Congress’s Power Under the Commerce Clause: The Impact of Recent Court Decisions

Congress’s Power Under the Commerce Clause: The Impact of Recent Court Decisions

Order Code RL32446
CRS Report for Congress
Received through the CRS Web
Congress’s Power Under the
Commerce Clause: The Impact of
Recent Court Decisions
June 23, 2004
Todd B. Tatelman
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Congress’s Power Under the Commerce Clause: The
Impact of Recent Court Decisions
Summary
From 1937 to 1995, fostered by expansive Supreme Court jurisprudence, the
United States Congress operated under a generous view of its authority under the
Commerce Clause that permitted the federal courts to consider the cumulative effects
of legislation when determining whether a congressional action substantially affected
interstate commerce. During that period no congressional legislation had been held
unconstitutional under the Commerce Clause. In 1995, and again in 2000, however,
the Court held two statutes, the Gun Free School Zones Act and the Violence Against
Women Act, unconstitutional as exceeding Congress’s authority under the
Commerce Clause. These cases arguably created a tension between an expansive
view of the Commerce Clause exemplified by the “aggregation theory,” and a more
constrained view aided by the distinction between “economic” and “non-economic
activity.” Starting in 2003, the Ninth Circuit Court of Appeals began utilizing the
Supreme Court’s more modern analysis to find federal legislation that makes the
possession of child pornography, and homemade machineguns unconstitutional on
the grounds that the statutes exceeded the scope of Congress’s power under the
Commerce Clause. In addition, the Ninth Circuit has held sections of the Controlled
Substances Act unconstitutional insofar as they require the prosecution of persons for
possessing and using marijuana for approved medicinal purposes.
These statutes were each found to be too great an intrusion into what have been
traditionally local matters and as such could not be sustained under the Commerce
Clause. Should the Supreme Court grant certiorari and uphold any of these cases,
the result could potentially be a further erosion of Congress’s ability to regulate
criminal behavior that occurs primarily intrastate. Such an erosion could have an
impact not only on traditional criminal legislation, but also on terrorism and
homeland security related legislation. While there may be other available sources of
constitutional power, the Commerce Clause has traditionally been relied upon when
legislating in these areas; therefore, federal case law discussing alternative sources
of power is scarce.
This report will first review the current Supreme Court case law with respect to
the Commerce Clause. Second, it will examine the analysis used and the results of
the three lower court opinions. Finally, two areas of tension that appear to exist
within the Court’s jurisprudence, and the potential implications that resolution of
these conflicts may have on congressional power under the Commerce Clause will
be examined.

Contents
Current Supreme Court Commerce Clause Jurisprudence . . . . . . . . . . . . . . 1
Recent Lower Court Developments in Commerce Clause Jurisprudence . . . 5
Potential Implications for Congress’s Power to Regulate Under the
Commerce Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Congress’s Power Under the Commerce
Clause: The Impact of Recent Court
Decisions
From 1937 to 1995, fostered by an expansive Supreme Court jurisprudence, the
United States Congress operated under a very generous view of its authority under
the Commerce Clause. During that period no congressional legislation was held
unconstitutional for violating the Commerce Clause. In 1995, and again in 2000,
however, the Court held two statutes, the Gun Free School Zones Act and the
Violence Against Women Act, unconstitutional as exceeding Congress’s authority
under the Commerce Clause. In 2003, the Ninth Circuit Court of Appeals issued
three opinions holding three different federal statutes unconstitutional applying the
analysis of the Supreme Court. These cases, should they be upheld, potentially
represent a further erosion of Congress’s ability to regulate the possession of
contraband that it decides has a substantial effect on interstate commerce. Should the
analysis used in these cases be adopted by the Supreme Court, it could have a major
impact on Congress’s ability to legislate regarding crime, drugs, and potentially
terrorism unless an alternative source of authority can be found.
Current Supreme Court Commerce Clause Jurisprudence
To fully understand the scope of Congress’s power to regulate interstate
commerce, it is important to begin with an examination of the reasoning and analysis
of the Court’s 1937 decision in Wickard v. Fliburn, which led to the expansive view
of the Commerce Clause that Congress operated under until 1995. This case
involved Mr. Filburn, who was the operator of a small Ohio farm where he grew
wheat for personal consumption.1 Mr. Filburn asked the Court to determine whether,
under the Commerce Clause, amendments to the Agricultural Adjustment Act of
1938, which implemented 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.2
In upholding the statute as constitutional, the Court expressly rejected previous
decisions that had held “activities such as production, manufacturing and mining [to
be] strictly local and . . . cannot be regulated under the commerce power because
1Wickard v. Filburn, 317 U.S. 111, 113-114 (1942). In 1941, Mr. Filburn harvested an
excess amount of 239 bushels for which he was fined $117.11 pursuant to amendments to
the Agricultural Adjustment Act of 1938. Id. at 114.
2Id.

