Order Code RL32844
CRS Report for Congress
.Received through the CRS Web
The Power to Regulate Commerce:
Limits on Congressional Power
Updated June 17, 2005
Kenneth R. Thomas
Legislative Attorney
American Law Division
Todd B. Tatelman
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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The Power to Regulate Commerce:
Limits on Congressional Power
Summary
The Commerce Clause of the United States Constitution provides that the
Congress shall have the power to regulate interstate and foreign commerce. The plain
meaning of this language might indicate a limited power to regulate commercial trade
between persons in one state and persons outside of that state. However, the
Commerce Clause has never been construed quite so narrowly. Rather, the clause,
along with the economy of the United States, has grown and become more complex.
In addition, when Congress began to address national social problems, the Commerce
Clause was often cited as the constitutional basis for such legislation. As a result, the
Commerce Clause has become the constitutional basis for a significant portion of the
laws passed by the Congress over the last fifty years, and it currently represents one
of the broadest bases for the exercise of congressional powers.
An examination of the United States Code shows that over 700 statutory
provisions, covering a range of issues, explicitly refer to either “interstate” or
“foreign” commerce. Over the last decade, however, the Supreme Court in United
States v. Lopez and United States v. Morrison has brought into question the breadth
of the Commerce Clause. While these cases have resulted in the overturning of a few
federal laws, their overall effect has so far been relatively modest in scope. A recently
decided Supreme Court case, Gonzales v. Raich, seems to confirm that the effect of
these previous cases will be limited.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Textual Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Drafting and Ratification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Case Law Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Three Categories of Commerce Clause Jurisprudence . . . . . . . . . . . . . . . . . . 9
Channels of Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Instrumentalities of Interstate Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Substantial Impact on Interstate Commerce . . . . . . . . . . . . . . . . . . . . . . . . 11
Wickard v. Filburn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Lopez and Morrison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Gonzales v. Raich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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The Power to Regulate Commerce: Limits
on Congressional Power
Background
The Commerce Clause of the United States Constitution provides that the
Congress shall have the power to regulate interstate and foreign commerce.1 The
plain meaning of this language might indicate a limited power to regulate commercial
trade between persons in one state and persons outside of that state. However, the
Commerce Clause has never been construed quite so narrowly. Rather, the clause,
along with the economy of the United States, has grown and become more complex.
In addition, when Congress began to address national social problems, the Commerce
Clause was often cited as the constitutional basis for such legislation. As a result, the
Commerce Clause has become the constitutional basis for a significant portion of the
laws passed by the Congress over the last fifty years, and it currently represents one
of the broadest bases for the exercise of congressional powers.
An examination of the United States Code shows that more than 700 statutory
provisions explicitly refer to either “interstate” or “foreign” commerce, covering a
significant number of issues. These issues include agriculture,2 banking,3 antitrust,4
securities,5 business regulation,6 energy regulation,7 hazardous substances,8 consumer
1 U.S. CONST., Art. I, §8, cl. 3.
2 See, e.g., 7 U.S.C. § 6a (2005)(prohibition on excessive commodity speculation); 7 U.S.C.
§ 6b (2005)(prohibition on fraud, false reporting, or deception in commodities).
3 See, e.g., 12 U.S.C. § 95 (2005)(regulation of the banking business; powers and duties of
national banks); 12 U.S.C. § 2501 (2005)(disposition of abandoned money orders and
traveler's checks).
4 See, e.g., 15 U.S.C. § 26b (2005) (application of the antitrust laws to professional major
league baseball).
5 See, e.g., 15 U.S.C. § 77e (2005)(domestic securities; prohibitions relating to interstate
commerce and the mails); 15 U.S.C. § 77l (2005)(civil liabilities arising in connection with
prospectuses and communications.
6 15 U.S.C. § 79h (2005)(public utility holding companies; acquiring interest in electric and
gas companies serving same territory); 15 U.S.C. § 79i (2005)(public utility holding
companies; acquisition of securities and utility assets and other interests).
7 See, e.g., §15 U.S.C. § 715b (2005)(interstate transportation of petroleum products;
interstate transportation of contraband oil forbidden);15 U.S.C. § 717 (2005)(natural gas;
regulation of natural gas companies); 16 U.S.C. § 813 (power entering into interstate
(continued...)

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credit,9 sports regulation,10 the internet,11 endangered species,12 civil rights,13 child
support,14 child pornography,15 abortion,16 criminal law,17 controlled substances,18
food,19 firearms control,20 terrorism,21 obscenity,22 gambling devices,23 labor,24
industrial safety,25 pensions,26 environmental law,27 fish and wildlife,28 medical
7 (...continued)
commerce; regulation of rates, charges).
8 See, e.g., 15 U.S.C. § 1263 (2005)(hazardous substances; prohibited acts); 15 U.S.C. §
1265 (2005)(hazardous substances; seizures); 15 U.S.C. § 1270 (2005)(hazardous
substances; examinations and investigations); 15 U.S.C. § 1271 (2005)(hazardous
substances; records of interstate shipment).
9 See, e.g., 15 U.S.C. § 1644 (2005)(consumer credit protection; fraudulent use of credit
cards; penalties); 15 U.S.C. § 1679a (2005)(consumer credit protection; credit repair
organizations).
10 See, e.g., 15 U.S.C. § 6307b (2005)(professional boxing safety; protection from coercive
contracts).
11 See, e.g., 15 U.S.C. § 7704 (2005)(non-solicited pornography and marketing; protections
for users of commercial electronic mail).
12 16 U.S.C. § 1538 (2005)(endangered species; prohibited acts).
13 See, e.g., 18 U.S.C. § 245 (2005)(civil rights; federally protected activities); 42 U.S.C. §
2000a (2005)(civil rights; prohibition against discrimination or segregation in places of
public accommodation).
14 18 U.S.C. § 228 (failure to pay legal child support obligations).
15 18 U.S.C. § 2251 (sexual exploitation of children).
16 18 U.S.C. § 1531 (partial-birth abortions prohibited).
17 There are over a hundred criminal laws which use the term “interstate commerce.” See,
e.g., 18 U.S.C. § 1033 (2005)(fraud and false statements; crimes by or affecting persons
engaged in the business of insurance whose activities affect interstate commerce); 18
U.S.C.§ 33 (destruction of motor vehicles or motor vehicle facilities); 18 U.S.C. § 1952
(interstate and foreign travel or transportation in aid of racketeering enterprises); 18 U.S.C.
§ 1958 (use of interstate commerce facilities in the commission of murder-for-hire).
18 See, e.g., 21 U.S.C. § 801 (2005)(drug abuse prevention and control; congressional
findings and declarations); 21 U.S.C. § 863 (2005)(drug abuse prevention and control; drug
paraphernalia).
19 See, e.g., 21 U.S.C. § 602 (meat inspection; congressional statement of findings).
20 See, e.g., 26 U.S.C. § 5861 (2005)(machine guns, destructive devices, and certain other
firearms; prohibited acts).
21 See, e.g.,18 U.S.C. § 2332a (use of weapons of mass destruction).
22 18 U.S.C. § 1462 (importation or transportation of obscene matter).
23 See, e.g., 15 U.S.C.. § 1172 (2005)(transportation of gambling devices as unlawful;
exceptions; authority of Federal Trade Commission ).
24 See, e.g., 29 U.S.C. § 207 (2005)(fair labor standards; maximum hours).
25 See, e.g., 29 U.S.C. § 651 (2005)(occupational safety and health; congressional statement
(continued...)

