Constitutional Law Scholar and Commerce Clause Expert Professor Randy Barnett in Support of Appellees and Affirmance of the District Court’S Order

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No. 20-1422 In the United States Court of Appeals for the Third Circuit ______UNITED STATES OF AMERICA, Appellant,

SAFEHOUSE, a Pennsylvania nonprofit corporation; JOSE A. BENITEZ, as President and Treasurer of Safehouse, Appellees. ______SAFEHOUSE, a Pennsylvania nonprofit corporation, Appellee,

U.S. DEPARTMENT OF JUSTICE; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; and WILLIAM M. McSWAIN, in his official capacity as U.S. Attorney for the Eastern District of Pennsylvania, Appellants.

On Appeal from the United States District Court for the Eastern District of Pennsylvania No. 19-cv-519 District Judge Gerald A. McHugh

AMICUS CURIAE BRIEF OF CONSTITUTIONAL LAW SCHOLAR AND COMMERCE CLAUSE EXPERT PROFESSOR RANDY BARNETT IN SUPPORT OF APPELLEES AND AFFIRMANCE OF THE DISTRICT COURT’S ORDER

Catherine M. Recker Thomas V. Loran III Amy B. Carver Nida Vidutis WELSH & RECKER, PC PILLSBURY WINTHROP SHAW PITTMAN LLP 2000 Market Street, Suite 2903 Four Embarcadero Center, 22nd Floor Philadelphia, PA 19103 San Francisco, CA 94111 (215) 972-6430 (415) 983-1000 Attorneys for Amicus Curiae Randy Barnett

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TABLE OF CONTENTS Page

TABLE OF CONTENTS ...... i TABLE OF AUTHORITIES ...... iii INTEREST OF AMICUS CURIAE ...... 1 SUMMARY OF ARGUMENT ...... 3 ARGUMENT ...... 5 I. THE “WITHOUT COMPENSATION” PORTION OF SECTION 856(a)(2) OF THE CONTROLLED SUBSTANCES ACT IS UNCONSTITUTIONAL ON ITS FACE ...... 5 A. Congress Cannot Regulate the Non-Compensated Activity Included in Section 856(a)(2) Because It Is Noneconomic, Wholly Intrastate Activity ...... 7 1. Section 856 Lacks a Jurisdictional Element That Would Indicate its Nexus with Interstate Commerce ...... 8 2. The Substantial Effects Test Does Not Apply Because the Non- Compensated Activity Included in Section 856(a)(2) Is Noneconomic and Is Not Subject to the Aggregation Principle of Wickard v. Filburn ...... 9 B. Congress Cannot Regulate the Non-Compensated Activity Included in Section 856(a)(2) Because It Is Not Essential to a Larger Regulatory Scheme ...... 15 1. Neither Section 856(a)(2) Nor its Legislative History Contains Express Congressional Findings Regarding the Effects on Interstate Commerce ...... 17 2. Congress Has No Rational Basis to Conclude That Managing and Controlling a Place and Making that Place Available to Others Without Compensation Undercuts the CSA ...... 21 3. Unlike Raich, the Provision of the CSA at Issue Here is Facially Unconstitutional ...... 25 II. SECTION 856(a)(2) CAN BE INTERPRETED TO AVOID ANY CONSTITUTIONAL ISSUES ...... 27 A. The Government’s Interpretation of Section 856(a)(2)’s Prohibition of Uncompensated Activity is Facially Unconstitutional but the Court Can Construe the Statute to Avoid the Constitutional Issue Altogether ...... 27

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B. Local Governments Have Authority to Regulate Public Health and Safety ...... 29 CONCLUSION ...... 31

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TABLE OF AUTHORITIES

Page(s) Cases

Bond v. United States, 572 U.S. 844 (2014) ...... 29, 30

Gibbons v. Ogden, 22 U.S. 1 (1824) ...... 5

Gonzales v. Raich, 545 U.S. 1 (2005) ...... passim

Goudy-Bachman v. U.S. Dep’t of Health & Human Servs., 811 F. Supp. 2d 1086 (M.D. Pa. 2011) ...... 20

Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208 (3d Cir. 2018) ...... 27

Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985) ...... 30

Jones v. United States, 529 U.S. 848 (2000) ...... 29

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ...... 13, 14

United States v. Davis, 588 U.S. __, *7 (2019) ...... 27

United States v. Flemming, 617 F.3d 252 (3d Cir. 2010) ...... 27

United States v. Kukafka, 478 F.3d 531 (3d Cir. 2007) ...... 8

United States v. Lopez, 514 U.S. 549 (1995) ...... passim

United States v. McGuire, 178 F.3d 203, 210 (3d Cir. 1999) ...... 13

iii

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United States v. Morrison, 529 U.S. 598 (2000) ...... passim

United States v. Safehouse, 408 F. Supp. 3d 583 (E.D. Pa. 2019) ...... 11, 20, 24 United States v. Santos, 553 U.S. 507 (2008) ...... 27

United States v. Walker, 657 F.3d 160 (3d Cir. 2011) ...... 8

Wickard v. Filburn, 317 U.S. 111 (1942) ...... 13, 14

Constitutions United States Constitution Article I, Section 8, cl. 3 ...... 5

Statutes and Codes United States Code Title 18, Section 2261(a)(1) ...... 7

United States Code Title 21, Section 801 ...... 13

United States Code Title 21, Section 801(2) ...... 15

United States Code Title 21, Section 801(3) ...... 15

United States Code Title 21, Section 801(4) ...... 15

United States Code Title 21, Section 801(5) ...... 17

United States Code Title 21, Section 801(6) ...... 15

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United States Code Title 21, Section 856 ...... passim