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their effects upon interstate commerce are, as a matter of law, only indirect.”3 The
Court stated that neither the subject of the regulation, nor whether the regulated
activity was “local” was dispositive of Congress’s power under the Commerce
Clause. Rather, 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 . . . .”4 The Court reasoned that Filburn’s growing of wheat,
even if only for his family’s personal consumption, provided him with an alternative
to the marketplace and, therefore, the production was in direct competition with the
wheat on the market.5 Although the Court admitted that Filburn’s production alone
would have a negligible impact on the overall price of wheat, the Court held that,
when combined with other such personal producers, the effect would be substantial
enough to make them subject to Congressional regulation.6 The rationale of
combining individual effects to find substantial impacts on interstate commerce has
become known as the “aggregation theory,” and represents the most far reaching
example of Congress’s authority to regulate under the Commerce Clause.7
The Court’s decision in Wickard recognized that there had been a shift in the
way that businesses operated in the United States. No longer were there merely local
or even regional businesses, but now there were truly national interests that required
an expansive view of Congress’s power under the Commerce Clause. While never
deciding that this expansive view was without limits, the Court continued to hold that
a “rational basis” existed for Congress to enact laws under the theory that the
regulated behavior substantially affected interstate commerce.8 Despite the
consistency of these decisions, it was not always clear whether the activity in
question met the “substantially affected” test. In 1995, the Court explored the limits
of the “substantial affects” test. In United States v. Lopez, the Court reviewed the
constitutionality of the Gun Free School Zones Act of 1990, which made it a federal
offense for “any individual to knowingly possess a firearm at a place that the
individual knows, or has reasonable cause to believe, is a school zone.”9
The Court reasoned that for the Gun Free School Zones Act to be held
constitutional it would have to be a regulation substantially affecting interstate
commerce, as the law did not effect either the channels or instrumentalities of
interstate commerce. In determining what constitutes a substantial affect, the Court
cited favorably previous cases upholding congressional acts that regulated intrastate
3Id. at 119 (citing Carter v. Carter Coal Co., 298 U.S. 238, 308 (1936)) (internal quotation
marks omitted).
4Id. at 125.
5Id. at 128.
6Id.
7See United States v. Lopez, 514 U.S. 549, 560 (1995).
8See 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).
918 U.S.C. § 922(q)(1)(A) (1990).

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coal mining,10 intrastate extortionate credit transactions,11 restaurants using interstate
supplies,12 and hotels catering to interstate guests.13 In addition, the Court even cited
favorably to Wickard, concluding that where “economic activity substantially affects
interstate commerce, legislation regulating that activity will be sustained.”14
Applying this standard to the Gun Free School Zones Act, the Court held that
the law did not, either by itself or in the aggregate, substantially affect interstate
commerce. The Court identified three reasons why the statute failed to demonstrate
a substantial affect on interstate commerce. First, the Court held that because the act
was a criminal statute it did not, by definition, affect any sort of economic
enterprise.15 While previous cases have carved out an exception for criminal statutes
that arise out of or are connected to a larger regulatory scheme, the Court held that
the Gun Free School Zones Act did not qualify for this exception.16

Second, the Court found that the statute “contains no jurisdictional element
which would ensure, through a case-by-case inquiry, that the firearm possession in
question affects interstate commerce.”17 Here, the Court emphasized the statute’s
failure to connect possession of a firearm near a school with interstate commerce.
Relying on United States v. Bass, a 1971 case that overturned a firearm conviction
for failure to show a nexus to interstate commerce,18 the Court concluded that the
Gun Free School Zones Act was not sufficiently limited to “firearms possessions that
additionally have an explicit connection with or effect on interstate commerce.”19
Finally, the Court noted the absence of legislative findings with respect to the
statute’s effect on interstate commerce.20 While the Court noted that the Congress
is not formally required to make such findings, it 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.”21
The Court’s decision in Lopez represented the first time since 1937 that a statute
was held to be unconstitutional as exceeding Congress’s power under the Commerce
10Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981).
11Perez v. United States, 402 U.S. 146 (1971)
12Katzenbach v. McClung, 379 U.S. 294 (1964)
13Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
14Lopez, 514 U.S. at 560.
15Id. at 561.
16Id.
17Id.
18United States v. Bass, 406 U.S. 336, 347 (1971).
19Id. at 562
20Id.
21Id. at 563.