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products,29 water pollution,30 atomic energy,31 shipping,32 motor vehicle safety,33
airplanes34 and tort litigation.35
Recent Supreme Court case law, however, has brought the limits of the
Commerce Clause into question.36 While these cases have resulted in the overturning
of federal laws, their overall affect has so far been relatively modest in scope. A
recently decided Supreme Court case, Gonzales v. Raich,37 seems to confirm that the
effect of these previous cases will be limited.
Textual Analysis
The Commerce Clause provides that “The Congress shall have Power . . . To
regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes.” The word “commerce” appears to have the same primary meaning
today as it did in 1789 – “an interchange of goods or commodities between different
25 (...continued)
of findings and declaration of purpose and policy).
26 See, e.g., 29 U.S.C. § 1001 (2005)(employee retirement income security program;
congressional findings); 29 U.S.C. § 1001a (2005)(employee retirement income security
program; additional findings).
27 See, e.g., 33 U.S.C. § 1322 (2005)(water pollution prevention and control; marine
sanitation devices); 42 U.S.C. § 7671d (2005)(stratospheric ozone protection; phase-out of
production and consumption of class II substances).
28 16 U.S.C. § 3372 (2005)(fish and wildlife; prohibited acts).
29 See, e.g., 42 U.S.C. § 262 (2005)(licensing of biological products and clinical laboratories;
regulation of biological products).
30 See, e.g., 42 U.S.C. § 300j-23 (2005)(safety of public water systems; drinking water
coolers containing lead).
31 See, e.g., 42 U.S.C. § 2012 (2005)(atomic energy; findings); 42 U.S.C. § 2019
(2005)(atomic energy: applicability of federal power act ); 42 U.S.C. § 2073 (2005)(special
nuclear material; domestic distribution of special nuclear material).
32 See, e.g., 46 U.S.C. § 4307 (2005)(recreational vessels; prohibited acts); 46 U.S.C. § 4311
(2005)(recreational vessels; penalties and injunctions); 46 U.S.C. appendix § 801
(2005)(shipping act; definitions).
33 See, e.g., 49 U.S.C. § 30101 (2005)(motor vehicle safety; purpose and policy); 49 U.S.C.
§ 30112 (2005)(motor vehicle safety; prohibitions on manufacturing, selling, and importing
noncomplying motor vehicles and equipment); 49 U.S.C. § 30123 (2005)(motor vehicle
safety; tires).
34 See, e.g., 49 U.S.C. § 40116 (2005)(air commerce and safety; state taxation).
35 Public Law 109-2 (Class Action Fairness Act of 2005).
36 United States v. Lopez, 514 U.S.549, 561 (1995); United States v. Morrison, 529 U.S. 598
(2000).
37 ___ U.S. ___, 125 S. Ct. 2195 (2005).

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countries or between areas of the same country” or in other words “trade.”38
However, commentators have argued that a secondary meaning of commerce which
was understood at the time of the drafting of the Constitution includes all productive
activity which relates to commerce, such as manufacturing and agriculture.39
A further question is then raised whether Congress’s power to regulate
commerce is significantly limited by the phrase “with foreign Nations, and among
the several states, and with the Indian Tribes.” For instance, the phrase "among the
several States" could either be interpreted as "between people of different states" or
more broadly as “between people who live in the various states.” Some have argued
that the broader definition, which would cover commerce between people of the same
state, would render the phrase "among the several States" superfluous.40 This
question, generally characterized as whether the power to regulate “interstate
commerce” extends to “intrastate” commerce has been mostly settled by case law,
and most “intrastate” commercial transactions are vulnerable to some form of federal
regulation.41
Drafting and Ratification
The integration of commercial activities in the United States was a central
theme of the Constitutional Convention of 1787.42 It appears, however, that the
parameters of the Commerce Clause were not of particular concern to the framers of
the Constitution.43 The commentary contemporary to the Constitution on the power
did not concern itself with the federalism implications of managing interstate
38 Grant Nelson and Robert Pushaw, Jr., Rethinking the Commerce Clause: Applying First
Principles to Uphold Federal Commercial Regulations but Preserve State Control Over
Social Issues, 85 Iowa L. Rev. 1, 101 n 478 (2001). As will be discussed later, a
requirement that the thing to be regulated be “commercial” or “mercantile,” has, to some
extent, been used by the Supreme Court to limit the commerce power to “commercial”
activities. See United States v. Lopez, 514 U.S. 549, 561 (1995); United States v. Morrison,
529 U.S. 598, 617 (2000).
39 Grant Nelson and Robert Pushaw, Jr., supra note 38, at 14-15.
40 Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101,
132 (2001).
41 See “Case Law Development,” infra.
42 Virginia and Maryland had just finished a compact regarding the navigation and
jurisdiction of the Chesapeake Bay and the Potomac. The commissioners who had
negotiated this treaty called for a general trade convention, and various other states
responded by appointing delegates to this convention. Only when it became clear that this
convention might address other issues did the Continental Congress approve of it. J. Story,
Commentaries on the Constitution of the United States 252-54.
43 Abel, The Commerce Clause in the Constitutional Convention and in Contemporary
Comment, 25 MINN. L. REV. 432, 443-44 (1941); Greenspan, The Constitutional Exercise
of the Federal Police Power: A Functional Approach to Federalism, 41 VANDERBILT LAW
REVIEW 1019, 1022-24 (1988).