United States Code Title 21, Section 856(A)(2) ...... passim

United States Code Title 21, Section 885(d) ...... 22

United States Code Title 21, Section 903 ...... 22

United States Code Title 42, Section 18091(2)(H) ...... 14

Other Authorities Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat 3207 (1986) ...... 13

Beau Kilmer et al., Rand Corp., Considering Heroin-Assisted Treatment and Supervised Drug Consumption Sites in the United States 31-38 (2018), https://www.rand.org/content/dam/rand/pubs/research_reports/RR2 600/RR2693/RAND_RR2693.pdf ...... 19

Chloe Potier et al., Supervised injection services: What has been demonstrated? A systematic literature review, 145 Drug & Alcohol Dependence, Results 48 (2014) ...... 18

Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (1970) ...... 13

H.R. Rep. No. 91-1444 (1970) ...... 18

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INTEREST OF AMICUS CURIAE1

Amicus curiae, Professor Randy Barnett, is a law professor and scholar

engaged in researching and teaching constitutional law. Professor Barnett is the

Carmack Waterhouse Professor of Legal Theory at the Georgetown University

Law Center, where he teaches constitutional law, and is the Director of the

Georgetown Center for the Constitution. A recipient of a Guggenheim Fellowship

in Constitutional Studies, Professor Barnett has been a visiting professor at the

University of Pennsylvania, Northwestern University, and Harvard Law School.

Professor Barnett has published multiple books and over one hundred articles and reviews on constitutional law issues. His constitutional law casebook,

Constitutional Law: Cases in Context (Wolters Kluwer, 3d ed. 2017), is widely used in law schools throughout the country. Much of his scholarship, including his books Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d ed. 2014) and An Introduction to Constitutional Law: 100 Supreme Court Cases

Everyone Should Know (Wolters-Kluwer, 2019), is focused specifically on both the original meaning of the Commerce and Necessary and Proper Clauses and the post-New Deal doctrine governing these powers.

1 No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae or his counsel made a monetary contribution to this brief’s preparation or submission. 1

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In 2004, Professor Barnett argued the Commerce and Necessary and Proper

Clause case of Gonzales v. Raich, 545 U.S. 1, 24 (2005), before the Supreme Court of the United States. In 2012, he represented the National Federation of

Independent Business in its constitutional challenge to the Affordable Care Act, having developed the Commerce and Necessary and Proper Clause analysis.

This brief addresses issues that are within amicus’s particular area of scholarly expertise. Amicus, as a professor of constitutional law, has an interest in an accurate understanding of the Supreme Court’s post-New Deal doctrines governing the scope of Congress’s Commerce and Necessary and Proper Clause powers. These doctrines, properly understood, are directly applicable to the facts of this case and necessarily inform any application of the doctrine of constitutional avoidance.

Amicus files this brief pursuant to Rule 29(a)(2) of the Federal Rules of

Appellate Procedure. All parties have consented to the filing of this amicus curiae brief.

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SUMMARY OF ARGUMENT

Section 856(a)(2) prohibits the wholly intrastate, noneconomic, not-for- profit activity of managing or controlling a place and making that place available for use by others for the consumption of controlled substances. The Department of

Justice argues that Section 856(a)(2) of the Controlled Substances Act (“CSA”) applies to safe consumption rooms like the ones Safehouse seeks to establish and operate. Section 856(a)(2) is facially unconstitutional: it regulates activity performed “without compensation,” exceeding Congress’s enumerated and delegated powers under the Commerce and Necessary and Proper Clauses.

Under existing Supreme Court doctrine implementing both the Commerce and Necessary and Proper Clauses, Congress may regulate: (1) the use of channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; (3) intrastate economic activity that, in the aggregate, substantially affects interstate commerce; and (4) intrastate economic or noneconomic activity—if such regulation is an essential part of a larger regulatory scheme of interstate commerce, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.

None of these categories provides Congress with the power to regulate making a space available without compensation for others to consume controlled substances. Such activity is wholly intrastate in nature. It does not use or pose any

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threat to instrumentalities of interstate commerce. In fact, the activity is not

“economic” activity at all under the definitions developed in Commerce Clause

jurisprudence; therefore, it may not be regulated on the ground that, in the

aggregate, it affects interstate commerce. Nor did Congress have any rational basis

to conclude that a failure to regulate such actions taken “without compensation”

would undercut the Controlled Substances Act’s larger regulatory scheme (and

Congress has never adopted findings to that effect). Finally, Section 856 lacks a

jurisdictional element limiting the reach of the law to a discrete set of activities that

have an explicit connection with or effect on interstate commerce.

Under the Department of Justice’s interpretation of the text of Section

856(a)(2), the portion of Section 856(a)(2) that regulates the described activity

“without compensation” is facially unconstitutional. To avoid invalidating Section

856(a)(2) as unconstitutional, the Court may adopt a saving construction: the “with or without compensation” language establishes a prima facie case of criminal liability, which can be rebutted by evidence that the accused was acting without compensation and was therefore not engaged in economic activity.

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ARGUMENT

I. THE “WITHOUT COMPENSATION” PORTION OF SECTION 856(a)(2) OF THE CONTROLLED SUBSTANCES ACT IS UNCONSTITUTIONAL ON ITS FACE

The Department of Justice (“DOJ”) contends that 21 U.S.C. § 856(a)(2), a section of the Controlled Substances Act (“CSA”), applies to the consumption rooms Safehouse seeks to establish and operate. Compl. ¶ 15. But Section

856(a)(2), which expressly criminalizes the management or control “without compensation” of a place used for controlled substance consumption, exceeds

Congress’s power under the Commerce and Necessary and Proper Clauses and is therefore unconstitutional on its face.

