similar economic

activity, it had a substantial effect: “That appellee’s own

contribution to the demand for wheat may be trivial by

itself is not enough to remove him from the scope of

federal regulation where, as here, his contribution, taken

together with that of many others similarly situated, is far

from trivial.” Jd. at 127-28.

This aggregation principle remains a-cornerstone of

Commerce Clause jurisprudence. E.g., Lopez, 514 U.S. at

558 (“‘[W]here a general regulatory statute bears a sub-

stantial relation to commerce, the de minimis character of

individual instances arising under that statute is of no

consequence.’”) (quoting Maryland v. Wirtz, 392 U.S. 183,

196 n. 27 (1968)); Fry v. United States, 421 U.S. 542, 547

(1975) (same). To be sure, the Court has raised the possi-

bility of limiting aggregation to economic activity. See

Morrison, 529 U.S. at 613 (“[Wle need not adopt a cate-

gorical rule against aggregating the effects of any non-

economic activity in order to decide these cases.”). But there

can be no doubt that the aggregation principle applies to

5

the production and distribution of a valuable commodity

_ such as marijuana, activities that are plainly economic.

When viewed in the aggregate, the intrastate cultiva-

tion or distribution of marijuana substantially affects

interstate commerce, for much the same reason as the local

cultivation and consumption of wheat does. The Wickard

Court concluded that homegrown wheat could substan-

tially affect interstate commerce because it could displace

wheat that would otherwise be purchased in interstate

commerce. Wickard, 317 U.S. at 128 (homegrown wheat

“supplies a need of the man who grew it which would

otherwise be reflected by purchases in the open market”).

In the same way, locally grown marijuana expands the

total national supply of the drug and substantially affects

marijuana in interstate trade by freeing up an equivalent

amount for use by others. Congress rationally could have

concluded that, in the aggregate, unregulated homegrown

marijuana would substantially affect the national market

for this substance, and that banning local cultivation and

distribution will significantly reduce the overall supply.

Lopez and Morrison are easily distinguished from the

case at hand because the federal programs in those cases

had nothing to do with any sort of economic enterprise.

Lopez involved federal regulation of the mere possession of

guns near schools, which the Court concluded “is in no

sense an economic activity that might, through repetition

elsewhere, substantially affect any sort of interstate

commerce.” Lopez, 514 U.S. at 567; accord id. at 580

(Kennedy, J., joined by O’Connor, J., concurring)

(“[Nleither the purposes nor the design of the statute has

an evident commercial nexus.”). Indeed, given that the gun

possession ban applied only within 1000 feet of a school,

the Court emphasized that the ban was “not an essential

6

part of a larger regulation of economic activity, in which

the regulatory scheme would be undercut unless the

intrastate activity were regulated.” Jd. at 561. Similarly,

the regulated activity in Morrison, gender-related violence,

is “not, in any sense of the phrase, economic activity.”

Morrison, 529 U.S. at 613. The Morrison Court reaffirmed

that the noneconomic nature of the regulated conduct was

“central” to both Morrison and Lopez. Id. at 610.

In contrast, the Controlled Substances Act targets the

cultivation and distribution of a valuable commodity,

activities that are indisputably economic. That the distri-

bution might occur for free is of no consequence, just as

the absence of any sale was of no consequence in Wickard,

because even the free distribution of a commodity still

constitutes economic activity and thus should be subject to

aggregation. See Lopez, 514 U.S. at 556, 559-60 (describing

the “production and consumption of homegrown wheat” in

Wickard as economic activity even “‘though it may not be

regarded as commerce’ ”) (quoting Wickard).

The federal controls at issue here raise none of the

concerns that troubled the Court in Lopez and Morrison.

For example, the Court viewed the government’s position

in those cases — particularly its proffered chain of causa-

tion between the regulated activity and interstate com-

merce — as so fatally attenuated as to threaten the

elimination of all limits on federal power. See Lopez, 514

U.S. at 564 (“lI)f we were to accept the Government’s

arguments, we are hard pressed to posit any activity by an

indiyidual that Congress is without power to regulate.”);

Morrison, 529 U.S. at 615 (“Congress’ findings are sub-

stantially weakened by the fact that they rely so heavily

on a method of reasoning that we have already rejected as

7

unworkable if we are to maintain the Constitution’s

enumeration of powers.”).

