# How can SCOTUS allow the feds to regulate non-interstate marijuana? **URL:** \ **Category:** Great Debates\ **Created:** [June 7, 2005, 9:09am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275 "2005-06-07T09:09:19Z")\ **Posts on this page:** 5\ **Page:** 9
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 11, 2005, 4:51am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/161 "2005-06-11T04:51:07Z")
> [@](#): > > > [@](#): > > > > Quote: > > Originally Posted by Gfactor > > your opinion about how commerce clause cases ought to be decided > > Yep, that’s correct. Which is why I said early on that reading the Commerce Clause narrowly may put things like Title VII in jeopardy. I rather like those type of laws. I think Rehnquist would agree with you. In [\*Lopez \*](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10287) he tried to import a commercial requirement into the test: > [@](#): > > The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress “[t]o regulate Commerce . . . among the several States . . . .” Which implies that the commerce clause automatically allows regulation of commercial activity. > [@](#): > > It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a [UNITED STATES v. LOPEZ, \_\_\_ U.S. \_\_\_ (1995) , 13] commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Which suggests that not all commercial transactions may be regulated because they must also substantially affect interstate commerce. But it appears to be a requirement. > [@](#): > > We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. Here, again, it appears they must both be present. While we are in here, he also says some interesting things about certainty and the Commerce Clause: > [@](#): > > Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress’ authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender “legal uncertainty.” He is saying that you can’t really get the answer by looking at the legal standards or the text. Isn’t he? > [@](#): > > The Constitution mandates this uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation. See U.S. Const., Art. I, 8. Congress has operated within this framework of legal uncertainty ever since this Court determined that it was the judiciary’s duty “to say what the law is.” Marbury v. Madison, 1 Cranch. 137, 177 (1803) (Marshall, C. J.). Any possible benefit from eliminating this “legal uncertainty” would be at the expense of the Constitution’s system of enumerated powers. Looks like he saying the interpretation of the text is uncertain. > [@](#): > > [T]he question of congressional power under the Commerce Clause "is necessarily one of degree…These are not precise formulations, and in the nature of things they cannot be. Yep. Now in [_Morrison_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-5) Rehnquist again wrote the opinion. And he picked up where he left off in _Lopez_: > [@](#): > > [A] fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case. See, e.g., id., at 551 (“The Act [does not] regulat[e] a commercial activity”). . . ("Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. . . . "), 567; see also id., at 573-574 (Kennedy, J., concurring) (stating that Lopez did not alter our “practical conception of commercial regulation” and that Congress may “regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy”), 577 (“Were 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, the boundaries between the spheres of federal and state authority would blur”), 580 (“nlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial originor consequence, but we have not yet said the commerce power may reach so far” (citation omitted)). Lopez’s review of Commerce Clause case law demonstrates that 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. See id., at 559-560. Hey, look what I found. And right where I left it. The dissent picked right up on it: > [@](#): > > This new characterization of substantial effects has no support in our cases (the self-fulfilling prophecies of Lopez aside), least of all those the majority cites. Hey, Rehnquist is planting quotes and trying to do what Brennan did in Burger King! > [@](#): > > Obviously, it would not be inconsistent with the text of the Commerce Clause itself to declare “noncommercial” primary activity beyond or presumptively beyond the scope of the commerce power. That variant of categorical approach is not, however, the sole textually permissible way of defining the scope of the Commerce Clause, and any such neat limitation would at least be suspect in the light of the final sentence of Article I, §8, authorizing Congress to make “all Laws … necessary and proper” to give effect to its enumerated powers such as commerce. While we could read the commerce power as lnot including “noncommercial” activities, that does not give effect to the necessary and proper clause. > [@](#): > > Obviously, it would not be inconsistent with the text of the Commerce Clause itself to declare “noncommercial” primary activity beyond or presumptively beyond the scope of the commerce power. That variant of categorical approach is not, however, the sole textually permissible way of defining the scope of the Commerce Clause, and any such neat limitation would at least be suspect in the light of the final sentence of Article I, §8, authorizing Congress to make “all Laws … necessary and proper” to give effect to its enumerated powers such as commerce. We have tried to balance plenary power and categorical exclusions for a long time. > [@](#): > > In the half century following the modern activation of the commerce power with passage of the Interstate Commerce Act in 1887, this Court from time to time created categorical enclaves beyond congressional reach by declaring such activities as “mining,” “production,” “manufacturing,” and union membership to be outside the definition of “commerce” and by limiting application of the effects test to “direct” rather than “indirect” commercial consequences. We tried this approach. > [@](#): > > And yet today’s decision can only be seen as a step toward recapturing the prior mistakes. Its revival of a distinction between commercial and noncommercial conduct is at odds with Wickard, which repudiated that analysis, and the enquiry into commercial purpose, first intimated by the Lopez concurrence, see Lopez, supra, at 580 (opinion of Kennedy, J.), is cousin to the intent-based analysis employed in Hammer, supra, at 271-272 but rejected for Commerce Clause purposes in Heart of Atlanta, supra, at 257 and Darby, supra, at 115. So coming into the pot case we have Rehnquist reviving the commercial/non-commercial distinction. That distinction would have supported reversal in the pot case. But Rehnquist could not convince a majority of the Court to vote with him. The majority quickly discarded the commercial/non-commercial distinction, re-establishing _Wickard_: > [@](#): > > Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/545/1.html)** > > FindLaw's searchable database of United States Supreme Court decisions since > [@](#): > > Moreover, even though Wickard was indeed a commercial farmer, the activity he was engaged in–the cultivation of wheat for home consumption–was not treated by the Court as part of his commercial farming operation. Here is an [article](http://edition.cnn.com/2005/LAW/06/08/rehnquist.legacy.ap/) noticing that Rehnquist is losing more on Federalism cases, including this one. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 11, 2005, 5:05am UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/162 "2005-06-11T05:05:11Z")