The relevant portion of Section 856(a)(2) makes it unlawful to:

. . . manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally . . . make available for use, . . . without compensation, the place for the purpose of unlawfully . . . using a controlled substance.

21 U.S.C. § 856(a)(2) (emphasis added).

The Constitution gives Congress the power “[t]o regulate Commerce . . . among the several States[.]” U.S. Const. art. I, § 8, cl.3; see Gibbons v. Ogden, 22

U.S. 1, 189-90 (1824). Modern Commerce Clause jurisprudence only allows

Congress to regulate activities that are related to interstate commerce in one of four

ways. “First, Congress may regulate the use of the channels of interstate

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commerce.” United States v. Morrison, 529 U.S. 598, 609 (2000) (citing United

States v. Lopez, 514 U.S. 549, 558 (1995)). “Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce.” Id. Third, under its Necessary and Proper Clause powers, Congress may regulate wholly intrastate economic activities that, in the aggregate, “substantially affect interstate commerce.” Id. Fourth, and also under its Necessary and Proper Clause powers, Congress may regulate wholly intrastate, noneconomic activity, provided it is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at 561; see also Gonzales v.

Raich, 545 U.S. 1, 24 (2005); see id. at 36-38 (Scalia, J., concurring).

Section 856(a)(2), which regulates in part the wholly intrastate, noneconomic activity of making a place available for using a controlled substance, without compensation, does not fall into any of these four categories. Neither of the first two is pertinent where, as here, Safehouse’s conduct regulated by Section

856(a)(2) is wholly intrastate, and neither uses nor harms an instrumentality of commerce. As for the third, only intrastate activities that are “economic” in nature may be regulated under the “substantial effects” doctrine, and the activity regulated by the challenged portion of Section 856(a)(2) does not constitute “economic” activity under any definition developed in Commerce Clause jurisprudence.

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Finally, the portion of Section 856(a)(2) that applies to actions taken “without

compensation” is not essential to the CSA’s larger regulation of economic activity.

Therefore, the portion of Section 856(a)(2) that applies to actions taken “without compensation” is facially unconstitutional because it exceeds Congress’s enumerated and delegated powers under the Commerce Clause and the Necessary and Proper Clause.

A. Congress Cannot Regulate the Non-Compensated Activity Included in Section 856(a)(2) Because It Is Noneconomic, Wholly Intrastate Activity

“The Constitution requires a distinction between what is truly national and

what is truly local.” Morrison, 529 U.S. at 617-18; see also Lopez, 514 U.S. 567-

68. It is well settled that Congress may only regulate intrastate activities that substantially affect interstate commerce if those activities are economic in nature.

Morrison, 529 U.S. at 610; Lopez, 514 U.S. at 560. But Section 856(a)(2) regulates the wholly intrastate, noneconomic activity of making a place available

for using a controlled substance, “without compensation.” See

21U.S.C.§856(a)(2). Therefore, the substantial effects doctrine does not apply, and

the “without compensation” language in Section 856(a)(2) is unconstitutional on

its face.

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1. Section 856 Lacks a Jurisdictional Element That Would Indicate its Nexus with Interstate Commerce

As an initial matter, Section 856 lacks “a jurisdictional element limiting the

reach of the law to a discrete set of activities that additionally has an explicit

connection with or effect on interstate commerce.” United States v. Walker, 657

F.3d 160, 178 (3d Cir. 2011); United States v. Kukafka, 478 F.3d 531, 535 (3d Cir.

2007). Where, as here, a Congressional statute threatens to regulate purely

intrastate conduct, the Court may consider the lack of a jurisdictional element in a

Congressional statute in deciding that a statute exceeds Congress’s authority under

the Commerce Clause. See Lopez, 514 U.S. at 561-62; Morrison, 529 U.S. at 611-

12.

A jurisdictional element “lend[s] support to the argument that [the statute] is sufficiently tied to interstate commerce to come within Congress’ authority.”

Morrison, 529 U.S. at 613 (noting that the criminal provision of the Violence

Against Women Act, 18 U.S.C.§2261(a)(1), contains a jurisdictional element that has been uniformly upheld); see also Lopez, 514 U.S. at 561-62 (stating a jurisdictional element would ensure that possession of a firearm “affects interstate commerce”).

The Lopez and Morrison Courts considered the lack of an express jurisdictional element in overturning the respective statutes in those cases. See

Lopez, 514 U.S. at 561-62 (focusing on the lack of any express jurisdictional

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element); accord Morrison, 529 U.S. at 613 (ruling the statute in question, as in

Lopez, “contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’s power to regulate interstate commerce”).

As with the statutes at issue in Morrison and Lopez, Section 856 lacks a jurisdictional element limiting it to items or activities that are part of or have a connection with interstate commerce. It therefore reaches the wholly intrastate activity of making a place available, without compensation, for the use of a controlled substance. See 21 U.S.C. § 856.

While absence of a jurisdictional element is not dispositive, without one, it falls to the judicial branch to reach its own conclusion about whether the type of activity controlled by statute is too remote to the regulation of interstate commerce.

Cf. Morrison, 529 U.S. at 615 (observing that legislative findings regarding the impact of the regulated conduct were “substantially weakened by the fact that they rely on reasoning that this Court has rejected, namely, a but-for causal chain from the [regulated conduct] to every attenuated effect upon interstate commerce”). We now turn to that analysis.

2. The Substantial Effects Test Does Not Apply Because the Non- Compensated Activity Included in Section 856(a)(2) Is Noneconomic and Is Not Subject to the Aggregation Principle of Wickard v. Filburn

Because the activity described in Section 856(a)(2) is noneconomic, the

“substantial effects” doctrine, identified in Lopez and Morrison as the third theory

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by which Congress may reach wholly intrastate activity, is not applicable here.