In contrast, the findings supporting the Controlled

Substances Act are direct and commonsensical, rooted in

the eminently reasonable notion that law enforcement

authorities cannot distinguish between drugs based on

whether they have traveled intrastate or interstate, and

that locally produced drugs add to the overall national

supply in a harmful way. 21 U.S.C. §§ 801(3)-(6). They do

not “pile inference upon inference in a manner that would

bid fair to convert congressional authority under the

“ommerce Clause to a general police power.” Lopez, 514

U.S. at 567. Rather, they suggest only the reasonable

conclusion that when Congress seeks to control interstate

traffic in a particular commodity, it may regulate the

intrastate cultivation or distribution of that commodity

where it is infeasible to distinguish between the two, and

where intrastate production and distribution substantially

affect interstate traffic.

II. CONGRESS MAY REGULATE THE INTRA-

STATE CULTIVATION OR DISTRIBUTION OF

MARIJUANA AS PART OF A CLASS OF AC-

TIVITY THAT SUBSTANTIALLY AFFECTS

INTERSTATE COMMERCE.

A. Congress May Regulate All Marijuana

Cultivation and Distribution As a Class.

A second line of Commerce Clause cases provides

additional support for petitioners by authorizing Congress

to address an entire “class of activity” without establishing

exceptions for individual intrastate applications. In Perez

v. United States, 402 U.S. 146 (1971), the Court upheld a

8

criminal statute prohibiting extortionate credit transac-

tions even though the law did not require any showing by

the prosecution that the transaction resulted in the

interstate movement of goods, involved the use of the

facilities of interstate commerce, or affected interstate

commerce. Rather, the Perez Court stressed that Congress

could rationally conclude that extortion as a class of

activity affects interstate commerce. Jd. at 154-55. The

Court could not have been clearer: “Where the class of

activities is regulated and that class is within the reach of

federal power, the courts have no power ‘to excise, as

trivial, individual instances’ of the class.” Id. at 154

(quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)).

The Perez Court held that Congress rationally could

conclude that loan sharking provides organized crime with

a lucrative source of revenue, allows organized crime to

launder money obtained through illegal gambling and

narcotics rackets, and leads to the takeover of legitimate

businesses. Jd. at 155-57. Because Congress had authority

to regulate the overall class of activity that comprises

extortionate credit transactions, it made no difference

whether the particular extortion carried out by Perez

affected interstate commerce.

The Court also used this “class of activity” analysis in

Wirtz to uphold the application of federal wage and hour

controls on employees of hospitals, schools, and similar

enterprises, even though the employees had no direct

connection to interstate commerce. Wirtz, 392 U.S. at 193.

The Wirtz Court emphasized that when Congress exercises

its power to declare that an entire class of activity sub-

stantially affects commerce, “[t]he only question for the

courts is then whether the class is ‘within the reach of the

federal power.’” Jd. at 192 (citation omitted).

Ee Le Te TL a ae TT CE aE SA TED. eT I EI OE ITS

9

Since Lopez, federal courts have continued to rely on

the Perez “class of activity” doctrine to sustain a variety of

federal laws.” Because Congress could rationally conclude

that the cultivation and distribution of marijuana as a

class of activity substantially affects interstate commerce,

it may regulate the entire class, and courts should not

e: cise individual instances of intrastate activity.

To be sure, Congress should not be allowed to circum-

vent established precedent and regulate activity that falls

outside its constitutional authority through the simple

expedient of attaching federal controls to otherwise permis-

sible regulation. For example, Congress could not resurrect

the provisions struck down in Lopez and Morrison by

* E.g., United States v. Holston, 343 F.3d 83, 90-91 (2d Cir. 2003)

(upholding conviction under federal child pornography law, notwith-

standing failure to prove defendant intended to sell it, because when

Congress regulates a class of activities that substantially affect

interstate commerce, “[t]he government need not demonstrate a nexus

to interstate commerce in every prosecution”); United States v. Turner,

301 F.3d 541, 547-48 (7th Cir. 2002) (upholding conviction under federal

law that prohibits employees from embezzling from insurance com-

panies even if defendant’s actions did not affect interstate commerce,

because “we look to the ‘class of activities’ and determine their ‘total

incidence’ on interstate commerce”) (quoting Perez and Wirtz), cert.

denied, 537 U.S. 1077 (2002); United States v. Cortes, 299 F.3d 1030,

1036 (9th Cir. 2002) (upholding application of federal carjacking law

because carjacking as a class of activity affects interstate commerce,

regardless of whether a particular instance has a trivial effect), cert.

denied, 537 U.S. 1224 (2003); Navegar, Inc. v. United States, 192 F.3d

1050, 1061 n.7 (D.C. Cir. 1999) (Congress may ban intrastate possession

of semiautomati: assault weapons as part of a broad prohibition on any

manufacture, transfer, or possession because the class of activity affects

interstate commerce, citing Perez); United States v. Olin, 107 F.3d 1506,

1509-11 (11th Cir. 1997) (upholding application of federal toxic waste

cleanup requirements, notwithstanding absence of evidence that waste

caused off-site damage, because the class of regulated activity substan-

tially affects interstate commerce).