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Clause. It was not clear, however, whether the decision was limited to the specific
statute before the Court, or if the decision signaled a major shift in the Court’s
jurisprudence. In 2000, the Court again ruled on a case involving the limits of
Congress’s power under the Commerce Clause.
In United States v. Morrison,22 the Court invalidated 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.23 In evaluating the constitutionally of the statute the Court
determined that its holding in Lopez was the controlling precedent and proceeded to
apply its reasoning.
Applying Lopez, the Court first concluded that the activity regulated by the act
could not be classified as “economic activity.”24 This determination proved crucial
because characterizing the activity as non-economic in nature allowed the Court to
avoid applying the aggregation principle established by Wickard. The Court,
however, stopped short of establishing a rule that all non-economic activity cannot
be aggregated.25 Second, the Court considered whether the act contained a
jurisdictional element that would support the argument that a sufficient nexus existed
between gender-motivated violence and interstate commerce. The Court concluded
that similar to the statute in Lopez, the act contained no jurisdictional element
connecting a federal cause of action to Congress’s power to regulate interstate
commerce.26 Therefore, “Congress elected to cast § 13981's remedy over a wider,
and more purely intrastate, body of violent crime.”27
In Morrison, unlike in Lopez, there were numerous congressional findings,
however, the Court stressed that findings by the legislative branch merely serve to
illuminate the relationship between the regulation and interstate commerce, and as
such are not dispositive of the constitutionality of the regulation. Constitutionality,
according to the Court, ultimately turns on the legal aspects of the substantial effects
22 United States v. Morrison, 529 U.S. 598 (2000).
23 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).
24 Morrison, 529 U.S. at 613 (stating that “[g]ender-motivated crimes are not, in any sense
of the phrase, economic activity.”).
25 Id. (stating that “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.”).
26Id.
27Id.(stating that “whether particular operations affect interstate commerce to come under
the constitutional power of Congress to regulate them is ultimately a judicial rather than a
legislative question, and can be settled finally only by this Court.”) (internal citations and
quotation marks omitted).

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doctrine, and therefore, is for the Court to decide.28 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. According
to the Court, to accept the reasoning of Congress would supply the national
legislature 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.”29
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 therefore,
beyond the scope of Congress’s authority.30
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.31
Recent Lower Court Developments in Commerce Clause
Jurisprudence
In 2003, the Ninth Circuit Court of Appeals issued three separate decisions, each
holding portions of federal statutes regulating possession of child pornography, the
possession of certain firearms, and the possession of certain controlled substances
unconstitutional as beyond the scope of Congress’s authority to regulate interstate
commerce.
In United States v. McCoy, the federal government brought an indictment
charging Rhonda McCoy with violating 18 U.S.C. § 2252(a)(4)(B), which states
32that
28Id.
29Id. at 615.
30Id. 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.”).
31United States v. Stewart, 348 F.3d 1132, 1136-37 (9th Cir. 2003)(citing Morrison, 529 U.S.
at 610-12).
32United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003). Both Mr. and Mrs. McCoy were
charged with violating 18 U.S.C. § 2251(b) after photographs depicting Mrs. McCoy and
her daughter in sexually suggestive positions were reported to the U.S. Naval Criminal
Investigation Service. Id. After a trial in which Mr. McCoy was acquitted, the government
(continued...)