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economic transactions, but rather focused on the issue of foreign trade.44 The
primary purpose of the clause appears to have been raising federal revenue by the
nationalization of the states’ power to impose import tariffs,45 while a secondary
purpose was apparently to allow Congress to regulate and restrict foreign commerce
to advance American interests.46
The argument has been made that while regulating free and fair trade between
states was the principal motivation for adopting various other provisions of the
Constitution,47 it may not have been a strong motivation for the drafting of the
Commerce Clause. This is because state restrictions on trade between states were
already prohibited under the Articles of Confederation, and the states generally
complied with these restrictions.48 Consequently, commentary contemporary to the
ratification of the Constitution indicating that the Commerce Clause was intended to
limit state restrictions on interstate commerce was minimal.
Case Law Development
In Gibbons v. Ogden, the Supreme Court, in an opinion by Chief Justice
Marshall, considered a challenge to a monopoly on the operation of steam-propelled
vessels in New York waters. This monopoly was challenged by Gibbons, who
transported passengers from New Jersey to New York under an act of Congress. The
Chief Justice, in striking down the monopoly, wrote that "the power over commerce
. . . is vested in Congress as absolutely as it would be in a single government . . ." and
44 Those materials which do address congressional control over commerce focus on the
necessity of uniformity in matters of foreign commerce, although the drafters clearly
intended domestic commerce to be regulated as well. P. Kurland & R. Lerner, THE
FOUNDER'S CONSTITUTION 477-528 (1987).
45 Alexander Hamilton, CONTINENTALIST, No. 5, 18 Apr. 1782 (Paper 3:75-82) as reprinted
in P. Kurland & R. Lerner, supra note 44 ("The vesting of the power of regulating trade
ought to have been a principal object of the confederation for a variety of reasons. It is as
necessary for the purposes of commerce as of revenue.") For instance, the state of New
York imposed a 2% impost on imports that moved through the New York Harbor. Calvin
Johnson, The Panda’s Thumb: The Modest and Mercantilist Original Meaning of the
Commerce Clause, 13 WM. & MARY BILL OF RIGHTS JOURNAL 8 (2004). Efforts under the
Articles of Confederation to impose a federal impost on imports had been blocked by New
York. Id. at 11-12. Granting the Congress the power to raise revenue in this manner was
seen as an important way to pay off Revolutionary War debts. Id. at 8-11.
46 For instance, the prospect of excluding British ships from American waters, while never
realized, was contemplated as a retaliation for the exclusion of American ships from the
British West Indies. Calvin Johnson, supra n. 45, at 35-36.
47 Such provisions include the limitation on state duties and imposts on imports and exports,
U.S. CONST. Article I, § 10, cl. 2, as such duties had favored states with deep harbors over
neighbor states; the Port Preference Clause, U.S. CONST., Art. I, § 9, cl. 6, limiting the
federal government from imposing preferences for the ports of one state over another; and
the prohibition on states issuing paper money, U.S. CONST., Art. I, § 10, cl. 1, the issuance
of which had allowed states to require the acceptance of devalued money by out-of-state
creditors. Id. at 46-48.
48 Id. at 42-42.

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that "the influence which their constituents possess at elections, are . . . the sole
restraints" on this power.49
The Chief Justice went on to write that "[t]he counsel for the appellee would
limit [the term commerce] to traffic, to buying and selling, or the interchange of
commodities, and do not admit that it comprehends navigation. This would restrict
a general term, applicable to many objects, to one of its significations. Commerce,
undoubtedly, is traffic, but it is something more--it is intercourse," which the Court
found easily included the issue of navigation. Marshall did qualify the word
"intercourse" with the word "commercial," thus retaining the element of monetary
transactions.
The Court did not soon revisit this expansive view of the Commerce Clause.
Instead, over the next several decades, the Court considered the boundaries of the
“dormant Commerce Clause” doctrine – the implied limitation of the Commerce
Clause on a state's ability to regulate commerce.50 This, combined with the relatively
cautious exercise of the power by the early Congresses, meant that the Supreme
Court did not have occasion to consider the limits of the Congress’s power under this
doctrine for almost sixty years.
When the Court again revisited Congress’s power under the clause, it generally
approved of statutes regulating the interstate movement of goods or persons, such as
lottery tickets,51 adulterated food,52 or prostitutes.53 But, during the early 1900s, the
Supreme Court was confronted with statutes which went beyond regulation of trade,
and addressed other related economic activities. Consequently, the Court struck
down a series of federal statutes which attempted to extend commerce regulation to
activities such as "production," "manufacturing"54 or "mining."55
Starting in 1937, however, with the decision in NLRB v. Jones & Laughlin Steel
Corporation,56 the Supreme Court held that Congress has the ability to protect
interstate commerce from burdens and obstructions which "affect" commercial
transactions. In the NLRB case, the court upheld the National Labor Relations Act,
finding that by controlling industrial labor strife, Congress was preventing burdens
49 Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1, 197-98 (1824).
50 For a discussion of this case law, see Martin Redish and Shane Nugent, The Dormant
Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569
(1987).
51 Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903).
52 Hippolite Egg Co. v. United States, 220 U.S. 45 (1911).
53 Hoke v. United States, 227 U.S. 308 (1913).
54 United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895).
55 Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936).
56 301 U.S. 1 (1937).

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from being placed on interstate commerce.57 Thus, the Court rejected previous
distinctions between the economic activities (such as manufacturing) which led up
to interstate economic transactions, and the interstate transactions themselves. By
allowing Congress to regulate activities which were in the "stream" of commerce, the
Court also set the stage for the regulation of a variety of other activities which
"affect" commerce.
Subsequent Court decisions found that Congress had considerable discretion in
regulating activities which "affect" interstate commerce, as long as the legislation
was "reasonably" related to achieving its goals of regulating interstate commerce.58
Thus the Court found that in some cases, events of purely local commerce (such as
local working conditions) might, because of market forces, negatively affect
interstate commerce, and thus would be susceptible to regulation.59 The Court has
also held that an activity which in itself does not affect interstate commerce could be
regulated if all such activities taken together in the aggregate did affect interstate
commerce.60 Under the reasoning of these cases, the Court has upheld many diverse
laws, including laws regulating production of wheat on farms,61 racial discrimination
by businesses,62 and loan-sharking.63
In the 1995 case of United States v. Lopez,64 however, the Supreme Court
brought into question the extent to which the Congress can rely on the Commerce
Clause as a basis for federal jurisdiction. Under the Gun-Free School Zone Act of
1990, Congress made it a federal offense for "any individual knowingly to possess
a firearm at a place that the individual knows, or has reasonable cause to believe, is
a school zone."65 In Lopez, the Court held that, because the act neither regulated a
commercial activity nor contained a requirement that the possession was connected
to interstate commerce, the act exceeded the authority of Congress under the
Commerce Clause. Although the Court did not explicitly overrule any previous
rulings upholding federal statutes passed under the authority of the Commerce
Clause, the decision would appear to suggest new limits to Congress's legislative
authority.
The Lopez case was significant in that it was the first time since 1937 that the
Supreme Court struck down a federal statute purely based on a finding that the
57 301 U.S. at 41.
58 United States v. Darby, 312 U.S. 100 (1941)(approving legislation relating to working
conditions).
59 312 U.S. at 121.
60 Wickard v. Filburn, 317 U.S. 111 (1942).
61 Id.
62 Heart of Atlanta Motel v. United States, 370 U.S. 241 (1964); Katzenbach v. McClung,
379 U.S. 241 (1964).
63 Perez v. United States, 402 U.S. 146 (1971).
64 514 U.S. 549 (1995).
65 18 U.S.C. §922(q)(1)A).