Neither is the aggregation principle that originated in Wickard v. Filburn.

In Morrison and Lopez, because the statutes at issue lacked a jurisdictional element, the Court looked to whether the intrastate activity in question was noneconomic in nature. See Morrison, 529 U.S. at 613, 618 (holding that

Congress lacked Commerce Clause authority to enact a statute prohibiting gender-

motivated violent crimes because the statute applied to purely intrastate

noneconomic activity, even when Congress found that such crimes affected

interstate commerce); Lopez, 514 U.S. at 561 (invalidating a gun-possession statute which sought to control “purely intrastate” noneconomic activity).

The Court designed the distinction between economic and noneconomic

activity to ensure that Congress did not regulate activity too remote from its power

to regulate interstate commerce. See Raich, 545 U.S. 35-36 (Scalia, J., concurring)

(“In Lopez and Morrison, the Court—conscious of the potential of the

‘substantially effects’ test to ‘obliterate the distinction between what is national

and what is local’—rejected the argument that Congress may regulate

noneconomic activity based solely on the effect that it may have on interstate

commerce through a remote chain of inferences.” (internal citations omitted)).

The type of activity described in Section 856(a)(2) is noneconomic, and thus

too remote from Congress’s power to regulate interstate commerce. The most

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recent—and expansive—definition of “economic” activity adopted in Commerce

Clause jurisprudence considers economic activity to include “the production,

distribution, and consumption of commodities.” Raich, 545 U.S. at 25-26 (relying

on the Webster’s dictionary definition of “economics”).2 The portion of Section

856(a)(2) being enforced in this case concerns the managing, controlling or making available “without compensation” an area for use of a controlled substance.3 This conduct involves neither the production, nor distribution, nor

consumption of commodities. Making a property available on an entirely local,

non-commercial basis for drug use thus does not constitute activity of an

“economic” nature under the definition provided in Raich.

2 In Raich, the Court did not disclaim the economic-noneconomic distinction limit on the applicability of the “substantial effects” doctrine it had adopted in Lopez and Morrison. Instead, it sought to adhere to it by providing the Webster's dictionary definition of “economic” activity for purposes of Commerce Clause jurisprudence. 3 The facts of this case support a facial challenge to the “without compensation” language of Section 856(a)(2) because the entirety of Safehouse’s conduct is “without compensation.” Safehouse is a non-profit corporation. Its operation will generate no fees, nor produce any revenue, nor engage in any kind of commerce. Safehouse will not charge participants for its overdose prevention services; will not manufacture, sell, or administer unlawful drugs; will not permit the distribution or sale of drugs on site; will not provide any of its services across state lines; will not permit the exchange of any currency; will not allow participants to share consumption equipment or help another person consume drugs; and will not allow staff to handle illegal drugs or help participants consume drugs. See United States v. Safehouse, 408 F. Supp. 3d 583, 586 (E.D. Pa. 2019).

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Because Section 856(a)(2) reaches activity that is noneconomic in nature,

Lopez and Morrison bar Congress and the government from invoking the

“substantial effects” doctrine and the aggregation principle of Wickard to justify

the statute as within the power of Congress to regulate interstate commerce. In

fact, by expressly targeting non-compensated uses of property, Section 856(a)(2) is

written to capture conduct that lacks “an explicit connection with or effect on

interstate commerce.” See Lopez, 514 U.S. at 562. The “without compensation”

portion of Section 856(a)(2) is therefore unconstitutional on its face.

Holding Section 856(a)(2) to be unconstitutional on its face is necessary to vindicate fundamental principles of federalism. “The Constitution requires a distinction between what is truly national and what is truly local.” Morrison, 529

U.S. at 617. The regulation of intrastate health and safety and medical services has always been the province of the States. See, e.g., Lopez, 514 U.S. at 566 (“The

Constitution . . . withhold[s] from Congress a plenary police power”); id. at 584-

85 (Thomas, J., concurring) (noting that “we always have rejected readings of the

Commerce Clause and the scope of federal power that would permit Congress to exercise a police power”).

The breadth with which Section 856(a)(2) can be applied to infringe upon the States’ health regulation and policing powers affirms the statute’s constitutional inadequacies. Under the government’s reading of the statute,

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Congress would not only have the power to prohibit Safehouse from engaging in the noneconomic activity of allowing individuals to consume drugs on the property

Safehouse manages “without compensation.” Congress could prohibit a parent from the noneconomic activity of allowing his adult son to consume any controlled substance in the parent’s residence “without compensation.”4 In fact, were

Congress able to reach this noneconomic activity, “it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement . . . where States historically have been sovereign.” Morrison, 529 U.S. at 612-13. In this way, Section 856(a)(2) exemplifies how the regulation of purely noneconomic activity is too remote to the regulation of interstate commerce to be a “necessary” exercise of Congressional power under the Necessary and Proper Clause.

Because the “without compensation” portion of Section 856(a)(2) regulates noneconomic activity, the aggregation principle of Wickard v. Filburn, 317 U.S.

111 (1942), does not apply. “Wickard has long been regarded as ‘perhaps the most

far reaching example of Commerce Clause authority over intrastate activity.’”

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 552 (2012) (citing Lopez, 514

4 As the Third Circuit has recognized, “[e]ven such a seemingly parochial action as borrowing a cup of sugar from a neighbor can be viewed as part of the stream of commerce that extends to refineries overseas.” United States v. McGuire, 178 F.3d 203, 210 (3d Cir. 1999). But “such an inconsequential effect can[not] support the exercise of federal jurisdiction over a purely intrastate concern without obliterating the distinctions between state and federal jurisdiction.” Id. 13

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U.S. at 560). In Wickard, the Supreme Court upheld a federal penalty against a farmer for growing wheat for use on his own farm, holding that Congress’s power

“is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.” Id. at 549 (citing Wickard, 317 U.S. at 127-28).

