Sheridan: Con-Law

WICKARD, VAWA, LOPEZ, RAICH

You think you have trouble understanding the limits of Congressional power under the Commerce Clause?

A conlawprof wondered whether under Commerce Clause (Art. I, Sec. 8, Cl. 3) doctrine, which is defined by:

• Wickard (1943) (growing wheat for use on the farm -- e.g. feeding livestock, baking bread --in violation of gov't regs has a substantial effect on interstate commerce even if not sold, thus the regs are not unconstitutional as beyond Congress's delegated powers.
  

• Lopez  (1995) (school-guns not having substantial effect on interstate commerce even if threat of violence interferes with education),

• Morrison (VAWA) (2000) (violence against women on campus not having an effect on interstate commerce despite fear of travel it may inspire),

• Raich (2005) (medical Mj is subject to congressional power to criminalize even if home grown and used because Mj laws are part of a larger regulatory scheme that Congress clearly has power to control, i.e. trafficking in drugs across state lines and international borders.

Could Congress lawfully intervene in the death of the late Ms.Schiavo under the commerce power on the ground that medical care could be argued to have some out of state sources, hence inter-state origins, such as travel of patients and doctors, and importation of medical supplies, equipment, and medicine from all over. 

Suppose patients come from all over the world to famous medical institutions for specialized care; isn't that interstate and foreign commerce? 

Suppose they were coming here seeking final care, palliative care, hospice care, etc., i.e. to die.  Couldn't Congress regulate that? 

What about Ms. Schiavo, who remained in her state of residence for years before she died. 

If Congress could regulate this local activity, then why not abortions, or people who travel across state lines to have an abortion?

One professor offered this [the bracketed changes and additions are mine]::

Lopez and Morrison both purport to rest on an economic/noneconomic distinction.

Congress can't regulate purely local noneconomic conduct meaning ["even if"] it has a substantial effect on commerce, but it can regulate purely local economic conduct if it has such an effect [such as the wheat in Wickard].

That distinction might not be a coherent one -- I tend to agree with Justice Souter that it's not -- but it is the distinction on which Chief Justice Rehnquist relied in his opinions for the Court in those cases. 

So the difference between public education [Lopez] and medical care [Raich] would be that the latter is economic while the former isn't.  Seems plausible enough to me, and if I believed in the distinction the way Lopez and Morrison say they do I think I'd buy it.   [sb]

Other comments appear below.

 

RAICH V. ASHCROFT; JACOBY BOSTON-GLOBE

Columnist Jeff Jacoby of the Boston-Globe makes a point that I emphasize: 

When one branch of government is in a urinating contest with another, Constitutional Law is about power, not justice.

And in Raich v. Ashcroft, sub judice as we speak, the winnah is?!

(a)    The State of California with it's medical marijuana exception to the federal drug-Prohibition laws?

(b)    Angel Raich, as a matter of individual liberty?

(c)    Congress, as a matter of its Commerce  Power, under Wickard v. Filburn?

(d)      None of the above.

(e)      The United States Supreme Court?  Just a little bit higher on the Hill than Congress...

See Mr. Jacoby's article, below, and draw your own conclusions.

	THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

JEFF JACOBY Medical marijuana: the real stakes By Jeff Jacoby, Globe Columnist  |  December 9, 2004 ASHCROFT v. Raich, the Supreme Court's medical marijuana case, isn't really about medical marijuana. It's about power -- the power of Congress to exert control, and the power of the Constitution to rein Congress in. The named plaintiff in this case is Angel McClary Raich, a California mother of two afflicted with tumors in her brain and uterus, asthma, severe weight loss, and endometriosis. To ease her symptoms, doctors put her on dozens of standard medications. When none of them helped, they prescribed marijuana. That did help -- so much so that Raich, who had been confined to a wheelchair, was able to walk. Raich's marijuana was supplied to her for free from two donors who grew it in California, using only California soil, water, and supplies. Under the state's Compassionate Use Act of 1996, which exempts the use of marijuana under a doctor's supervision from criminal sanction, all of this was perfectly legal. But under the federal Controlled Substances Act, the possession of marijuana for any reason is illegal. The question is which law should prevail in this case: state or federal? Normally that wouldn't be an issue. Under the Constitution, a valid exercise of federal power trumps any conflicting state law. But is the application of the federal drug law to Raich a valid exercise of federal power? Americans often forget that the federal government was never intended to have limitless authority. Unlike the states, which have a broad "police power" to regulate public health, safety, and welfare, the national government has only the powers granted to it by the Constitution. Where does the Constitution empower Congress to bar pain-wracked patients from using the marijuana their doctors say they need? According to the Bush administration, it says it in the Commerce Clause, which authorizes Congress to "regulate commerce . . . among the several states." And it is true that those words have long been treated as a broad grant of power allowing Congress to control almost anything it chooses. The Supreme Court's most expansive reading of the Commerce Clause came in Wickard v. Filburn, a unanimous 1942 decision about a farmer who grew more wheat on his farm than was allowed under federal law. Roscoe Filburn argued that his excess wheat was none of Washington's business, since it all remained on his farm -- some of it he ground into flour, some he fed to livestock, and some he planted the following year. None of it entered interstate commerce, so what right did Congress have to penalize it? But a unanimous Supreme Court ruled against Filburn. It held that his 239 excess bushels of wheat affected the national wheat market whether he sold it or not, since wheat he produced for his own use was wheat he didn't have to buy elsewhere. If other farmers did the same thing, demand for wheat -- and its price -- would fall. That ruling threw the door open to virtually unbridled congressional activism. After all, if wheat that never left the farm it grew on was tied to "interstate commerce" and therefore subject to federal control, what wasn't? Not surprisingly, the years since Wickard have seen a vast expansion of federal authority. Still, the Supreme Court has never actually held that congressional power under the Commerce Clause is unlimited. Twice in the past 10 years, it has struck down laws that could not be justified as commerce-related even under Wickard's hyperloose standard. But if the government gets its way in this case, the court really will have remade the Commerce Clause into a license to regulate anything. For unlike Filburn -- who was, after all, engaged in the business of running a farm and selling grain -- Raich is engaged in no commercial or economic activity of any kind. She is not buying or selling a thing. The marijuana she uses is not displacing any other marijuana. But that point seemed lost on the court during last week's oral argument. "It looks like Wickard to me," Justice Antonin Scalia said. "I always used to laugh at Wickard, but that's what Wickard says." Well, if Wickard says that Congress can ban or penalize Angel Raich's marijuana -- noncommercial, medically necessary, locally grown, and legal under state law -- then Congress can reach absolutely any activity at all. When I was a law student in the 1980s, I didn't laugh at Wickard, I was appalled by it. If Ashcroft v. Raich is decided for the government, future law students will have an even more appalling case to study. Jeff Jacoby's e-mail address is [email protected].

  © Copyright   2004 The New York Times Company

CHANNELS

Big Muddy: An exam-type question, answered by several Con-law professors.

A number of Con-law professors participate in a listserv, an email service by which members or guests can post a question and elicit comments. The following query was posted by a political science professor:

We’re discussing Gibbons v. Ogden. The student asked whether Congress could regulate goods that started in Duluth, Minnesota, came down the Mississippi River, and disembarked in Winona, Minnesota. No other state was directly involved, but would the navigation be enough to translate this into “interstate” commerce? Any help would be greatly appreciated.

Leaving off the full names of the other professors, quite distinguished, I might add, here are the four responses in the order of posting:

1. I think this would be covered by the Shreveport Rate cases in the 1920's (I believe), where the ICC was given jurisdiction over interstate rates because of their potential effect on interstate commerce.

2. We're taught, I believe in U.S v. Morrison [Lopez, actually, but with the later Morrison], that Congress has the power under the Commerce Clause to regulate three things: channels of, instrumentalities of, and activity having a substantial effect on, interstate or foreign commerce, and with the Indian Tribes.

I see the river as a literal channel of interstate commerce. Presumably Congress has the power to prohibit fraudulent transactions afloat on the river, just as it does those that use the mails and the wires.

The example hypothesizes a one-state, apparently intrastate transaction, however suppose the buyer (or seller) happens to be an Indian tribe. Or that the recipient intends to forward the goods across a state line or to another nation following the next step in either production or distribution. I'm reaching to cover the three bases in the text granting Congress power over commerce with foreign nations, among the foreign states and the Indian tribes, obviously. Art. I, Sec, 8, Cl. 3.

In short, under the modern (since 1937) fact-based approach, instead of the old label-based approach (local vs. non-local, direct vs. indirect, production vs. distribution), it seems that more facts are needed before one can say that a particular transaction certainly does or does not constitute interstate commerce. Unless, of course, it takes a ride down that big interstate channel. Or, as Sandy pointed out, the Shreveport Rate cases control because of potential effect.

Which raises another question. If a local artisan, a maker of, say handicrafts (wood carvings, local wood) for sale at local fairs within the state, puts his product aboard his van and drives along Interstate 80, the big federal highway that crosses the country, then exits the highway within the state in order to reach the fair, has he thereby entered the stream of interstate commerce by his choice of national vs. local roads? Seems a bit far-fetched to me but I-80 would seem to be a channel of interstate commerce, just as the river.

The underlying question is whether Congress, if it wished, could use the interstate nature of the river and the federal highway as jurisdictional hooks or bases on which to assert federal power for criminal or commercial regulatory purposes. Mail and wire fraud, river and highway fraud... My [rs] guess is that it could. Has it?