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Congress had exceeded it powers under the Commerce Clause.66 In doing so, the
Court revisited its prior cases, sorted the commerce power into three categories, and
asserted that Congress could not go beyond these three categories: 1) regulation of
channels of commerce; 2) regulation of instrumentalities of commerce; and 3)
regulation of economic activities which "affect" commerce.67
Within the third category of activities which "affect commerce," the Court
determined that the power to regulate commerce applies to intrastate activities only
when they "substantially" affect commerce.68 Still, the Court in Lopez spoke
approvingly of earlier cases upholding laws which regulated intrastate credit
transactions, restaurants utilizing interstate supplies, and hotels catering to interstate
guests. The Court also recognized that while some intrastate activities may by
themselves have a trivial effect on commerce, regulation of these activities may be
constitutional if their regulation is an essential part of a larger economic regulatory
scheme. Thus, the Court even approved what has been perceived as one of its most
expansive rulings, Wickard v. Filburn, which allowed the regulation of the
production of wheat for home consumption.69
The Court in Lopez found, however, that the Gun Free School Zones Act fell
into none of the three categories set out above. It held that it was not a regulation of
channels of commerce, nor did it protect an instrumentality of commerce. Finally,
its effect on interstate commerce was found to be too removed to be "substantial."
The Court noted that the activity regulated, the possession of a gun in a school zone,
neither by itself nor in the aggregate affected commercial transactions.70 Further, the
statute contained no requirement that interstate commerce be affected, such as that
the gun had been previously transported in interstate commerce.71 Nor was the
criminalization of possession of a gun near a school part of a larger regulatory
66 Herman Schwartz, Court Tries to Patrol a Political Line, Legal Times 25 (May 8, 1995).
67 The Court failed to note that to some extent, the three categories are intertwined. For
instance, the first category, the regulation of "streams" or "channels" of commerce, allows
regulation of the creation, movement, sale and consumption of merchandise or services. But
the initial extension of the "streams" of commerce analysis by the Court to intrastate trade
was justified by the "effect" of these other activities on commerce. See NLRB v. Jones &
Laughlin, 301 U.S. 1, 31 (1936). Similarly, the second category, which allows the
regulation of such instrumentalities of commerce as planes, trains or trucks, is also based
on the theory that a threat to these instrumentalities "affects" commerce, even if the effect
is local in nature. Southern Railway Company v. United States, 222 U.S. 21, 26-27
(1911)(regulation of intrastate rail traffic has a substantial effect on interstate rail traffic).
Thus, the final category identified by the Court appears to be a catch-all for all other
activities which "substantially affect" commerce.
68 514 U.S. at 559.
69 Wickard v. Filburn, 317 U.S. 111 (1942).
70 514 U.S. at 564. The Court rejected arguments that possession of guns in school zones
affected the national economy by its negative impact on education. Id.
71 514 U.S. at 561.

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scheme which did regulate commerce.72 Finally, the Court indicated that criminal
law enforcement is an area of law traditionally reserved to the states.73 Consequently,
the Court found that Congress did not have the authority to pass the Gun Free School
Zone Act.
The Court also discussed the absence of legislative findings with respect to the
statute’s effect on interstate commerce.74 While noting that Congress is not formally
required to make such findings, the Court nevertheless held that “to the extent that
congressional findings would enable us to evaluate the legislative judgment that the
activity in question substantially affected interstate commerce, even though no such
substantial effect was visible to the naked eye, they are lacking here.”75
Although the Supreme Court has confirmed the dictates of Lopez in the case of
United States v. Morrison,76 discussed infra, both of these decisions dealt primarily
with the issue of “substantial impact” on commerce. However, as noted, the Court
has identified two other categories of power that Congress has under the Commerce
Clause – regulation of channels of commerce and regulation of instrumentalities of
commerce – that have been interpreted almost as broadly. Thus, an evaluation of the
impact of these cases requires an examination of all three categories of power.
The Three Categories of Commerce Clause
Jurisprudence
Channels of Commerce
The channels of commerce doctrine has been interpreted so as to represent a
broad power to regulate. To begin with, this category is the basis for a variety of
statutes that directly regulate the movement of persons or goods across state lines.
For instance, the United States Code contains extensive references to mailing or
shipping material in interstate commerce, including regulations or bans on shipping
biological agents,77 counterfeit documents,78 explosives,79 or threatening
communications.80
Of more significance is that the Court has not required that any nexus exist
72 514 U.S. at 560.
73 514 U.S. at 580 (Kennedy, J., concurring).
74 Id.
75 Id. at 563.
76 529 U.S. 598 (2000).
77 18 U.S.C. § 175b.
78 18 U.S.C. § 514.
79 18 U.S.C. § 842.
80 18 U.S.C. § 876.