The Court rejected the argument that growing wheat solely for use on the farm was beyond the reach of the Commerce power on the ground that the decision to grow wheat to feed their own livestock allows farmers to avoid purchasing wheat in the marketplace, lowering the interstate price of wheat that the regulatory scheme was designed to maintain. Wickard, 317 U.S. at 128-29. “That decision, when considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.” Nat’l Fed’n of Indep. Bus.,

567 U.S. at 552.5

5 By contrast, to uphold the marketing order in Wickard, the Court distinguished between the use of wheat “for feed, seed, and food,” Wickard, 317 U.S. at 125, and minimized the effect on interstate commerce of using home grown wheat for personal food consumption. See id. at 127: The effect of consumption of home-grown wheat [for feed] on interstate commerce is [that] it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 percent of average production. The total amount of wheat consumed as food varies but relatively little . . . . It can hardly be denied that a factor of such volume and variability as home-consumed wheat [for feed] would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market, and, if

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Per Lopez and Morrison, the substantial effects doctrine—and inter alia its aggregation principle from Wickard—applies only to intrastate economic activity.

Here, there is no economic activity to aggregate because the portion of the statute under challenge does not purport to regulate economic activity at all. Therefore, even assuming the wholly intrastate and non-compensated “manage[ment] or control of a place” and the making of such a place “available for use” by others does have a substantial effect on interstate commerce, Congress may not regulate it. See Morrison, 529 U.S. at 617-18.

B. Congress Cannot Regulate the Non-Compensated Activity Included in Section 856(a)(2) Because It Is Not Essential to a Larger Regulatory Scheme

Raich recognizes a fourth most recently developed theory by which

Congress may regulate wholly intrastate activity. There, the Supreme Court held that Congress may regulate wholly intrastate noneconomic activity only if such regulation is “an essential part of a larger regulation of economic activity, in which

induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home- grown wheat in this sense competes with wheat in commerce. Unlike the consumption of wheat as bread at the family table, the cultivation and use of wheat on the farm for feeding livestock is the epitome of economic activity. 15

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the regulatory scheme could be undercut unless the intrastate activity were

regulated.” Raich, 545 U.S. at 24.

Accordingly, the Supreme Court held in Raich that Congress may criminalize the production and consumption of home-grown marijuana, even where states approve it for medicinal use. Id. at 5. The Court concluded that the regulation of the intrastate manufacture and possession of marijuana was an essential part of a larger regulatory scheme that would be undercut unless the intrastate activity were regulated, id. at 22, 24-25, based in part on a finding that

“Congress had a rational basis for believing that a failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA,” id. at 22.

Here, there are no congressional findings explaining why the non- compensated activity governed by Section 856(a)(2) is essential to the larger regulatory scheme. Nor does Congress have a rational basis for finding any nexus

between the operation of non-compensated consumption sites and increased drug

usage or trafficking: in fact, currently available studies conclude that such sites

decrease illegal narcotics usage and sales, as discussed below.

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1. Neither Section 856(a)(2) Nor its Legislative History Contains Express Congressional Findings Regarding the Effects on Interstate Commerce

As in Lopez, neither Section 856(a)(2) “nor its legislative history contains express congressional findings regarding the effects upon interstate commerce of

[the conduct at issue].” See Lopez, 514 U.S. at 562 (citations omitted). Although

“Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce,” congressional findings enable courts “to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect

[is] visible to the naked eye.” Id. at 562-63; see also Morrison, 529 U.S. at 612.

That legislative finding to make the invisible “visible” is likewise lacking here.

When Congress enacted the CSA in 1970, it found that “[f]ederal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.” See 21 U.S.C. § 801.

However, these findings are inapposite; the original CSA did not include Section

856. See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L.

No. 91-513, 84 Stat. 1236 (1970). Congress enacted Section 856 sixteen years later. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986).

At that time, Congress did not make a single finding that regulating any of the activity covered by Section 856 was “an essential part of a larger regulation of

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economic activity” by the CSA, and that its absence would undercut the CSA. See

Raich, 545 U.S. at 24. Compare 42 U.S.C. § 18091(2)(H) (congressional finding, regarding the individual insurance mandate statute at issue in NFIB v. Sebelius,

567 U.S. 519 (2012), that the mandate was an “essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market”), with Anti-Drug

Abuse Act of 1986 (including no such congressional finding).

More importantly, there is no congressional finding that regulating the noneconomic activity of “manag[ing] or control[ing] any place . . . and knowingly and intentionally . . . mak[ing] available for use, . . . without compensation, the place for the purpose of unlawfully . . . using a controlled substance,” 21 U.S.C. § 856(a)(2), is “an essential part of a larger regulation of economic activity,” or that “the regulatory scheme” of the CSA “could be undercut unless the intrastate activity were regulated.” See Anti-Drug Abuse Act of 1986; see also 132 Cong. Rec. D00000-02, 1986 WL 786156 (congressional record of the Senate’s passage of the legislation that became the CSA); 132 Cong. Rec.

H6738-01, 1986 WL 790076 (congressional record of proceedings in the House of

Representatives on the legislation that became the CSA); 132 Cong. Rec. E3106-

01, 1986 WL 794224 (remarks by original co-sponsor of the legislation that became the CSA, outlining the legislation’s intent).

