CASENOTE Gonzales v. Raich: Has New Federalism Gone up in Smoke? In Gonzales v. Raich,1 the United States Supreme Court broke with recent federalist trends2 by holding that Congress did not exceed its Commerce Clause' power in prohibiting the local growth and use of marijuana, which was legal under California state law.4 While the Court asserted that this case did not break with recent precedent restricting Congress's Commerce Clause power,5 this decision reaffirms 1. 125 S. Ct. 2195 (2005). 2. The Court, in recent years, has struck two laws on federalist principles. United States v. Lopez, 514 U.S. 549 (1995); Morrison v. United States, 529 U.S. 598 (2000). 3. The Commerce Clause of the United States Constitution provides that Congress has the power "[t]o regulate Commerce... among the several States....." U.S. CONST. art 1, § 8, cl. 3. 4. California's Compassionate Use Act of 1996 provides that its purpose is: To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. CAL. HEALTH & SAFE. CODE ANN. § 11362.5(b)(1)(A) (West Supp. 2005). 5. Gonzales, 125 S. Ct. at 2209-11. 1309 1310 MERCER LAW REVIEW [Vol. 57 expansive congressional power and creates uncertainty about whether federalist principles limit congressional power. I. FACTUAL BANKGROUND Diane Monson and Angel Raich are residents of California who used marijuana to alleviate the symptoms associated with their medical conditions. Both women were treated by doctors who believed marijuana was the only effective treatment available. Monson grew her own marijuana while Raich relied on caregivers to provide the drug for free. On August 15, 2002, local sheriffs and federal Drug Enforcement Agency agents came to Monson's home. The local sheriffs determined that her possession and use of marijuana were in compliance with California's Compassionate Use Act." Despite the sheriffs' conclusion, the federal agents seized and destroyed all of Monson's marijuana plants.7 Raich and Monson (the "Respondents"), brought suit against the United States Attorney General seeking injunctive and declaratory relief.' The Respondents sought to prohibit the enforcement of the Controlled Substance Acte ("CSA").' ° They argued that, as applied, the CSA violated, inter alia, the Commerce Clause." The Northern District Court of California denied their motion for a preliminary injunction, concluding that the Respondents "[did] not demonstrate a likelihood of success on the merits of their legal claims." 2 A split Ninth Circuit Court of Appeals reversed, holding that the Respondents "'demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause 6. Cal Health & Safe. Code Ann. § 11362.5(b)(1)(A). 7. Gonzales, 125 S. Ct. at 2219-20. 8. Id. at 2201. 9. 21 U.S.C. §§ 801-904 (2000 & Supp. 2002). Shortly after President Nixon declared a "war on drugs," Congress enacted the Comprehensive Drug Abuse and Prevention Act. Gonzales, 125 S. Ct. at 2201. This statute consolidated all drug laws into one law and repealed all previous laws. Title 1I of the Act, the Controlled Substance Act, created five schedules, or classifications, of drugs based on their accepted medical use, potential for abuse, and psychological and physical effects on the body. 21 U.S.C. § 811(c). Marijuana is classified as a Schedule 1 drug. Id. § 812(c)(c)(10). Schedule 1 drugs are determined to have no known medical use. Id. § 812(b)(1)(B). With the exception of using marijuana in a study approved by the Attorney General, all manufacture, possession, or distribution of marijuana is a criminal offense. I& §§ 841(a)(1), 844. 10. Gonzales, 125 S. Ct. at 2201. 11. Id. at 2200. In addition to the Commerce Clause, respondents claimed the CSA violated the Due Process Clause of the Fifth Amendment, the Ninth Amendment, the Tenth Amendment and the medical necessity doctrine. Id. 12. Id. (citing Raich v. Ashcroft, 248 F. Supp. 2d 918, 931 (N.D. Cal. 2003)). 2006] GONZALES V. RAICH 1311 authority.""' The majority relied upon the recent trend in the Su- preme Court restricting Commerce Clause power. 4 The Supreme Court granted certiorari to decide the Commerce Clause issue. 5 II. LEGAL BACKGROUND The Commerce Clause was included in the Constitution by the framers as a response to the failure of the Articles of Confederation, which did not give any federal commerce power.'" Over the years, the Court's deference to Congress under the Commerce Clause has waxed and waned, as discussed below. Commerce Clause jurisprudence is crucial because it is one of Congress's most-used enumerated powers." The Court first addressed the issue of Congress's power under the Commerce Clause in Gibbons v. Ogden.i s The Court in Gibbons defined commerce as "the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." 