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between the time that a person crosses a state border and the time they engage in a
prohibited activity. For instance, in United States v. Sullivan,81 the Court addressed
the application of § 301k of the Federal Food, Drug and Cosmetic Act to a local
pharmacist. The section prohibits the “doing of any . . . act with respect to, a . . .
drug . . . if such act is done while such article is held for sale after shipment in
interstate commerce and results in such article being misbranded." The pharmacist
was charged with “misbranding” sulfathiazole by not providing sufficient
information regarding dosage and usage.
The Court in Sullivan relied on previous precedent finding that Congress has not
only the power regulate commerce among the states, but also the power to “keep the
channels of such commerce free from the transportation of illicit or harmful
articles.”82 The fact that the defendant here had bought the item after it had passed
over state lines was not found to be of constitutional significance.83 Thus, the Court
appears to require only that the criminal activity in question has some relation to the
crossing of state lines.
Consistent with this line of reasoning, there are laws, such as criminal
prohibitions on mail fraud,84 where the material is regulated not because it is by
nature harmful, but rather because it relates to other behavior which is criminal. Or,
there are laws prohibiting crimes based on a person crossing the state line with the
intent to commit the sexual abuse of minors, where it is the activity engaged in after
the line is crossed that is criminal.85 Finally, there are laws that regulate activities
which utilize materials after they have been shipped in interstate commerce, even if
the materials were perfectly legal when they were transported.86
Ultimately, based on cases such as Sullivan, it would appear that statutes that
would otherwise be in violation of the limitations of Lopez could be approved by
courts because of the presence of the jurisdictional element that an item related to
the crime had crossed a state line. Under this reasoning, the gun possession law
struck down in Lopez, which has since been amended to require that the gun had
previously been shipped in interstate commerce,87 would be upheld.88 Thus, an
expansive reading of the channels of commerce doctrine would appear to stand in the
way of a limited interpretation of the Commerce Clause.
81 332 U.S. 689 (1948).
82 McDermott v. Wisconsin, 228 U.S. 115, 128 (1913).
83 332 U.S. at 697-98.
84 18 U.S.C. § 1341.
85 18 U.S.C. § 2241.
86 18 U.S.C. § 2252(a)(4)(B)(distributing child pornography where materials used have
traveled in interstate commerce).
87 18 U.S.C. § 922(q)(2)(see Historical Notes).
88 But see United States v. McCoy, 323 F.3d 1114, 1124- 1126 (9th Cir. 2003) (reversing
a conviction for possession of child pornography where jurisdiction was based on movement
of photographic materials over state lines).

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CRS-11
Instrumentalities of Interstate Commerce

Under the "instrumentalities of commerce" category, Congress may properly
make whatever regulations it sees fit for the safety, efficiency, and accessibility of the
nationwide transportation and communications networks. For instance, in Preseault
v. I.C.C.,89 the Court considered whether Congress could prevent the reversion of
railroad rights-of-way to property owners after abandonment in order to create
recreational trails. The I.C.C. argued that turning the right-of-ways into recreation
trails was preserving the rail corridors for future railroad use. Despite arguments that
the preservation argument was a pretext, the Court held that it must defer to a
congressional finding that a regulated activity affects interstate commerce "if there
is any rational basis for such a finding."90
The instrumentalities of commerce category represents yet another significant
basis for expansive congressional authority. As noted previously, federal mail and
wire fraud statutes make it a crime to engage in fraud while using the telephone or
the mails. By analogy, Congress could reach many other activities that utilize these
networks or similar networks such as railroads, interstate highways, and even the
Internet. While this category has not been fully occupied by Congress, it would
appear that a significant amount of federal power could be exercised in this manner,
regardless of whether the matter regulated involved non-economic activity.91 The
Court has not yet indicated whether the Lopez requirement that regulated activities
have some connection to a commercial activity would be applicable in this category.
Substantial Impact on Interstate Commerce
Wickard v. Filburn.
The third prong of Congress’s power to regulate under the Commerce Clause
involves those activities that have a substantial impact or effect on interstate
commerce. To fully understand the scope and reach of this power, it is important to
begin with an examination of the Court’s 1942 decision in Wickard v. Filburn,92
which led to the expansive view of the Commerce Clause that Congress operated
under until 1995. In Wickard, the Court was asked to determine whether, under the
Commerce Clause, amendments to the Agricultural Adjustment Act of 1938
implementing a quota system to restrict the amount of wheat that could be harvested
and sold, applied to individuals who produced and consumed homegrown bushels of
wheat.93
89 494 U.S. 1 (1990).
90 494 U.S. at 17, citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452
U.S. 264, 276 (1981).
91 See Jesse Choper, Taming Congress’s Power Under the Commerce Clause: What Does
the Near Future Portend, 55 ARK. L. REV. 731, 761-762 (2003).
92 Wickard v. Filburn, 317 U.S. 111, 113-114 (1942).
93 In 1941, Mr. Filburn harvested an excess amount of 239 bushels for which he was fined
(continued...)

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CRS-12
In upholding the statute as constitutional, the Court held that economic
activities, regardless of their nature, could be regulated by Congress if the activity
“asserts a substantial impact on interstate commerce . . . .”94 The Court reasoned that
the growing of wheat, even if only for a family’s personal consumption, provided an
alternative to the marketplace that was both viable and competitive.95 Although the
Court admitted that one family’s production alone would likely have a negligible
impact on the overall price of wheat, if combined with other personal producers the
effect would be substantial enough to make the activity subject to congressional
regulation.96 The rationale of combining individual effects to find substantial impacts
on interstate commerce has become known as the “aggregation theory,” and arguably
represents the most far reaching example of Congress’s authority to regulate under
the Commerce Clause.97
Lopez and Morrison.
After Wickard, the Court consistently held that a “rational basis” existed for
Congress to enact laws under the theory that the regulated behavior substantially
affected interstate commerce.98 Despite the consistency of these decisions, it was not
always clear whether the activity in question met the “substantially affects” test.
Then in 1995, when the Court decided the Lopez case, as discussed previously, it
explored the limits of the “substantially affects” test.
Subsequently, in United States v. Morrison,99 the Court invalidated a portion of
the Violence Against Women Act, which specifically created a private right of action
against anyone who committed such a crime, allowing an injured party to obtain
damages and other compensatory relief.100 Applying its holding in Lopez, the Court
concluded that the activity regulated by the Act could not be classified as “economic
activity,” and therefore the aggregation principle established by Wickard did not
apply. The Court, however, stopped short of establishing a rule that all non-
93 (...continued)
$117.11 pursuant to amendments to the Agricultural Adjustment Act of 1938. Id. at 114.
94 Id. at 125.
95 Id. at 128.
96 Id.
97 See United States v. Lopez, 514 U.S. 549, 560 (1995).
98 See e.g., Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264,
276-280 (1981); Perez v. United States, 402 U.S. 146, 155-156 (1971); Katzenbach v.
McClung, 379 U.S. 294, 299-301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379
U.S. 241, 252-253 (1964).
99 United States v. Morrison, 529 U.S. 598 (2000).
100 42 U.S.C. § 13981 (2000). In Morrison, a female plaintiff brought suit under the Act
against two men who had allegedly assaulted and raped her. The plaintiff asserted that her
right to be free from gender associated violence had been violated, and therefore, she was
entitled to monetary damages. See Morrison, 529 U.S. at 599 (2000).