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Moreover, the 1970 congressional findings are wholly inapposite to the conduct regulated by Section 856(a)(2). Sixteen years before Section 856 was

even enacted, Congress found that “illegal importation, manufacture, distribution,

and possession and improper use of controlled substances have a substantial and

detrimental effect on the health and general welfare of the American people.” 21

U.S.C. § 801(2) (emphasis added). Section 856(a)(2), however, does not regulate these types of actions, but rather regulates the management or control of a place

and the making of that place available for the use of controlled substances. 21

U.S.C. § 856(a)(2). This activity is of a different class than that which is described

by Congress in its findings and is too attenuated from the actual use of controlled

substances to come within Congress’s power to regulate interstate traffic in

controlled substances.

Congress’s finding that the “[i]ncidents of the traffic [in controlled substances] . . . such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce” is similarly inapplicable to the non-compensated activity prohibited by Section

856(a). See 21 U.S.C. § 801(3). Nor do any of the congressional findings apply to such activity, of making a space available for others to use a controlled substance more safely. See also 21 U.S.C. § 801(4) (“Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such

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substances.”) (emphasis added); 21 U.S.C. § 801(6) (“Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.”) (emphasis added).

Section 856(a)(2) thus reaches activities that have nothing to do with the

manufacture, distribution, or possession of a controlled substance for purpose of

trafficking. As noted above, the DOJ’s construction of Section 856(a)(2) would

ban not only Safehouse’s proposed activity, but also parents from making their

homes “available for use” of a controlled substance by their adult offspring or spouses. As one district court observed under similar circumstances, even “the

Supreme Court’s most expansive interpretations of the Commerce Clause, do not extend Commerce Clause jurisprudence to the realm Congress seeks to regulate” with Section 856(a)(2). See Goudy-Bachman v. U.S. Dep’t of Health & Human

Servs., 811 F. Supp. 2d 1086, 1105 (M.D. Pa. 2011).

When it passed this statute, Congress had no reason to believe it was

necessary to reach the activity in which Safehouse is engaged to effectively

regulate the interstate traffic in controlled substances. Indeed, it is extremely

unlikely Congress even imagined such activity when it enacted Section 856(a)(2),

which was designed to address the problem of crack houses. See Safehouse, 408 F.

Supp. 3d at 585 (“[A] fundamental underlying reality is that no credible argument

can be made that facilities such as safe injection sites were within the

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contemplation of Congress either when it adopted Section 856(a) in 1986, or when it amended the statute in 2003.”); see also id. at 592 (“The impetus for § 856(a) initially was a concern about crack houses, and a similar concern about drug-fueled raves motivated the 2003 amendment.”).

To justify the regulation of Safehouse’s activity as essential to its broader regulatory scheme, Congress would improperly “have to pile inference upon inference.” Lopez, 514 U.S. at 549. Still worse, to uphold this statute in the absence of Congressional findings, this Court would have to pile inference upon inference on its own initiative. For example, this Court would have to speculate that, if a person knows there is a safe place to use controlled substances, he will be more likely to go out and buy drugs to use in that safe place, knowing that it will be safe, and therefore the intrastate noneconomic activity (providing a safe space) could undercut Congress’s broader regulatory scheme. This is exactly the type of

“remote” connection with interstate commerce that the Court rejected in Lopez and

Morrison as outside of Congress’s Necessary and Proper Clause powers. It is likewise too remote from the broader regulatory scheme established by the CSA.

2. Congress Has No Rational Basis to Conclude That Managing and Controlling a Place and Making that Place Available to Others Without Compensation Undercuts the CSA

Not only is the regulation of noneconomic intrastate activity in Section

856(a) unsupported by congressional findings, there is no rational basis for

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Congress to conclude that “manag[ing] or control[ing] any place . . . and knowingly and intentionally . . . [making the place available for use], without compensation” substantially affects supply and demand in the national drug market. See 21 U.S.C. § 856(a)(2). Without a rational basis for finding that

Section 856(a) is essential to the larger regulatory scheme of the CSA, the section

of the statute that prohibits non-compensated activity must fail. By comparison,

the Court in Raich concluded that Congress had a rational basis for believing the

failure to regulate the intrastate manufacture and possession of marijuana would

undercut the CSA. Raich, 545 U.S. at 22. The Court’s conclusion in Raich was

based on: (1) “the enforcement difficulties that attend distinguishing between

marijuana cultivated locally and marijuana grown elsewhere,” and (2) “concerns

about diversion into illicit channels.” Id. The activity that Section 856(a)(2)

prohibits raises no such enforcement difficulties or diversion concerns.

Distinguishing between compensated and uncompensated activities does not

pose the same enforcement difficulty as distinguishing between marijuana grown locally and elsewhere. Congress found that “it is not feasible to distinguish . . . between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.” 21 U.S.C. §

801(5).

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Yet it remains entirely feasible to distinguish between activity taken for compensation and activity taken without compensation. Indeed, this is exactly the distinction between economic and noneconomic activity that the Court in Lopez and Morrison adopted to police the line between what is national and what is truly local activity. See Lopez, 514 U.S. at 561; Morrison, 529 at 617-18. The Court adopted this distinction because it was a judicially administrable line to distinguish activities with proximate rather than remote effects on interstate commerce, with only the former being “necessary” to regulate. If judges can tell the difference between economic and noneconomic activity, so too can federal law enforcement tell the difference between compensated and non-compensated activity.

The CSA is designed “to conquer drug abuse and to control the legitimate

and illegitimate traffic in controlled substances.” Raich, 545 U.S. at 12. As such,

“Congress was particularly concerned with the need to prevent the diversion of

drugs from legitimate to illicit channels.” Id. at 12-13 (citing H.R. Rep. No. 91-

1444 at 22 (1970)). But managing or controlling a place and making that place available for use, without compensation, does not create a risk that drugs will be diverted from legitimate to illicit channels. No non-compensated activity that falls under the statute would undercut the CSA. Safehouse will not provide any illicit

drugs for consumption, nor will it tolerate any sale of illicit drugs or drug sharing at its facility. Safehouse’s overdose prevention services will further, rather than

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“undercut,” the broader regulatory scheme of the CSA, encouraging entry into drug

treatment and reducing drug overdoses, all without increasing the traffic in illicit

drugs. See Safehouse, 408 F. Supp. 3d at 585-86.