> [@RTFirefly](#): > > OK, but the Supremes, without reversing precedent, can narrow the scope of a previous Supreme Court ruling by distinguishing one case from another, and so forth. If practiced enough, it’s possible for them to distinguish a precedent almost out of existence without ever formally reversing themselves. I agree. It is possible for them to distinguish the case, or overrule it completely. See, [http://www.michbar.org/journal/article.cfm?articleID=475&volumeID=35](http://www.michbar.org/journal/article.cfm?articleID=475&volumeID=35). In fact, as I see it, they just did that to _Lopez_ and _Morrison_. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [June 11, 2005, 6:41pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/163 "2005-06-11T18:41:11Z")
> [@Bricker](#): > > I think _Wickard_ was wrong, as are the whole bunch of New Deal era Commerce Clause decisions. Amazingly, **Bricker** , we have reached a point of constitutional law upon which we disagree. I think _Wickard_ is logically unassailable, even as it seems to defy intuitive common sense. Prior to the New Deal, the court struggled for a long time trying to distinguish between interstate and intrastate activity. That turned out to be harder than it sounds, and the pre-New Deal tests were essentially unprincipled, ad hoc and arbitrary. Although we can all agree that Farmer Filburn’s wheat commonsensically isn’t interstate commerce, it’s hard to devise a test that excludes him while incorporating those things we commonsensically understand as being interstate in nature. The blame for this loophole has to be laid at the feet of the founders (although to be fair, their era didn’t have quite the cross-border economics ours does). The power to regulate interstate commerce is effectively the power to regulate anything. The only real limit is an intuitive one, and intuitive tests are spectacularly bad for judicial use. Which is why my solution is for the courts to get out of the commerce clause business entirely. Rather than give such Congressional acts the patina of judicial approval, simply say commerce clause disputes involve a nonjusticiable political question – if Congress claims an act is within the commerce power, it is. Judicial silence would require lawmakers to themselves explain to their constitutents why their acts involve interstate commerce, rather than simply saying “the courts say so.” The judiciary could stop handing down logically sound but intuitively wrong decisions like _Wickard_, preserving their own integrity in the public eye. And the results would be no different. Everyone wins. I also note in passing that it is a mistake to lump the commerce clause cases in with cases of the substantive due process sort. There is a commerce clause, and there is a necceary and proper clause, and they demand to be interpreted. Even if you disagree with this particular result, the court in this decision was not engaged in activism. Indeed, the court was reconciling two conflicting laws each reached by separate democratic consensus, and not crafting its own substantive law out of whole cloth. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [June 11, 2005, 8:51pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/164 "2005-06-11T20:51:22Z")
> [@ISiddiqui](#): > > Which is why I said early on that reading the Commerce Clause narrowly may put things like Title VII in jeopardy. I rather like those type of laws. Well, then, the honest way to support them is to advocate an amendment to the Constitution that would give Congress the power to enact them without torturing the syntax of the Commerce Clause until it confesses. ---
**Author:** ![Hazel](https://avatars.discourse-cdn.com/v4/letter/h/e56c9b/32.png) [@Hazel](https://boards.straightdope.com/u/Hazel)\ **Post date:** [June 12, 2005, 3:20pm UTC](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275/165 "2005-06-12T15:20:59Z")
> [@Steve MB](#): > > Consider that a mere decade and a half earlier, it seems to have simply not occurred to anyone to avoid all the bother of amending the Constitution by simply pulling a prohibition power out of some emanation of a penumbra of the Commerce Clause. Even in its time, the decision was radical. It’s weird. Early in the 20th Century, you have a powerful temperance movement clammering for a ban on alcohol use. Eveyone understands that the Federal govt does not have the power to prohibit alcohol use. If they want to prohibit alcohol use, the only way to do so is to ammend the constitution. So they amend the constitution. They don’t try to wiggle out of the necesity, they just buckle down and get it done. Prohibition is a complete and utter failure. Result: the amendment is repealed. Time taken to perceive and act on the failure: not much more than a decade. Just a little later in the century, govt officials decide that they want to prohibit the use of marijuana, and a bit later, various other recreational substances. (I don’t think there was any great public outcry demanding this; not sure why the pols percieved a need for this action.) But this time, they don’t get to work on passing a constitutional amendment. Either they’ve gotten mass amnesia about what the Fed govt can and can’t do, or they’ve stopped carring about the rule of law. Somehow, inconvenient aspects of the Constitution and Bill of Rights are now seen as just something to be gotten around. So, marijuana and various other substances are outlawed without ammending the constitution. This new Prohibition fails just as completely as alcohol Prohibtion did. (Should anyone have been surprised?) Result: nothing. Eighty years later, we still have this failed, futile “war on drugs” hanging around our necks like a dead albatross. Not only are the actually dangerous drugs still outlawed, but so is nearly harmless marijuana. Our criminal justice system is massivly overburdened and lives are being needlessly ruined, all in an effort to stamp out use of a recreational substance plainly less harmful than the alcohol that we re-legalized back in the early '30s. Our great-grandparents a century or so ago seem to have been smarter, more realistic, and more honest than Americans of more recent generations. [Previous page](https://boards.straightdope.com/t/how-can-scotus-allow-the-feds-to-regulate-non-interstate-marijuana/307275.md?page=8)