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(a) any person who . . .(4). . . (B) knowingly possesses 1 or more books,
magazines, periodicals, films, video tapes, or other matter which contain any
visual depiction that has been mailed, or has been shipped or transported in
interstate or foreign commerce, or which was produced using materials which
have been mailed or so shipped or transported, by any means including by
computer if –
(i) the producing of such visual depiction involves the use of a minor engaging
in sexually explicit conduct; and
(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.33
Mrs. McCoy challenged the portion of the statute authorizing punishment if the
depiction is made with objects that have traveled in interstate commerce as a
violation of Congress’s authority under the Commerce Clause.
A three judge panel of the Ninth Circuit Court of Appeals concluded that the
Morrison four part test was controlling in this situation and proceeded to analyze the
statute by applying those factors.34 The court began with the first factor, considering
whether the activity involved here was economic in nature. Mrs. McCoy argued that
under Morrison, the simple intrastate possession with no intent to distribute in
interstate commerce could not properly be characterized as commercial activity.35
On the other hand, the government relied not on Morrison, but rather on Wickard v.
Filburn, arguing that “the possession of such matter is the reason interstate
trafficking in such obscenity exists.”36 The government’s contention was that all
pictures of this type are a part of interstate commerce even if the picture was of a
defendant’s own child, locally produced, and solely for personal use. The court
concluded that the McCoy’s photograph and Filburn’s wheat were not analogous.37
The court argued that Filburn’s wheat competed with the interstate wheat market in
a way that contravened the intention of the Agriculture Act, while McCoy’s
photograph does not, according to the court, compete with or affect the interstate
child pornography market in any way. Thus, the court concluded that “simple
intrastate possession of home-grown child pornography not intended for distribution
or exchange is not in any sense of the phrase economic activity.”38
The court then shifted to the fourth Morrison factor, an analysis of the
attenuated effect. On this issue, the court concluded that the connection between
intrastate possession of child pornography and interstate commerce is too attenuated
32(...continued)
amended the charges against Mrs. McCoy to include a violation of 18 U.S.C. §
2252(a)(4)(B). Id.
3318 U.S.C. § 2252(a)(4)(B) (2003).
34See McCoy, 323 F.3d at 1117-19.
35Id. at 1120.
36Id. (citing Gov’t Br. at 13) (internal quotation marks omitted).
37Id. at 1122 (stating that “McCoy’s photograph is much farther removed from interstate
activity than Filburn’s wheat.”).
38Id. at 1122-23 (internal quotations and citations omitted).

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to warrant use of Congress’s commerce power. The government argued that
Congress’s authority can extend to intrastate activity if it determines “that doing so
is necessary to regulate the national market.”39 The court held that the statute in
question does not establish the type of “direct or substantial relationship necessary
to justify the invocation by Congress of its Commere power in order to regulate
intrastate criminal activity.”40
With respect to the remaining Morrison factors the court concluded that while
the statute in question does contain a sufficient jurisdictional element that alone will
not create the requisite basis for use of Congress’s Commerce power. Finally, the
court turned to the statute’s legislative history. The court concluded, however, that
“[a]t most the legislative history here tells us that Congress intended to eliminate the
interstate commercial child pornography market and nothing more.”41
Concluding that the statute as applied to Mrs. McCoy satisfied only one of the
four Morrison factors, the court declared it an unconstitutional exercise of Congress’s
Commerce power, and reversed the decision of the District Court.42
In United States v. Stewart, a licensed gun dealer was charged with five counts
of possession of a machinegun in violation of 18 U.S.C. § 922(o), which makes it
unlawful to “transfer or possess a machinegun.”43 As in Lopez, Morrison, and
McCoy, Stewart presented the court with a federal statute that, as applied to a specific
situation, tests the limits of Congress’s ability to regulate interstate commerce.
Previous courts had held that section 922(o) was constitutional because the regulation
may have substantially effected interstate commerce.44 In light of the Morrison
39Id. at 1123.
40Id. at 1124.
41Id. at 1127 (citing U.S. Dep’t of Justice, Attorney General’s Commission on Pornography:
Final Report (1986).
42It is important to note that this analysis and conclusion differs from the analysis and
conclusions reached by other federal circuit courts. For example, in both United States v.
Bauch, an Eighth Circuit decision, and United States v. Robinson, a First Circuit decision,
the rationale for upholding the statute as a constitutional exercise of the Commerce Clause
was the fact that the camera parts, such as the film, moved through interstate commerce and
therefore could provide a sufficient jurisdictional nexus to interstate commerce. See
generally, United States v. Bausch, 140 F.3d 739 (8th Cir. 1998) cert denied , 525 U.S. 1072
(1999); see also United States v. Robinson, 137 F.3d 652 (1st Cir. 1998). The Ninth Circuit
opinion distinguishes these cases on the basis that they were decided prior to Morrison and
therefore do not take into account the Supreme Court’s jurisprudence with respect to further
limits on the Commerce Clause. See McCoy, 323 F.3d at 1121-22.
43Id. at 1134 (citing 18 U.S.C. § 922(o) (2003)). Mr. Stewart was suspected by the Bureau
of Alcohol, Tobacco and Firearms (ATF) of selling parts kits that could be used to convert
rifles into unlawful machineguns in violation of federal law. While executing a search
warrant, ATF seized five machine guns that had been assembled by Mr. Stewart entirely at
home from what were apparently legal parts. See United States v. Stewart, 348 F.3d
1132,1133 (9th Cir. 2003).
44See United States v. Wright, 117 F.3d 1265, 1268-71 (1997); United States v. Rybar, 103
(continued...)

