Constitutional Law I, Pages 189–197

Gonzales v. Raich

Supreme Court of the United States, 2005


California passed a law allowing the use of medical marijuana, in violation of the federal Controlled Substances Act. After federal agents seized plaintiff's marijuana, she and the other plaintiffs brought suit to enjoin enforcement of the act to the extent that it prevents them from possessing marijuana for personal medical use on the ground that Congress had not authority to regulate the intrastate, noncommercial cultivation and possession of it.

Procedural History:

  • District court denied a preliminary injunction.

  • The Ninth Circuit reversed.


Does the power to regulate interstate commerce include the power the power to prohibit the local cultivation and use of marijuana?


Like allowing wheat in Wickard to be grown for one's personal use would have a substantial influence on interstate commerce, so one could have a "rational basis" for concluding that the same logic applies to marijuana, which is all that is needed now. Unlike in other cases the plaintiffs cite, the activities regulated by the Controlled Substances Act are quintessentially economic, as it regulates the production, distribution, and consumption of commodities with an established and lucrative interstate market, which is the definition of "economic."

The fact that this is for a medical use cannot be a distinguishing factor here. If regulating crops for medical personal use is outside Congress's authority, so would be regulating crops for other personal uses. Allowing marijuana for personal use would affect interstate demand still and undermine Congress's intention with this law.

The fact that there is a contrary state law also cannot distinguish it, as the Supremacy Clause provides that if there is any conflict between federal and state law, federal law shall prevail.


Yes, the power to regulate interstate commerce includes the power the power to prohibit the local cultivation and use of marijuana. Vacated and remanded.

Concurring Opinion:

Scalia: The Controlled Substances Act prohibits almost all intrastate activities related to Schedule I substances whether economic or not. Possession may be non-economic, but prohibiting it is an appropriate means of achieving legitimate end of eradicating Schedule I substances form interstate commerce. One cannot tell whether the substance was manufactured in or out of state, but it hardly makes sense to prohibit only one of them anyway.

Dissenting Opinions:

  • O'Connor: States have their own sovereign police powers to define their own criminal laws to protect their citizens. California here has come to its own conclusion about whether marijuana should be allowed in its state in compliance with this power. The Controlled Substances Act extinguishes that experiment without any proof that it has an effect on interstate commerce.

    The majority encourages Congress to makes acts as broad as possible so that its pieces can fall under the power of the Commerce Clause as being essential, when they would be unconstitutional on their own. This makes the constitutionality of federal regulation depend on formalistic distinctions and may mostly eliminate the notion of enumerated powers.

    While cases do not have to be reviewed only in the scope of the case at hand, there are objective markers to confine the scope of review. Both federal and state law recognize that medical and non-medical uses are distinct and can be segregated. California's reserved powers are also relevant here.

    If one accepts the dubious claim that cultivation and possession of medical marijuana for personal use is economic, it has not been shown to substantially affect interstate commerce not that it is integral to the government's drug control scheme. The majority's definition of economic is breathtaking and and threatens to sweep all productive human activity into federal regulatory reach. It leads to the reasoning that Congress can regulate the production or possession of anything with an interstate market. This will not do. Anything commercial can have a non-economic alternative that should not be able to be regulated. That would lead to a federal police power.

    Congress must justify its excursion into the traditional domain of states, which it has not done. There is no evidence showing that the possession and use of homegrown marijuana for medical purposes has a substantial effect on interstate commerce.

  • Thomas: If Congress can regulate this under the Commerce Clause, it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers. This regulation would have been unthinkable in the early days of the Republic. It not only prohibits interstate commerce but also intrastate noncommercial activity, in excess of Congress's power.

    The Necessary and Proper Clause does not mean that Congress can pass any law that bears some conceivable connection to an enumerated power. It must be "plainly adapted" to regulating interstate commerce. There must be an "obvious, simple, and direct relation" between the intrastate ban and the regulation of interstate commerce. It must also be proper, meaning that is not inconsistent with the "letter and spirit" of the Constitution. Allowing Congress to regulate intrastate, noncommercial activity would confer a general "police power."

    Congress has also infringed upon states' rights. It is their police power to define their criminal law and to protect the health, safety, and welfare of their citizens. This would eliminate this reserved power and make the Necessary and Proper Clause a "pretext . . . for the accomplishment of object not intrusted to the government."

    The "substantial effects" test is a "rootless and malleable standard" at odds with the Constitution. It is not tethered to any clause in the Constitution and it is easily manipulated to allow things never allowed before by defining them in the broadest terms. The federal government can regulate almost any activity in any state, making a mockery of Madison's assurance that the "powers delegated" to the federal government are "few and defined," while those on the states are "numerous and indefinite."

    Plaintiffs' conduct does not even quality as commerce under any definition of that term. With no explanation, the majority has expanded "commerce" to include all "economic" activity. They keep expanding federal power, but they never contract it. They are not interpreting the Commerce Clause but rewriting it. No where does it give any hint of what powers are still reserved to the states, yet "the Constitution created a Federal Government of limited powers."