19

reenacting them as part of an interstate transportation

bill and deeming the resulting jumble of unrelated provi-

sions a “class” of activity. But where Congress addresses a

rationally unified class of activity that substantially

affects interstate commerce, such as drug traffic, long-

standing precedent precludes the courts from redacting

individual intrastate applications out of the federal pro-

gram.

B. Congress May Regulate All Marijuana

Cultivation and Distribution As a Class To

Promote Adequate Enforcement.

The “class of activity” line of authority applies with

particular force where regulation of the entire class is

necessary to ensure adequate enforcement. The Court long

has recognized that “where the interstate and intrastate

aspects of commerce were so mingled together that full

regulation of interstate commerce required incidental

regulation of intrastate commerce, the Commerce Clause

authorized such regulation.” Lopez, 514 U.S. at 554 (citing

Shreveport Rate Cases, 234 U.S. 342 (1914)). As noted

above, the Lopez Court stressed that the limited gun ban

before it, which applied only within 1000 feet of schools,

was “not an essential part of a larger regulation of eco-

nomic activity, in which the regulatory scheme would be

undercut unless the intrastate activity were regulated.”

Lopez, 514 U.S. at 561. The Shreveport Rate Cases, in

turn, discuss several other cases sustaining congressional

regulation of intrastate activity where necessary to control

interstate commerce. See Shreveport Rate Cases, 234 U.S.

at 352-53.

Here, Congress reasonably found that the regulation

of the intrastate incidents of drug traffic is “essential” to

11

the effective control of interstate drug trade. 21 U.S.C.

§ 801(6). Although “Congress normally is not required to

make formal findings” supporting its assertion of Com-

merce Clause authority, Lopez, 514 U.S. at 562, the Con-

trolled Substances Act contains extensive congressional

findings on how controlled substances produced or distrib-

uted intrastate are indistinguishable from those in inter-

state commerce and thus, if left unregulated, would

undermine law enforcement efforts to control interstate

drug trade. Specifically, Congress found that “[c]ontrolled

substances manufactured and distributed intrastate

cannot be differentiated from controlled substances manu-

factured and distributed interstate. Thus, it is not feasible

to distinguish, in terms of controls, between controlled

substances manufactured and distributed interstate and

controlled substances manufactured and distributed

intrastate.” 21 U.S.C. § 801(5). Congress also reasonably

found that local manufacture and distribution of these

fungible products can easily lead to interstate transport.

Id. at § 801(4). As a result, “[flederal control of the intra-

state incidents of the traffic in controlled substances is

essential to the effective control of the interstate incidents

of such traffic.” Jd. § 801(6) (emphasis added).

The Court repeatedly has relied on the inability to

distinguish intrastate from interstate activity to uphold

federal laws that regulate both together. See, e.g., Currin

v. Wallace, 306 U.S. 1, 11 (1939) (Congress may regulate

intrastate and interstate transactions in the tobacco

market where transactions were conducted “in a manner

which made it necessary, if the congressional rule were to

be applied, to make it govern all the tobacco thus offered

for sale”); Shreveport Rate Cases, 234 U.S. at 351-52

(“Wherever the interstate and intrastate transactions of

12

carriers are so related that the government of the one

involves the control of the other, it is Congress, and not the

state, that is entitled to prescribe the final and dominant

rule.”).

The use of marijuana for medical, as opposed to

recreational, reasons does not change the analysis. Creat-

ing an exception for medical use could undermine en-

forcement efforts by imposing an often difficult burden on

prosecutors of establishing the violator’s subjective moti-

vation and intent beyond a reasonable doubt. Given that

marijuana used in response to medical ailments is not

readily distinguishable from marijuana used for other

reasons, Congress rationally concluded that the control of

all use is necessary to address the national market for

controlled substances.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

TIMOTHY J. DOWLING

Chief Counsel

COMMUNITY RIGHTS COUNSEL

1301 Connecticut Ave., N.W.

Suite 502

Washington, D.C. 20036

(202) 296-6889

August 2004