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factors, however, it appeared to this panel that this conclusion was no longer in
accordance with the Supreme Court’s interpretation of Congress’s commerce power.
Utilizing the same analysis adopted by the court in McCoy, the court began by
analyzing the first and fourth Morrison factors. The court concluded that this statute
was more like the statute struck down in Lopez, rather than the statute upheld in
Wickard. The court reasoned that “a homemade machinegun may be part of a gun
collection or may be crafted as a hobby. . . . Whatever its intended use, without some
evidence that it will be sold or transferred – and there is none here – its relationship
to interstate commerce is highly attenuated.”45 In addition, the court pointed out that
unlike the wheat regulation in Wickard there was no evidence that section 922(o) was
intended to regulate the commercial aspects of the machinegun business, but rather
to keep these types of guns out of the hands of criminals. With respect to the fourth
factor, attenuated effect, the court analogized the case to McCoy by concluding that
the guns in Stewart’s possession “functioned outside the commercial gun market.
His activities did not increase machinegun demand. Nor can we even say that
Stewart’s homemade machineguns reduced overall demand. . . . Thus, the link
between Stewart’s activity and its effect on interstate commerce is simply too tenuous
to justify federal regulation.”46
The court also discussed the statute’s failure to satisfy the other two Morrison
factors. The court pointed out the fact that the possession statute contained no
jurisdictional nexus, which indicated that it was not limited in anyway to interstate
commerce. In fact, the court went so far as to distinguish section 922(o) from other
federal firearms statutes on the grounds that other statutes utilize language connecting
the firearms to interstate commerce. According to the court, other firearms statutes
have used language dealing with “transactions, sales or deliveries of firearms, and
nearly all of the provisions specifically require that the transaction, sale, or delivery
be conducted interstate.”47 Further, the court pointed out that there were no
legislative findings indicating a connection between the statute and interstate
commerce. Instead, the legislative history, as referenced by the court, addressed the
need for additional law enforcement measures to prevent interstate and international
machinegun transactions. In light of the legislative history, the court was able to
conclude that
[n]othing in the legislative history suggests that Congress ever considered the
impact of purely intrastate possession of homemade machineguns on interstate
commerce, and there is no reason to assume that prohibiting local possession of
machineguns would have the same national and commercial consequences as
prohibiting the interstate and foreign traffic in firearms. We therefore cannot
44(...continued)
F.3d 273 276-85 (3d Cir. 1996); United States v. Kenney, 91 F.3d 884, 890-91 (7th Cir.
1996).
45Stewart, 348 F.3d at 1137.
46Id. at 1138.
47Id. at 1139 (emphasis in original).

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import these earlier legislative findings to give section 922(o) constitutional
grounding.48
Because the statute failed to address a commercial activity; provided an
attenuated link to interstate commerce; lacked a jurisdictional nexus; and did not
contain any legislative findings connecting its purpose to regulating interstate
commerce, the court concluded that Congress exceeded its commerce power when
it enacted section 922(o) making mere possession of a machinegun illegal.
The final case in this trilogy, Raich v. Ashcroft, involves a conflict between
California’s Compassionate Use Act49 and the Controlled Substances Act (CSA).50
The appellants in this case were individuals who grow and/or use marijuana for
medical purposes.51 They filed this suit seeking declaratory relief and an injunction
preventing the U.S. Attorney General from prosecuting them under the CSA based
on its unconstitutionality as applied to their specific situations.52 The court found that
the appellants demonstrated a strong likelihood of success on the claim that as
applied to them the CSA exceeds Congress’s Commerce Clause power.53
In reaching this conclusion the court first had to address the fact that the Ninth
Circuit had previously held the CSA constitutional in the face of Commerce Clause
challenges.54 To do this the court constructed a narrow definition of the “class of
activity” encompassed. The court cited the fact that none of the previous cases
involved the possession or cultivation of marijuana for medical purposes and
concluded that this type of use is more limited than either the broader illicit drug use,
48Id. at 1140.
49Cal. Health & Safety Code § 11362.5 (1996) (allowing the use of marijuana for medical
purposes upon the recommendation of a licensed physician).
5021 U.S.C. § 841(a)(1) (2003) (classifying marijuana as a schedule 1 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).
51According to the court one of the named defendants, Raich is unable to grow her own
marijuana, however, she receives the drug free of charge from two unnamed individuals who
intervened to protect Raich’s supply. Raich v. Ashcroft, 352 F.3d 1222, 1230 n.3 (9th Cir.
2003).
52Id. at 1224.
53Id. While the Supreme Court has previously addressed issues relating to the CSA in light
of California’s medical marijuana statute, it did not decide the case on Commerce Clause
grounds. See United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 494
n.7 (2001)(“Nor are we passing today on a constitutional question, such as whether the
Controlled Substances Act exceeds Congress’ power under the Commerce Clause”).
54See Raich, 352 F.3d at 1227 (citing United States v. Bramble, 103 F.3d 1475, 1479-80 (9th
Cir. 1996); United States v. Tisor, 96 F.3d 370, 375 (9th Cir. 1996); United States v. Kim,
94 F.3d 1247, 1249-50 (9th Cir. 1996); United States v. Visman, 919 F.2d 1390, 1393 (9th
Cir. 1990); United States v. Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir. 1977); United
States v. Rodriquez-Camacho, 468 F.2d 1220, 1222 (9th Cir. 1972)).