If Congress conducted an analysis of the impact of safe injection sites on its

ability to regulate the interstate traffic in illegal drugs—which it did not—it would

find that there is no nexus whatever between this traffic and the operation of

Safehouse’s overdose prevention services. In fact, studies show that medically

supervised consumption sites actually reduce drug use and do not increase drug

trafficking.6 In other words, at least in Safehouse’s case, the very uncompensated activity prohibited by Section 856(a)(2) furthers the broader regulatory purpose of the CSA. In contrast, Congress’s purpose in adding 856(a)(2) to the CSA is wholly served by its parallel ban on the provisions of crack houses for compensation.

In sum, Section 856(a) as a whole was unsupported by any congressional findings, and there is no rational basis for any linkage between Safehouse’s

6 See Chloe Potier et al., Supervised injection services: What has been demonstrated? A systematic literature review, 145 Drug & Alcohol Dependence, Results 48 (2014) (concluding that supervised consumption sites “were not found to increase drug injecting, drug trafficking or crime in the surrounding environments”); see also Beau Kilmer et al., Considering Heroin-Assisted Treatment and Supervised Drug Consumption Sites in the United States 31-38 (2018), https://www.rand.org/content/dam/rand/pubs/research_reports/RR2600/RR2693/ RAND_RR2693.pdf. 24

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proposed wholly intrastate, noneconomic, uncompensated activity and interstate commerce. Thus, this Court should conclude that there is no basis to find that the

CSA’s larger regulatory scheme would be “undercut” by the activity of managing or controlling a place and making that place available, without compensation, for the use of controlled substances by others. For these reasons, the fourth rationale for regulating wholly intrastate activity identified in Raich is inapplicable to the

“without compensation” portion of Section 856(a)(2).

3. Unlike Raich, the Provision of the CSA at Issue Here is Facially Unconstitutional

Crucially, the issue in Raich was whether the Court could “excise individual applications of a concededly valid” statute. Raich, 545 U.S. at 23. Not so here.

Just like the statutes in Lopez and Morrison, the portion of Section 856(a)(2) being challenged on its face falls entirely outside Congress’s authority under the

Commerce Clause. See Morrison, 529 U.S. at 607 (holding the challenged statute exceeded Congress’s authority under the Commerce Clause); Lopez, 514 U.S. at

551 (same).

The Supreme Court has deemed this distinction “pivotal” given its longstanding refusal to excise trivial individual instances of a properly regulated class of activities. Raich, 545 U.S. at 23; see also id. at 17 (ruling that “[w]hen

Congress decides that the total incidence of a practice poses a threat to a national market, it may regulate the entire class,” and “the de minimis character of

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individual instances arising under that statute is of no consequence” (internal quotation marks omitted)). It is the entire class of activities identified by the statute itself—those described activities that are “without compensation”—that is beyond the powers of Congress. Because Congress lacks the authority to regulate the conduct “without compensation” prohibited by Section 856(a)(2), that portion of the statute is unconstitutional on its face.

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II. SECTION 856(a)(2) CAN BE INTERPRETED TO AVOID ANY CONSTITUTIONAL ISSUES

A. The Government’s Interpretation of Section 856(a)(2)’s Prohibition of Uncompensated Activity is Facially Unconstitutional but the Court Can Construe the Statute to Avoid the Constitutional Issue Altogether

The DOJ’s interpretation of Section 856(a)(2) is facially unconstitutional.

But there is an alternative construction that does not run afoul of the Constitution.

“[S]o long as the statute is found to be susceptible of more than one construction”—one of which “raises a serious doubt as to its constitutionality”— the constitutional avoidance canon applies. Guerrero-Sanchez v. Warden York

Cty. Prison, 905 F.3d 208, 223 (3d Cir. 2018) (citation and internal quotation

marks omitted).7 Here, the Government’s interpretation of Section 856(a)(2) is

unconstitutional because it applies to activity taken “without compensation.”

7 Where, as here, the statute at issue is a criminal statute, the rule of lenity also applies. It is well-settled that “ambiguities about the breadth of a criminal statute should be resolved in the defendant’s favor.” United States v. Davis, 139 S. Ct. 2319, 2333 (2019); United States v. Flemming, 617 F.3d 252 (3d Cir. 2010) (where there is “ambiguity in a criminal statute that cannot be clarified by either its legislative history or inferences drawn from the overall statutory scheme,” courts must interpret that statute in “favor of lenity”—i.e., in favor of the defendant). “Under a long line of [Supreme Court] decisions, the tie must go to the defendant.” United States v. Santos, 553 U.S. 507, 514-15 (2008) (plurality) (Scalia, J.) (emphasis added). 27

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The Supreme Court’s “‘traditional practice’ is to ‘refuse to decide constitutional questions’ when other grounds of decision are available, ‘whether or not they have been properly raised before us by the parties.’” Sessions v. Dimaya,

138 S. Ct. 1204, 1258 (2018) (Thomas, J., dissenting) (quoting Neese v. So. R. Co.,

350 U.S. 77, 78 (1955) (per curiam)). And the Supreme Court “has raised potential saving constructions ‘on [its] own motion’ when they could avoid a ruling on constitutional vagueness grounds . . . .” Id. (quoting United States v. L.

