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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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Constitutional Law Scholar and Commerce Clause Expert Professor Randy Barnett in Support of Appellees and Affirmance of the District Court’S Order Case: 20-1422 Document: 76 Page: 1 Date Filed: 07/06/2020 No. 20-1422 In the United States Court of Appeals for the Third Circuit ______________________ UNITED STATES OF AMERICA, Appellant, v. SAFEHOUSE, a Pennsylvania nonprofit corporation; JOSE A. BENITEZ, as President and Treasurer of Safehouse, Appellees. ________________________________________________________ SAFEHOUSE, a Pennsylvania nonprofit corporation, Appellee, v. 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 Case: 20-1422 Document: 76 Page: 2 Date Filed: 07/06/2020 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 i Case: 20-1422 Document: 76 Page: 3 Date Filed: 07/06/2020 B. Local Governments Have Authority to Regulate Public Health and Safety ............................................................................................................. 29 CONCLUSION ........................................................................................................ 31 ii Case: 20-1422 Document: 76 Page: 4 Date Filed: 07/06/2020 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 Case: 20-1422 Document: 76 Page: 5 Date Filed: 07/06/2020 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 iv Case: 20-1422 Document: 76 Page: 6 Date Filed: 07/06/2020 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,
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