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or the broader commercial use.55 Having distinguished the activity in this case from
the precedent, the court, relying on McCoy, 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.”56
With this narrowly defined class of activity the court proceeded through the
Lopez/Morrison analysis, applying the four factor Morrison test. With respect to the
first factor, the court concluded that given the narrow class of activity 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.”57 This conclusion allowed the court to avoid the aggregation principle
established in Wickard. Thus, the court concluded, drawing on comparisons to the
photograph in McCoy, that the marijuana in this case was for personal use and was
in no way intended for the kind of sale or exchange that would make it commercial
in nature. Therefore, according to the court, the CSA does not satisfy the first
Morrison factor. Next, the court considered whether the CSA contains an express
jurisdictional element that would limit its reach to those cases that substantially effect
interstate commerce. With no 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.”58
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.59 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.60 In addition, the court referred
to language in Morrison, discussing the limited role of congressional findings.61
Moreover, the court referenced McCoy’s conclusion that the first and fourth prongs
55Raich, 352 F.3d at 1228 (stating that “this limited use is clearly distinct from the broader
illicit drug market – as well as any broader commercial market for marijuana – insofar as
the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream
of commerce.”).
56Id. at 1229.
57Id. at 1230.
58Id. at 1231 (citing County of Santa Cruz v. Ashcroft, 279 F. Supp. 2d 1192, 1209 (N.D.
Cal. 2003)).
59Id. 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.”).
60Id. at 1232.
61Id. (citing Morrison, 529 U.S. at 614).

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of the Morrison test – whether the statute regulates an economic enterprise and
whether the link is attenuated – are the most significant factors to the analysis.62
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,63 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.64
The above mentioned cases are not the only cases that have addressed the
constitutionality of these statutes, nor do they represent the only theories used by the
various circuits.65 These cases, however, appear to be the only appellate court cases
decided after the Supreme Court’s 2000 decision in United States v. Morrison. Thus,
these cases take into account precedent that the previous circuit courts did not
consider when issuing their rulings. The failure to consider Morrison, however, does
not mean that the results from the other circuits are any more or less valid, nor does
it require a different conclusion. It merely provides a way of distinguishing the
results from the present cases. In fact, the absence of a genuine circuit split on the
application of the Commerce Clause to these statutes may lead the Supreme Court
to require more decisions by different circuit courts before a case of this type is
granted certiorari.
Potential Implications for Congress’s Power to Regulate
Under the Commerce Clause
While each of the cases discussed above involved different federal statutes,
there are similarities in the analysis and application of the standards that may need
to be addressed by the Supreme Court. A review of these cases presents two
potential areas of tension within Commerce Clause jurisprudence that the Supreme
Court may attempt to clarify. First, the Court may wish to more clearly define or
establish standards assisting both the Congress and the lower federal courts with
62Id. at 1232-33 (citing McCoy, 323 F.3d at 1119).
63Id. 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)).
64Id.
65For an example of an alternative theory on the commerce clause, see United States v.
Angle, 234 F.3d 326, 337-38 (7th Cir. 2000) (adopting a “market theory” approach and
reasoning that “[b]y outlawing the purely intrastate possession of child pornography in §
2252(a)(4)(B), Congress can curb the nationwide demand for these materials. We believe
that such possession, ‘through repetition elsewhere,’ helps to create and sustain a market for
sexually explicit materials depicting minors.”); see also United States v. Rodia, 194 F.3d
465 (3d Cir. 1999), cert denied, 529 U.S. 1131 (2000) (holding 18 U.S.C. § 2251(a)(4)(B)
constitutional);United States v. Kenney, 91 F.3d 884, 890-91 (7th Cir. 1996) (holding 18
U.S.C. § 922(o) constitutional); United States v. Bramble, 103 F.3d 1475, 1479-80 (9th Cir.
1996) (holding the federal Controlled Substances Act constitutional).