Cohen Grocery Co., 255 U.S. 81, 88 (1921)). For example, in Mackey v.

Mendoza-Martinez, the Court sua sponte invoked the affirmative defense of collateral estoppel in order to avoid considering the constitutionality of a portion of the Nationality Act of 1940. 362 U.S. 384, 386-87 (1960).

This Court can similarly avoid invalidating Section 856(a)(2) as unconstitutional by recognizing an affirmative defense for uncompensated conduct that otherwise falls under the statute. This Court may construe the words “with or without compensation” as establishing a prima facie case of criminal liability, which can be rebutted by an accused. Under this construction, to ease enforcement, persons operating such facilities may be convicted without proof that they are operating in return for compensation; but any person accused under this section can offer proof they were acting without compensation as an affirmative defense.

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This construction would obviate any enforcement difficulties resulting from imposing a burden on the government to prove—as an element of the offense in every case—that the owner or operator of such a facility was receiving compensation. Indeed, given the lack of findings to the contrary, avoiding enforcement difficulties of this kind was very likely to have been Congress’s original purpose for including the “with or without compensation” language in the statute in 1986. The recognition of an affirmative defense would render the statute constitutional because uncompensated activity outside the bounds of Commerce

Clause authority would not be prohibited.

B. Local Governments Have Authority to Regulate Public Health and Safety

The DOJ’s interpretation of Section 856(a)(2) invades an area of regulation traditionally reserved to the States—medical care—and thus raises serious federalism concerns. Federalism requires “federal courts to be certain of

Congress’ intent before finding that federal law overrides the usual constitutional balance of federal and state [police] powers.” Bond v. United States, 572 U.S. 844,

858 (2014) (emphasis added); see also Jones v. United States, 529 U.S. 848, 858

(2000) (explaining that, where Congress enacts criminal law that touches on areas traditionally falling within the authority of the States, courts will assume—“unless

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Congress conveys its purpose clearly”—that Congress “will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes.”).

“[T]he regulation of health and safety matters is primarily, and historically, a matter of local concern.” Hillsborough Cty. v. Automated Med. Labs., Inc., 471

U.S. 707, 719 (1985); see also Oregon, 546 U.S. at 269-70 (“[T]he structure and limitations of federalism . . . allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons”); Bond, 572 U.S. at 853-54.

There is no indication that Congress intended for Section 856(a)(2) to challenge the authority of States and localities when it enacted Section 856(a)(2).

See Oregon, 546 U.S. at 269-70 (finding the CSA “manifests no intent to regulate the practice of medicine generally”). Indeed, the CSA states:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

21 U.S.C. § 903.

Given the absence of any Congressional intent to override State police powers, amicus requests that this Court find that Section 856(a)(2) does not

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override the powers traditionally reserved to the State—including the regulation of volunteer medical treatment.

CONCLUSION

Section 856(a)(2) prohibits the wholly intrastate, noneconomic, not-for- profit activity of managing or controlling a place and making that place available for use by others. Congress did not find that the portion of Section 856(a) that applies to activity taken “without compensation” is essential to a broader regulatory scheme—nor would it have been reasonable to do so. The “without compensation” portion of Section 856(A)(2) of the Controlled Substances Act is therefore facially unconstitutional because it exceeds the enumerated powers delegated to Congress by the Commerce and Necessary and Proper Clause. To

avoid striking down that portion of the statute, however, this Court may invoke the

constitutional avoidance canon to apply a saving construction that would give

those accused of violating the statute an affirmative defense, allowing Safehouse to

show that it was not compensated for its activity.

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Respectfully submitted,

Dated: July 6, 2020 /s/ Catherine M. Recker CATHERINE M. RECKER AMY B. CARVER WELSH & RECKER, PC 306 Walnut St. Philadelphia, PA 19106 (215) 972-6430

THOMAS V. LORAN III NIDA VIDUTIS PILLSBURY WINTHROP SHAW PITTMAN LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111 (415) 983-1000

Counsel for Amicus Curiae

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CERTIFICATE OF BAR MEMBERSHIP Pursuant to Local Rules 28.3(d) and 46.1(e), I hereby certify that I,

Catherine M. Recker, am admitted as an attorney and member in good standing of the bar of the United States Court of Appeals for the Third Circuit.

Dated: July 6, 2020 By: /s/ Catherine M. Recker

Case: 20-1422 Document: 76 Page: 40 Date Filed: 07/06/2020

CERTIFICATION OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(g), Federal Rule of

Appellate Procedure 28(a)(10), and Local Rule 31.1, I, Catherine M. Recker,

certify the following:

1. This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 29(a)(5) because this brief contains 6,461 words, excluding

the parts of the brief exempted by Federal Rule of Appellate Procedure

32(a)(7)(B)(iii) and Local Rule 29.1(b).

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because it has been prepared in Times New Roman

14-point font using Microsoft Word for Microsoft 365.

3. This brief complies with the electronic filing requirements of Local

Rule 31.1(c) because the text of the electronic brief is identical to the text in the

paper copies and because Trend Micro virus scan software was used to scan the

file containing the electronic version of this brief and the program did not detect

any virus.

Dated: July 6, 2020 By: /s/ Catherine M. Recker

Case: 20-1422 Document: 76 Page: 41 Date Filed: 07/06/2020

CERTIFICATE OF SERVICE I, Catherine M. Recker, hereby certify that on July 6, 2020, the foregoing

Brief for Amicus Curiae Constitutional Law Scholar and Commerce Clause Expert

Randy Barnett was filed with the Clerk of the Court of the United States Court of

Appeals for the Third Circuit using the appellate CM/ECF system. Service will be accomplished by the CM/ECF system.

Dated: July 6, 2020 By: /s/ Catherine M. Recker