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CRS-13
economic activity cannot be aggregated.101 In addition, the Court concluded that the
Act contained no jurisdictional element connecting the creation of a federal cause of
action for gender-motivated violence to Congress’s power to regulate interstate
commerce.102
Further, while in Morrison, unlike in Lopez, there were numerous congressional
findings, the Court stressed that although findings by the legislative branch can serve
to illuminate the relationship between the regulation and interstate commerce,
constitutionality ultimately turns on the legal aspects of the substantial effects
doctrine, and therefore, is for the Court to decide.103 In this case, the Court found that
the legislative findings detailing the effects on interstate commerce by gender
motivated violence were based in large part on the “costs of crime,” which was
nearly identical to the reasoning expressly rejected by the Court in Lopez.104
Finally, the Court considered the level of attenuation between the regulated
activity and its effect on interstate commerce. In this case, the Court concluded that
the regulation of gender-motivated violent crime was not directed at the
instrumentalities, channels or goods involved in interstate commerce, and was
therefore beyond the scope of Congress’s authority.105
In sum, after Lopez and Morrison, the test to determine whether a regulation has
a substantial effect on interstate commerce requires reviewing courts to consider the
following four factors: (1) whether the regulated activity is commercial or economic
in nature; (2) whether an express jurisdictional element is provided in the statute to
limit its reach; (3) whether Congress made express findings about the effects of the
proscribed activity on interstate commerce; and (4) whether the link between the
prohibited activity and the effect on interstate commerce is attenuated.106
Gonzales v. Raich.
After the decision in Lopez and Morrison, the question arose as to whether these
cases were a harbinger of future restrictions on Congress’s power to legislate.
101 Id. (stating that “while we need not adopt a categorical rule against aggregating the
effects of any non-economic activity in order to decide these cases, thus far in our Nation’s
history our cases have upheld Commerce Clause regulation of interstate activity only where
that activity is economic in nature.”).
102 Id. (holding that because of the lack of jurisdictional element, “Congress elected to cast
§ 13981's remedy over a wider, and more purely intrastate, body of violent crime”).
103 Id.
104 Id. at 615 (stating that the reasoning of Congress would supply it with the power to
“regulate any crime as long as the nationwide, aggregated impact of that crime has
substantial effects on employment, production, transit or consumption.”).
105 Id. at 618 (holding that “the regulation and punishment of intrastate violence that is not
directed at the instrumentalities, channels, or goods involved in interstate commerce has
always been the province of the States.”).
106 United States v. Stewart, 348 F.3d 1132, 1136-37 (9th Cir. 2003)(citing Morrison, 529
U.S. at 610-12).

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CRS-14
Arguably, the Court had intended Lopez and Morrison to have a limited effect, as the
Court specifically reaffirmed much of its previous Commerce Clause case law.
Further, the statutory provisions challenged in Lopez (criminal penalties for gun
possession in or near schools) and Morrison (civil suits for gender-motivated crime)
were relatively unusual for statutes based on the commerce clause in that they did not
contain a specific requirement that the activities be related to commerce. In addition,
while broad economic regulation may have noneconomic elements (e.g., record-
keeping requirements), the provisions in question were activities were not associated
with such larger schemes.
Accordingly, when provisions contained in broader regulatory schemes were
challenged after Lopez and Morrison, the lower courts generally upheld these under
a “broader scheme” doctrine.107 This doctrine is largely derived from language in
Lopez that arguably permits congressional regulation of noneconomic activity if the
regulation is “an essential part of a larger regulatory scheme, in which the regulatory
scheme would be undercut unless the intrastate activity was regulated.”108
Nonetheless, it was suggested by some commentators that certain non-
economic provisions of larger regulatory schemes might also be successfully
challenged. These challenges were generally characterized as “as applied” challenges.
Generally, a court reviewing the constitutionality of a federal statute may declare the
statute unconstitutional either as invalid on its face,109 or "as applied" to a particular
107 For example, numerous federal circuit courts have upheld the constitutionality of federal
child pornography statutes that criminalize intrastate possession by finding the activity
sufficiently connected to Congress’s broader scheme of regulating the interstate commercial
market for child pornography. See e.g., United States v. Adams, 343 F.3d 1024, 1034 (9th
Cir. 2003); see also United States v. Hampton, 260 F.3d 832 (8th Cir. 2001); United States
v. Corp, 236 F.3d 325 (6th Cir. 2001); United States v. Kallestad, 236 F.3d 225 (5th Cir.
2000); United States v. Angle, 234 F.3d 326 (7th Cir. 2000); United States v. Rodia, 194
F.3d 465 (3d Cir. 1999); United States v. Robinson, 137 F.3d 652 (1st Cir. 1998); United
States v. Buculei, 262 F.3d 322 (4th Cir. 2001); United States v. Galo, 239 F.3d 572 (3d Cir.
2001); United States v. Bausch, 140 F.3d 739 (8th Cir. 1998); but see United States v.
McCoy, 323 F.3d 1114 (9th Cir. 2003); United States v. Corp, 236 F.3d 325 (6th Cir. 2001).
108 Lopez, 514 U.S. at 561.
109 According to the Supreme Court, “[a] facial challenge to a legislative Act is, of course,
the most difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid.” United States v.
Salerno, 481 U.S. 739, 745 (1987) (holding that the Bail Reform Act of 1984 is not facially
invalid) (emphasis added).