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respect to what types of activities can be classified as “non-economic” in nature.
Second, the Court may decide to examine and further develop standards with respect
to the circumstances when the expansive aggregation theory established in Wickard
v. Filburn applies, as opposed to the more restrictive interpretation of the Commerce
Clause utilized in both Lopez and Morrison.
That a distinction between economic and non-economic activity can be drawn
is asserted by the Court in Lopez without any clear analysis establishing criteria for
determining the difference. The Court merely asserts that “the possession of a gun
in a local school zone is in no sense an economic activity that might through
repetition elsewhere, substantially effect interstate commerce,” and then concludes
that a sufficient connection to interstate commerce does not exist. Likewise in
Morrison, the Court simply proclaims, without analysis, that “[g]ender motivated
crimes of violence are not, in any sense of the phrase economic activity” and
proceeds through its four factor test. The lack of apparent standards for
distinguishing economic activity from non-economic activity, has arguably allowed
the lower courts to characterize mere possession of contraband as “non-economic”
behavior and thus, beyond the jurisdiction of Congress. Whether this
characterization holds across the wide range of federal statutes that attempt to punish
mere possession of contraband is unclear. What appears to be clear, however, is that
if the Supreme Court accepts the lower court’s conclusion that mere possession of
contraband is non-economic behavior, then the ramifications on Congress’s power
under the Commerce Clause could be substantial.
In addition to the federal statutes punishing possession of child pornography,
certain firearms, and certain controlled substances, Congress has enacted similar
possession laws with respect to a wide variety of activities, including, but not limited
to biological weapons,66 nuclear materials,67 obscene materials,68 and federal badges,
identification cards, and other insignia.69 All of these statutes were likely enacted
pursuant to Congress’s Commerce Clause power. Should the Supreme Court accept
the rationale that mere intrastate possession is beyond the power to Congress to
regulate, statutes such as these would likely have to be reconsidered and amended to
conform with the Court’s ruling. Each of these statutes, like the statutes in McCoy,
Stewart, and Raich, is susceptible to a narrow reading that distinguishes intrastate
possession with no involvement in commerce, from the commercial activity that
would invoke federal jurisdiction. For example, it is possible that a home scientist
could create a prohibited biological weapon in his home with no intent to engage in
its sale or distribution. Under the Ninth Circuit’s reading of Lopez and Morrison,
federal prosecution for violation of 18 U.S.C. § 175, would likely be
unconstitutional, as Congress’s power under the Commerce Clause does not extend
to mere intrastate possession. Clearly, the federal government has an interest in
prosecuting this type of behavior, and the consequences of waiting for a sale or other
“commercial activity” could be disastrous. It is important to note that the activity
6618 U.S.C. § 175 (2003).
6718 U.S.C. § 831 (2003).
6818 U.S.C. § 1466 (2003).
6918 U.S.C. § 701 (2003).

