The Court has identified three broad categories that Congress may regulate under its commerce clause powers:
1. Congress may regulate the use of the channels of interstate commerce. Congress has constitutional authority to keep the channels of interstate commerce free from injurious uses.
2. Congress may regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities. (This "threat" prong in the second category seems to include to some degree the "substantial effects" test in the third category.)
3.
Congress may regulate those activities having a substantial relation to interstate commerce--those activities that substantially affect interstate commerce. (Congress may NOT use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities--BUT, if failure to regulate the activity or thing will undercut a valid regulatory program, then the regulation of the activity or thing is within Congress's power.)
Both the
Wickard v. Filburn and
U.S. v. Lopez cases were decided under the third "substantially affects" category. As noted, Congress was able to cure the constitutional infirmity found in Lopez by amending the defective statute to provide a "jurisdictional nexus" between the firearm in question and interstate commerce.
Through this third category of activities, the Supreme Court (in a 6-3 decision) also upheld the federal government's regulation of medical marijuana. See
GONZALES v. RAICH, decided June 6, 2005:
The Supreme Court wrote:Our 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. See, e.g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128-129 (1942). As we stated in Wickard, "even if appellee's activity be local and though it 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." Id., at 125.
We have never required Congress to legislate with scientific exactitude. When Congress decides that the " 'total incidence' " of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154-155 (quoting Westfall v. United States, 274 U. S. 256, 259 (1927) ("[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so")).
In this vein, we have reiterated that when " 'a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.' " E.g., Lopez, 514 U. S., at 558 (emphasis deleted) (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968)). . . .
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.
The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.28 Just as the Agricultural Adjustment Act was designed "to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses ..." and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets.
In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.
The decision means that federal anti-drug laws trump state laws that allow the use of medical marijuana, said
CNN senior legal analyst Jeffrey Toobin. Ten states have such laws.
"If medical marijuana advocates want to get their views successfully presented,
they have to go to Congress; they can't go to the states, because it's really the federal government that's in charge here," Toobin said.
Justice O'Connor filed a dissenting opinion, in which C. J. Rehnquist and J. Thomas joined as to all but Part III.
Justice O'Connor wrote:We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U. S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting).
This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U. S. 619, 635 (1993); Whalen v. Roe, 429 U. S. 589, 603, n. 30 (1977). Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering.
Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause--nestling questionable assertions of its authority into comprehensive regulatory schemes--rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U. S. 598 (2000). Accordingly I dissent.
It is important to note, however, that the COURT has never required Congress to PROVE that the regulated activity "substantially affects" interstate commerce. The Court merely requires that Congress have a "rational basis" for concluding that the regulated activity "substantially affects" interstate commerce. Note, however, that the Court has generally rejected the "costs of crime" and "national productivity" reasoning. See Lopez:
Quote:We pause to consider the implications of the Government's arguments. The Government admits, under its "costs of crime" reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. See Tr. of Oral Arg. 8-9. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.
The Court, as a whole, is extremely deferential to Congress and allows Congress to use its commerce clause powers to the fullest extent possible.
Even if Justice O'Connor and Chief Justice Rehnquist are slated to be replaced in the near future, the addition of two new justices on the high bench will not alter the "ideological" composition of the court. It is HIGHLY UNLIKELY that Wickard and its progeny will be overturned. This is especially true since our new Chief Justice, Judge Roberts, has sworn in his confirmation hearings to respect both our case precedent and our constitutional "democracy" that would require the people to resort to political processes to exert pressure on Congress to limit its own commerce clause powers.
* * *
Compare to
UNITED STATES v. MORRISON, 529 U.S. 598 (2000):
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, and in which Souter and Ginsburg, JJ., joined as to Part I-A.
In a 5 to 4 decision, the Court ruled that Section 13981 of the Violence Against Women Act of 1994 exceeded Congress's commerce clause powers:
Chief Justice Rehnquist wrote:. . . Section 13981 was part of the Violence Against Women Act of 1994, §40302, 108 Stat. 1941-1942. It states that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender." 42 U. S. C. §13981(b). To enforce that right, subsection (c) declares:
"A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate."
. . . Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.). Congress explicitly identified the sources of federal authority on which it relied in enacting §13981. It said that a "federal civil rights cause of action" is established "[p]ursuant to the affirmative power of Congress ... under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I [the COMMERCE CLAUSE] of the Constitution." 42 U. S. C. §13981(a). We address Congress' authority to enact this remedy under each of these constitutional provisions in turn.
[COMMERCE CLAUSE]
[Petitioners] seek to sustain §13981 as a regulation of activity that substantially affects interstate commerce. Given §13981's focus on gender-motivated violence wherever it occurs (rather than violence directed at the instrumentalities of interstate commerce, interstate markets, or things or persons in interstate commerce), we agree that this is the proper inquiry. . . .
. . . 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.
The second consideration that we found important in analyzing §922(q) was that the statute contained "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." Id., at 562. Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce. . . .
Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e.g., id., at 559-560, and the cases cited therein.
Like the Gun-Free School Zones Act at issue in Lopez, §13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that §13981 is sufficiently tied to interstate commerce, Congress elected to cast §13981's remedy over a wider, and more purely intrastate, body of violent crime. . . .
Accordingly, if Congress amended the Violence Against Women Act (similar to the manner in which it amended the Gun Free School Zones Act) to include the requisite jurisdictional (elemental) nexus language to connect the activity in question to interstate commerce, Congress could cure the constitutional defect.
[What I find MORE troubling is the Court's rejection of Congress's Fourteenth Amendment, Section 5, powers to justify the legislation, but that's a topic for another thread.]
In my opinion, (despite Justice Thomas's prodding),
Wickard will NEVER be overturned. See Justice Thomas's CONCURRING opinion in Morrison:
Justice Thomas wrote:The majority opinion correctly applies our decision in United States v. Lopez, 514 U. S. 549 (1995), and I join it in full. I write separately only to express my view that the very notion of a "substantial effects" test under the Commerce Clause is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce.
Again, I don't believe that the Court will ever get rid of the long-standing "substantial effects" test, so the possibility of overruling Wickard is probably NIL. In the appropriate case, however, the Court may limit Wickard's reach as it did in Lopez and Morrison by requiring a jurisdictional nexus on a case-by-case basis between the activity/thing sought to be regulated and interstate commerce.