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  • A Government of Limited Powers
  • Carl E. Schneider (bio)

Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits.

Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAA's limits because Congress lacked authority to regulate wheat grown for one's own use.

He reasoned: In our federal system, the states have authority to legislate except where the Constitution constrains them, but the federal government may legislate only where the Constitution authorizes it. The Constitution permits Congress to "regulate Commerce with foreign Nations, and among the several States" and may "make all Laws which shall be necessary and proper for carrying into Execution" its Commerce Clause powers. Mr. Filburn thought that growing and eating wheat on his land were acts "local in character" and that "their effects upon interstate commerce are at most 'indirect.'"

Diane Monson lives in California. She has been growing marijuana she takes to treat substantial medical problems. The California Compassionate Use Act of 1996 exempts from criminal liability "patients . . . who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician." However, the federal Controlled Substances Act classifies marijuana as a "Schedule I" drug. Such drugs have a "high potential for abuse" and no "accepted medical use," and it is a federal crime to manufacture, distribute, or possess them.

Diane Monson (with Angel Raich, another patient using marijuana) went to court to argue that Alberto Gonzales, the Attorney General, could not enforce the CSA against her or her doctors because Congress lacks authority to regulate the marijuana she grows for her own use. Ms. Monson argued that the Commerce Clause does not authorize Congress to "prohibit the local cultivation and use of marijuana in compliance with California law."

In 1942, Wickard v. Filburn reached the Supreme Court. The Justices agreed that the AAA was constitutional. They quoted Chief Justice Harlan Stone: "The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce . . . as to make regulation of them appropriate means to the attainment of a legitimate end." Thus, "even if appellee's activity be local and though it may not be regarded as commerce, it may still . . . be reached by Congress if it exerts a substantial economic effect on interstate commerce." Mr. Filburn's wheat affected interstate commerce because it kept him from buying somebody else's wheat. And while his crop was small, its effect, "taken together with that of many others similarly situated, is far from trivial."

On June 6 of this year, Justices decided six to three that Congress may regulate Ms. Monson's marijuana garden. Justice Stevens said for the Court that the Commerce Clause was "the Framers' response to the central problem giving rise to the Constitution it-self: the absence of any federal commerce power under the Articles of Confederation." Thus the Commerce Clause power is capacious, and "case law firmly establishes Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."

The principle of stare decisis obliges American courts to decide similar cases similarly. Raich virtually was Wickard. "Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Just as the AAA controlled the amount of wheat in interstate and foreign commerce, "a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets."

In dissent, Chief Justice Rehnquist and Justices O'Connor and Thomas invoked two recent cases that examined statutes enacted on the authority of the Commerce Clause. In 1995, United States v. Lopez held that the Gun-Free School Zones Act of 1990 exceeded Congress...


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pp. 11-12
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Archived 2012
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