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would likely be illegal and punishable under state law, but the states may not always
possess the expertise, manpower, or financial resources to effectively track down and
prosecute such behavior. Thus, if the Court were to adopt the restrictive reasoning
of these rulings, Congress would either have to locate another source of federal
power to justify its actions, or amend the statute to contain the necessary connection
to “commercial activity” and interstate commerce.
A review of alternative sources of federal power that may allow Congress to
regulate the mere intrastate possession of contraband reveals very limited options.
Because the courts have rarely found it necessary to look beyond the Commerce
Clause, the case law on alternative sources of legislative authority is sparse. The
cases, however, do include a reference to the Treaty Clause in Article VI, which
makes international agreements signed by the President and ratified by the Senate,
the “supreme law of the Land.”70 Thus, to the extent that the United States has treaty
obligations regarding a specific type of contraband, it appears that this clause could
be used to regulate intrastate possession. To date, however, it appears that this clause
has only been cited with respect to narcotics laws.71
In addition, there is the possibility of using the Spending Clause72 combined
with the Necessary and Proper Clause73 to regulate possession. While there do not
appear to be any cases directly on point with respect to using the taxing and spending
power to regulate intrastate possession, the Supreme Court in Sabri v. United States74
recently held that Congress has general authority under the Spending Clause in
conjunction with the Necessary and Proper Clause of the Constitution to enact
criminal legislation.75 Given that this case involved allegations of bribery and fraud,
it is not clear whether this authority under the Spending Clause would extend to
70See U.S. CONST. Art. VI., cl.2.
71See United States v. Rodriquez-Camacho, 468 F.2d 1220, 1222 (9th Cir. 1972) ( stating
that “the United States is a party to the Single Convention on Narcotic Drugs binding, inter
alia, all signatories to control persons and enterprises engaged in the manufacture, trade and
distribution of specified drugs. Marijuana (cannabis) is so specified. Enactment of §
841(a)(1) is a permissible method by which Congress may effectuate the American
obligation under the treaty.”).
72U.S. CONST. Art. 1, § 8, cl. 1 (stating that “Congress shall have the Power to . . . pay the
Debts and provide for the common Defense and general welfare.”)).
73U.S. CONST. Art. 1, § 8, cl. 18 (providing Congress with the power “[t]o make all laws
which shall be necessary and proper for carrying into execution the foregoing powers, and
all other powers vested by this Constitution in the government of the United States, or in any
department or officer thereof.”).
74Sabri v. United States, 124 S. Ct. 1941 (2004).
75Id. at 1946. (stating that “Congress has authority under the Spending Clause to appropriate
federal monies to promote the general welfare, Art. I, § 8, cl. 1, and it has corresponding
authority under the Necessary and Proper Clause, Art. I, § 8, cl. 18, to see to it that taxpayer
dollars appropriated under that power are in fact spent for the general welfare, and not
frittered away in graft or on projects undermined when funds are siphoned off or corrupt
public officers are derelict about demanding value for dollars.”).

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include mere intrastate possession of contraband. If, however, an effect on the
federal financial welfare can be demonstrated, it appears possible that the Spending
Clause could be cited as an alternative source of power to the Commerce Clause. It
may also be possible to interpret the Court’s decision in Sabri as suggesting that the
Necessary and Proper Clause associated with other Article I powers could have the
potential of filling gaps left by a restrictive interpretation of the Commerce Clause.
Presently, however, there appear to be no federal cases suggesting that such a use of
the Necessary and Proper Clause would be proper.
The second potential area of Commerce Clause jurisprudence that the Court
could look to clarify is under what circumstances the expansive aggregation theory
from Wickard v. Filburn may be utilized. Currently, lower courts appear to be
relying on the language in Morrison declining to establish a rule prohibiting the
aggregation of the effects of non-economic activity,76 as a means of distinguishing
Wickard. It is not clear, however, that this interpretation is necessarily what the
Court intended as it appears to create a two step analysis for avoiding Wickard: first,
define the activity in such a way as to make it non-economic, and; second, refuse to
aggregate the substantial effects, thereby finding the law unconstitutional.
Since Wickard was cited favorably in both Lopez and Morrison, it has not been
overturned and thus, is still controlling law. Should the Court decide to overturn
Wickard, it would make it difficult to justify any congressional action that regulates
mere intrastate possession as there would be no mechanism in place that would allow
the Court to consider the effects, substantial or otherwise, of the activity on interstate
commerce. Should this occur, Congress would effectively be stripped of a
tremendous amount of regulatory power, and would be forced to either amend
numerous pieces of legislation, or find an alternative source of authority. Such a
decision could extend far beyond the intrastate possession cases and possibly calls
into question the entire body of “substantial effects” case law. While this option
remains possible, it does not appear likely that the Court will overturn Wickard.
Rather, it appears more likely that the Court will attempt to more closely define the
types of situations where the Wickard test applies. This option arguably preserves
the outer limits of the commerce power, and allows the Court the ability to more
closely define where the boundary lies.
While it is impossible to predict precisely where the Court would draw the line,
it appears conceivable that it could construct the standard in such a way that would
preserve Congress’s ability to regulate the intrastate possession of contraband where
a definable national market exists, such as with respect to child pornography,
firearms, and controlled substances, without extending to the federal government the
ability to regulate hobbies, collections, or other forms of purely intrastate, non-
commercial activity. Alternatively, it appears possible for the Court to expand
Wickard’s application to permit the substantial effects of activities to be considered
even with respect to non-economic behavior. This interpretation, if adopted, would
arguably expand Congress’s authority under the Commerce Clause back in the
direction that it was prior to Lopez and Morrison.
76Morrison, 529 U.S. at 613.