9 Despite this broad definition, prior to 1937, the Court used the Commerce Clause to strike down federal economic regulations.2 ° A. 1890-1937 Limiting Congressional Commerce Clause Power From 1890 to 1937 the Court struggled to define congressional Commerce Clause power. While the Court upheld some congressional actions as proper regulations over the "stream of commerce,"2' other congressional acts were struck as being federal invasions into state power." The Court's actions reinforced a laissez-faire economy by preventing federal regulations. 13. Id. at 2200-01 (quoting Raich v. Ashcroft, 352 F.3d 1222, 1227 (2003)). 14. Id. at 2201. 15. Id. 16. Id. at 2205. 17. See ERWiN CHEMERINSKY, CONSTITUTIONAL LAW, PRINcIPLES AND POLICIES 238-39 (Aspen Publishers 2d ed. 2002) (1997). 18. 22 U.S. 1 (1824). 19. Id. at 189-90. 20. See, e.g., United States v. E.C. Knight Co., 156 U.S. 1 (1895) (holding congressional attempts to destroy a sugar monopoly unconstitutional); R.R. Retirement Bd. v. Alton R.R. Co., 295 U.S. 330 (1935) (holding federal pension system for railroad employees unconstitutional); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (holding federal laws regulating the coal industry unconstitutional). 21. See, e.g., McDermott v. Wisconsin, 228 U.S. 115 (1913) (upholding labeling requirements for items shipped interstate); United States v. Nice, 241 U.S. 591 (1916) (upholding the federal government's power to regulate commerce with Indians). 22. See, e.g., E.C. Knight, 156 U.S. 1; R. R. Retirement, 295 U.S. 330; Carter, 298 U.S. 238. 1312 MERCER LAW REVIEW [Vol. 57 One exemplar case from this era is A.LA Schechter Poultry Corp. v. United States, 23 in which the Court struck the "Live Poultry Code" as exceeding Congress's commerce clause power.24 The federal regulations sought to create fair trade in the poultry industry. The law also regulated employment by prohibiting child labor, establishing a forty hour work week, and creating a minimum wage. 25 In striking the regulations, the Court was concerned with the potentially limitless power of the federal government to regulate if it had the power to regulate intrastate business practices, not withstanding the practical effects the Court's decision would have on the nation's economic crisis.26 At the time, New York was the biggest live-poultry market in the United States.27 Most of the chicken arrived in New York via freight shipments from other states.2" The issue was whether the regulation of wage and salary was a Constitutional exercise of Congress's power.29 The Court reasoned that the fact the poultry market included many states did not justify Congress's regulations because "the code provisions,... [did] not concern the transportation of the poultry from other States to New York ...... The government argued that the prices of poultry were directly related to the cost of labor.8 ' The Court, however, reasoned "[i]f the federal government may determine the wages and hours of employees in the internal commerce of a State, because of their relation to cost and price and their indirect affect upon interstate commerce, it would seem that a similar control might be exerted over other elements of cost.... ,82 The fact that no state would enact labor protection laws because it would harm its economy was not persuasive to the Court.' The Court reasoned that "extraordinary conditions may call for extraordinary remedies . [but] [e]xtraordinary conditions do not create or enlarge constitutional power."3' Practical considerations were not sufficient. 23. 295 U.S. 495 (1935). 24. Id. at 550. 25. Id. at 523-27. 26. See id. at 519-26. 27. Id. at 520. 28. Id. 29. Id. at 542. 30. Id 31. Id at 548-49. 32. Id. at 549. 33. Id. 34. Id. at 528. 2006] GONZALES V RAICH 1313 B. 1937-1995 Broad Congressional Commerce Clause Power The shift in the Court's approach to the Commerce Clause is famously known as "the switch in time that saved nine."35 After winning re- election, President Roosevelt encouraged Congress to enact a law that would have added six new justices to the Supreme Court in order to garner enough support on the bench to uphold New Deal legislation as constitutional."6 Even President Roosevelt's supporters hesitated at the idea of court-packing for fear it would permanently injure judicial independence." While it is unclear if Justice Owen Roberts was influenced by President Roosevelt's plan, he changed his vote in West Coast Hotel v.