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CRS-15
set of circumstances.110 Utilizing an “as applied” standard, various lower courts
struck down particular applications of broader statutory schemes.111
When presented with an “as applied” challenge, these courts initially attempted
to define the relevant “class of activity” presented by the facts of the specific case.
For instance, in the Ninth Circuit case of Ashcroft v. Raich, the court considered a
challenge to the Controlled Substances Act. The challenging parties were seriously-ill
California residents who had obtained marijuana consistent with California’s
Compassionate Use Act112 but in violation of the federal Controlled Substances Act
110 An "as applied" challenge is less difficult to sustain than a facial challenge because the
challenger has to establish only that the statute is invalid when applied to the specific set of
factual circumstances presented. Thus, some scholars had posited that since Lopez and
Morrison were decided, "as applied" challenges to federal statutes for violation of the
Commerce Clause would be more successful than have facial challenges See Brannon P.
Denning & Glenn H. Reynolds, Rulings and Resistance: The New Commerce Clause
Jurisprudence Encounters the Lower Courts, 55 ARK. L. REV. 1253, 1262 (2003)
[hereinafter Denning & Reynolds] (noting that a review of lower court decisions between
2000 and 2003 indicates that while only one statute has been found facially unconstitutional,
there had been multiple decisions handed down holding that federal statutes are
unconstitutional as applied to their specific facts).
111 Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), rev’d, sub nom. Gonzales v. Raich, ___
U.S. ___, 125 S.Ct. 2195 (2005)(holding that possession of marijuana for medicinal
purposes consistent with California state law did not substantially impact commerce, and
thus was outside of Congress’ authority to regulate); United States v. Stewart, 348 F.3d
1132 (9th Cir. 2003) (reversing a possession of an illegal machine-gun conviction because
the statute failed to satisfy the Lopez/Morrison standard); United States v. McCoy, 323 F.3d
1114 (9th Cir. 2003) (reversing a conviction for possession of child pornography because
the statute failed to provide the necessary relationship to interstate commerce to justify
Congress’s power); United States v. Lynch, 265 F.3d 758 (9th Cir. 2001) (vacating a Hobbs
Act conviction and remanding to district court for determination of whether the robbery of
an individual is within scope of statute); United States v. Odom, 252 F.3d 1289 (11th Cir.
2001) (reversing convictions under federal arson statute where subject of arson was a
church); United States v. Johnson, 246 F.3d 749 (5th Cir. 2001) (refusing to reconsider prior
decision vacating guilty plea of defendant for burning down one-story church building under
federal arson statute); United States v. Peterson, 236 F.3d 848 (7th Cir. 2001) (granting
reversal of Hobbs Act conviction because there was no evidence of connection with
interstate commerce as required by the statute); United States v. Corp, 236 F.3d 325 (6th
Cir. 2001) (reversing conviction under federal child pornography statute based on interstate
movement of photographic materials where it was conceded that defendant kept pictures for
personal use and did not intend to sell or trade pictures); United States v. Ryan, 227 F.3d
1058 (8th Cir. 2000) (reversing and remanding a conviction under federal arson statute for
arson of vacant fitness center); United States v. Wang, 222 F.3d 234 (6th Cir. 2000)
(reversing a Hobbs Act conviction and noting attenuated connection to interstate commerce
where criminal act directed toward individual as opposed to business); United States v.
Ramey, 217 F.3d 842 (4th Cir. 2000) (vacating sentence under federal arson statute in light
of Jones v. United States, 529 U.S. 848 (2000)); United States v. Rayborn, 138 F. Supp. 2d
1029 (W.D. Tenn. 2001) (discussing motion to reconsider dismissal of indictment for arson
and finding that the church was not actively used in interstate commerce and that none of
its activities affects interstate commerce).
112 Cal. Health & Safety Code § 11362.5 (1996) (allowing the use of marijuana for medical
(continued...)

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CRS-16
(CSA).113 The Ninth Circuit found the class of activity to be the “intrastate,
noncommercial cultivation, possession and use of marijuana for personal medical
purposes on the advice of a physician and in accordance with state law.”114 Having
defined the relevant class of activity, the court proceeded to apply the four factor
Morrison test.
With respect to the first factor – whether or not the activity is commercial or
economic in nature – the court concluded that the narrow class of activity in this case
could not be considered commercial or economic in nature.115 The court next
considered whether the CSA contains an express jurisdictional element that would
limit its reach to those cases that substantially affect interstate commerce. With no
stated analysis, and apparently persuaded by the reasoning of a district court opinion,
the court concluded that “[n]o such jurisdictional hook exists in the relevant portions
of the CSA.”116
With respect to whether the legislative history contains congressional findings
regarding the effects on interstate commerce, the court was able to cite findings
relating to the effect that intrastate drug trafficking activity would have on interstate
commerce.117 While admitting that the legislative history lends support to the
constitutionality of the statute under the Commerce Clause, the court proceeded to
diminish the importance of these findings by arguing that they were not specific to
either marijuana or the medicinal use of marijuana, but rather related to the general
effects of drug trafficking on interstate commerce.118 In addition, the court referred
to language in Morrison, discussing the limited role of congressional findings.119
Moreover, the court referenced Ninth Circuit precedent concluding that the first and
fourth prongs of the Morrison test – whether the statute regulates an economic
112 (...continued)
purposes upon the recommendation of a licensed physician).
113 21 U.S.C. § 841(a)(1) (2003) (classifying marijuana as a “Schedule I” controlled
substance and as such making it illegal to “manufacture, distribute or dispense, or possess
with the intent to manufacture, distribute, or dispense a controlled substance” unless
provided for in the statute).
114 Id. at 1229.
115 Raich, 352 F.3d at 1230 (stating that the “cultivation, possession, and use of marijuana
for medicinal purposes and not for exchange or distribution is not properly characterized as
commercial or economic activity”).
116 Id. at 1231 (citing County of Santa Cruz v. Ashcroft, 279 F. Supp. 2d 1192, 1209 (N.D.
Cal. 2003)).
117 Id. at 1232 (citing 21 U.S.C. § 801, which states that “federal control of intrastate
incidents of the traffic in controlled substances is essential to the effective control of the
interstate incidents such as traffic.”).
118 Id. at 1232.
119 Id. (citing Morrison, 529 U.S. at 614).

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CRS-17
enterprise and whether the link is attenuated – are the most significant factors to the
analysis.120
Finally, with respect to whether the link between the regulated activity and a
substantial effect on interstate commerce is attenuated, the court expressed doubt that
the interstate effect of homegrown medical marijuana is substantial. Citing authority
questioning the validity of the federal government’s claim of an effect on interstate
commerce,121 the court concluded that “this factor favors a finding that the CSA
cannot constitutionally be applied to the class of activities at issue in this case.”122
The United States Supreme Court granted certiorari specifically on the question
of whether the power vested in Congress by both the “Necessary and Proper Clause,”
and the “Commerce Clause” of Article I includes the power to prohibit the local
growth, possession, and use of marijuana permissible as a result of California’s
law.123 Justice Stevens, writing for the majority in the now-entitled Gonzales v.
Raich, reversed the Ninth Circuit’s decision and held that Congress’s power to
regulate commerce extends to purely local activities that are “part of an economic
class of activities that have a substantial effect on interstate commerce.”124
In reaching its conclusions, the Court relied heavily on its 1942 decision in
Wickard v. Filburn, which held that the Agricultural Adjustment Act’s federal quota
system applied to bushels of wheat that were homegrown and personally consumed.
Wickard stands for the proposition that Congress can rationally combine the effects
that individual producers have on a commercial market to find substantial impacts
on interstate commerce.125 The Court pointed to numerous similarities between the
facts presented in Raich and those in Wickard. Initially, the Court noted that because
the commodities being cultivated in both cases are fungible and that well-established
interstate markets exist, both markets are susceptible to fluctuations in supply and
120 Id. at 1232-33 (citing United States v. McCoy, 323 F.3d 1114, 1119 (9th Cir. 2003)).
121 Id. at 1233 (quoting Conant v. Walters, 309 F.3d 629, 647 (9th Cir. 2002) (stating that
“[m]edical marijuana, when grown locally for personal consumption, does not have any
direct or obvious effect on interstate commerce. Federal efforts to regulate it considerably
blur the distinction between what is national and what is local.”) (Kozinski, J., concurring)).
122 Id.
123 Gonzales v. Raich, ___ U.S. ___, 125 S. Ct. 2195 (2005).
124 Id. at 2205 (citing Perez v. United States, 402 U.S. 146, 151 (1970)). The final outcome
was 6-3 with Justice Stevens writing for himself and Justices Souter, Kennedy, Breyer, and
Ginsburg. Justice Scalia, via a separate opinion, concurred only in the Court’s judgment.
See id. at 2215. Justice O'Connor dissented and filed an opinion that both Chief Justice
Rehnquist and Justice Thomas joined in part. See id. at 2221. In addition, Justice Thomas
filed his own dissenting opinion. See id. at 2229.
125 Wickard v. Filburn, 317 U.S. 111, 125 (1942) (holding that, economic activity, regardless
of its nature, can be regulated by Congress if the activity “asserts a substantial impact on
interstate commerce ...”).