3. The commerce cases are [a] wonderful tool to get students to watch the Court grapple with various rules and their unintended consequences. Sandy is right that the Shreveport case probably most closely mirrors your facts, but it was built on a number of attempts to make good on CJ Marshall's pledge that there WERE things that MUST be left wholly to the states in Gibbons ("The completely internal commerce of a State, then, may be considered as reserved for the State itself."

US v. EC Knight (1895) gives us the direct / indirect test .... if commercial activity wholly within one state has what the Court determines to be direct effects on interstate commerce, then, the Court rules, Congress may regulate such activity. (In EC Knight, of course, the Court says the effects are no more than indirect; that there is a distinction between manufacture and commerce and that Congress may not regulate the sugar monopoly in question.)

1905 focuses us again on the EFFECT upon commerce ... and allows the government to regulate pricing in stockyards wholly within one place, arguing that sales are a part of commerce and have direct effects on interstate commerce (Swift & Co. v. US)

In Southern Rail v. US (1911) the Court says feds can regulate inside a state if there is "a real or substantial relation or connection" between what is required by the federal rule and "the safety of interstate commerce and of those who are employed in its movement"

Next comes the Shreveport case -- Houston East & West Texas Railway v. US, 1913, -- where as Sandy notes, the Court allows the feds to regulate rates set within Texas for products shipped exclusively within Texas (since doing so allowed Texas to undercut the federally-set rates for those who wanted to ship through the geographically closer terminus in Shreveport, Louisiana) ... The congressional authority to regulate extends to all matters having "such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance."

A coda to this line comes in Stafford v. Wallace (1922) where the Court, in an opinion by C.J. Taft, rules that Congress may control prices in the stockyards even where those stockyards are wholly contained within one state. "The stockyards," he rules, " are but a throat through which the current [of commerce] flows, and the transactions which occur therein are only incident to this current from the West to the East, and from one state to another."

In short, even in the era when the commerce clause was really up for grabs, the answer in the Minnesota case would likely have rested on the degree to which a link could be made between the thing being regulated and its link to interstate commerce. That the issue involves the Mississippi, one of America's superhighways of commerce then and now would seem to make this an easy case. If Congress chooses to regulate, the Commerce Clause provides an easy way to go ... with a pretty solid provenance.

In the end, it's true Marshall said that completely internal commerce could be left to a state ... but the expansion of the national economy has consistently shrunk the universe of things that are truly, completely internal to a state ... leaving the states, really, with little more than Marshall's own ultimate promise in Gibbons: The real protection is NOT in the law or the courts, but in politics:

"The wisdom and the discretion of Congress, their identity with the people and the influence which their constituents possess at elections, are, in this, as in many other instances ... the sole restraints on which they [the states] have relied to secure them from [the national government's] abuse." (Marshall in Gibbons).

4. This is not an entirely fair response, but I grew up on the Mississippi and my Dad loaded barges on the river. Plainly Congress can regulate what happens on the river, under the commerce power or the admiralty power. Surely Congress can regulate what is shipped on the river while it is there, or prohibit some items from being shipped on the river at all. The real question is whether it can use shipment on the river as a hook to continue regulating the shipped goods after they leave the river. I would have said clearly yes before Lopez; now I'm not sure. But Lopez seems to affirm the use of jurisdictional hooks to tie transactions to commerce, and shipment on the river ought to be one.

If it matters for purposes of increasing the technical hook, it is nearly certain that goods shipped any distance on a boundary river will cross back and forth across the state line. The boundary is the main channel between some pairs of states, the midpoint between others, but the channel will usually cross back and forth across the midpoint. Kentucky's boundary is the highwater mark on the north side of the Ohio, so no criss crossing of state lines there.

Most of Minnesota's part of the Mississippi is within the state, but it does mark the Minnesota-Wisconsin boundary in its lower reaches. Duluth is a different story. The water route from Duluth to Winona is across Lake Superior, through the Soo Canal, down the length of Lake Michigan, through the canal to the Illinois, down the Illinois to where it meets the Mississippi just north of St. Louis, and back up the Mississippi to Winona. A journey of more than 1000 miles, and definitely in interstate commerce. But still I suppose raising the question after Lopez whether having once traveled in interstate commerce is enough to support continued regulation.

5. Many thanks to those who responded - my mind must have been stuck back in 1821 or so. Post-Shreveport and post-1937, yes, I can see how the question would be answered differently. Bob Sheridan also brings up food for thought (and maybe a hypo exam question) about the interstate highway system. Anyway, thanks again.

***

What does this show?

Well, one of the things it shows is that Con-law principles are viewed from different perspectives by different experienced minds and are thus subject to different interpretations. Reminds me of a remark from a law professor of mine, commenting on the notion of a colleague that seemed a little confusing:

"He's a little confused, I think...but on a higher level, of course."

Ba-dum!

I hope you enjoyed reviewing this exercise in Con-law noodling.