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CRS-18
demand based on production intended for home-consumption being introduced into
the national market.126
According to the Court, just as there was no difference between the wheat Mr.
Wickard produced for personal consumption and the wheat cultivated for sale on the
open market, there is no discernable difference between personal home-grown
medicinal marijuana and marijuana grown for the express purpose of being sold in
the interstate market.127 Thus, the Court concluded that Congress had a rational basis
for concluding that “leaving home-consumed marijuana outside federal control would
similarly affect price and market conditions.”128
Respondents argued that Wickard was distinguishable because in the case of
wheat the activity involved was purely commercial, and the evidence clearly
established that the aggregate production of wheat had a significant effect on the
interstate market. Conversely, respondents claimed that the activity at issue in Raich
is non-commercial – the respondents had never attempted to sell their marijuana –
and Congress had made no finding that the personal cultivation and use of medicinal
marijuana has a substantial effect on the interstate marijuana market.129 The Court,
however, noted that the standard for assessing the scope of Congress’s power under
the Commerce Clause, is not whether the activity at issue, when aggregated,
substantially affects interstate commerce; but rather, whether there exists a “rational
basis” for Congress to have concluded as such.130 The Court, applying this deferential
standard, concluded that “Congress had a rational basis for believing that failure to
regulate the intrastate manufacture and possession of marijuana would leave a gaping
hole in the CSA.”131 Moreover, the Court affirmed that “Congress was acting well
within its authority to ‘make all Laws which shall be necessary and proper’ to
‘regulate Commerce ... among the several States.’”132
126 Raich, 125 S.Ct. at 2207, n. 29. The Court noted that the while the marijuana market is
an illegal or illicit market, this fact appears to be of no legal or constitutional significance
as Congress’s power arguably encompasses both lawful and unlawful interstate markets.
See id. (citing Lopez, 514 U.S. at 571, (Kennedy, J., concurring) (stating that “[i]n the
Lottery Case, 188 U.S. 321 (1903), the Court rejected the argument that Congress lacked
[the] power to prohibit the interstate movement of lottery tickets because it had power only
to regulate, not to prohibit.”).
127 Raich, 125 S.Ct. at 2207.
128 Id. (stating that “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.”) (internal
citations omitted).
129 Id.
130 Id. at 2208-09 (citing Lopez, 514 U.S. at 557; see also Hodel v. Virginia Surface Mining
& Reclamation Assn., Inc., 452 U.S. 264, 276-280 (1981); Perez, 402 U.S. at 155-156).
131 See Raich, 125 S.Ct. at 2209.
132 Id.

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CRS-19
Despite having concluded that under the “rational basis test” Congress had acted
within its constitutional authority when it enacted the CSA and applied it to intrastate
possession of marijuana, the Court nevertheless had to distinguish Lopez and
Morrison, the Court’s more recent Commerce Clause decisions. The Court
concluded that the CSA, unlike the statutes in either Lopez (Gun Free School Zones
Act) or Morrison (Violence Against Women Act), regulated activity that is
“quintessentially economic,” therefore, neither Lopez or Morrison cast any doubts on
the constitutionality of the statute.133 The Court specifically rejected the reasoning
used by the Ninth Circuit, concluding that “Congress acted rationally in determining
that none of the characteristics making up the purported class, whether viewed
individually or in the aggregate, compelled an exemption from the CSA; rather, the
subdivided class of activities defined by the Court of Appeals was an essential part
of the larger regulatory scheme.”134
In supporting its conclusions, the Court noted that, by characterizing marijuana
as a “Schedule I” narcotic, Congress was implicitly finding that it had no medicinal
value at all. In addition, the Court returned to the fact that medicinal marijuana was
a fungible good, thus making it indistinguishable from the recreational versions that
Congress had clearly intended to regulate. According to the Court, to carve out
medicinal use as a distinct class of activity, as the Ninth Circuit had done, would
effectively make “any federal regulation (including quality, prescription, or quantity
controls) of any locally cultivated and possessed controlled substance for any purpose
beyond the ‘outer limits’ of Congress’[s] Commerce Clause authority.”135 Moreover,
the Court held that California’s state law permitting the use of marijuana for
medicinal purposes cannot be the basis for placing the respondent’s class of activity
beyond the reach of the federal government, due to the Supremacy Clause, which
requires that, in the event of a conflict between state and federal law, the federal law
shall prevail.136
Finally, the Court responded to the respondent’s argument that its activities are
not an “essential part of a larger regulatory scheme” because they are both isolated
and policed by the State of California and they are completely separate and distinct
from the interstate market.137 The Court held that not only could Congress have
rationally rejected this argument, but also that it “seem[ed] obvious” that doctors,
patients, and caregivers will increase the supply and demand for the substance on the
open market.138 In sum, the Court concluded that the case for exemption can be
distilled down to an argument that a locally grown product used domestically is
133 Id. at 2209-10
134 Id. at 2211.
135 Id. at 2212 (emphasis in original).
136 Id.
137 Id. at 2213.
138 Id. 2213-14 (stating that “[i]ndeed that the California exemptions will have a significant
impact on both the supply and demand sides of the market for marijuana is not just
‘plausible’ as the principal dissent concedes, ... it is readily apparent”).

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CRS-20
immune from federal regulation, which has already been precluded by the Court’s
decision in Wickard v. Filburn.139
139 Id. at 2215.

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