Having it Both Ways?

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by Jeff Matthews

Federal Health Insurance Mandates: Why You Can’t Oppose them and Support Federal Marijuana Bans at the Same Time.

Is there any limit to what the Commerce Clause allows Congress to do?   Let’s take a look at the Commerce Clause, which states, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

Though the clause has been extended by the U.S. Supreme Court in an almost continuous fashion since the Constitution was ratified, its 1942 decision in Wickard v. Filburn was a monumental extension.  In issue in Wickard was the ability of Congress to regulate how much wheat a farmer could grow, when the wheat was not going to be traded in the market and would be used for the farmer’s own consumption.  Filburn was prosecuted for growing 23 acres of wheat in the face of a federal statute allowing only 11.1 acres to be grown.   Filburn argued Congress had no authority to restrict how much wheat he could grow because the excess wheat he was growing was for his own use on his farm and not for sale on the market.  Thus, he claimed the excess wheat would never become involved in interstate commerce.

In holding that Congress did not exceed its authority, the Supreme Court stated:

One of the primary purposes of the Act in question was to increase the market price of wheat, and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat 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 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.

(emphasis added).

Above, it is seen that regulating commerce has been interpreted to mean regulating things that “could affect” interstate commerce.   The Court ruled that excess wheat “tends” to find its way into interstate commerce, without any proof that the wheat in question actually does – much like assuming that since black markets tend to arise when government limits supply, Filburn was already in that class of persons who trade in black markets.   One would have to ask whether it is an appropriate standard of judicial review for our Supreme Court to assume guilt, rather than innocence.

However, the Court partly dodged its assumption of guilt by pointing out that even if Filburn was an otherwise law-abiding citizen, to the extent he grew his own wheat, he would not have to purchase what he needed from the open market.   Thus, the Court concluded, allowing many people to avoid price regulation by supplying their own needs would thwart Congress’ desire to maintain higher wheat prices.   Filburn’s lack of demand for wheat on the market would accordingly “affect” interstate commerce by the simple fact that he would have no need to make purchases from the market.

Incidentally, one can easily speculate that the federal mandate to purchase health insurance might be upheld on this reasoning – i.e., the absence of need for health insurance reduces demand for it.  Is this not true with respect to every product offered for sale by third-parties?

Gonzales v. Raich was a 2005 U.S. Supreme Court opinion which relied heavily on Wickard.  Raich relied on California’s laws permitting marijuana use for medicinal purposes, which also allowed her to grow marijuana for her personal consumption.  The federal government refused to recognize that California’s laws afforded her any rights to engage in such activities.

The Supreme Court wrote:

The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Just as the Agricultural Adjustment Act was designed “to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses …” and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets….

More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U. S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market.

Interestingly, the issue in Raich was not one of price controls.  Instead, it concerned an outright ban.   Nobody was arguing the price of marijuana should be higher and Raich should go out on the open market and purchase it.

So, what remains is the Court’s observation that regulation by the federal government was proper because of “the likelihood that the high demand in the interstate market will draw such [home-grown] marijuana into that market.”  Here, it can be seen that the Court’s opinion inescapably hinges on its assumption that Raich would turn criminal and begin selling her home-grown marijuana in the interstate market.

In short, what can be concluded from the similarities between Wickard and Raich is that it is enough to justify federal intrusion into state concerns if something has the potential to become involved in interstate commerce, and not whether it actually does.  Moreover, Raich makes it clear that in the face of federal regulation of interstate commerce, one who possesses items against the will of the federal government will inevitably become a criminal.   Thus, a person’s potential to become a criminal makes him a criminal.

Justice Thomas vigorously dissented in Raich, stating as follows:

Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States,” Art. I, § 8, cl. 3. Ante, at 22. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California — it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value….

This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U. S., at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature” (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “`the production, distribution, and consumption of commodities.’” Ante, at 25 (quoting Webster’s Third New International Dictionary 720 (1966) (hereinafter Webster’s 3d)). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 49-50 (O’CONNOR, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

(emphasis added).

In Thomas’ dissent, the emphasized language is the exact language relied upon by opponents of the new health insurance mandates.   Simply put, opponents argue that the insurance mandates are Unconstitutional because the decision not to purchase insurance is not the act of engaging in “economic” activity; it is merely the act of one’s existing and deciding not to engage in a particular economic activity.

In conclusion, Raich involved an issue, legalized marijuana, which a great number of people oppose.   For that reason, it is common to see many advocates for less government who have the opinion that Raich was properly decided.   They advocate for less government but oppose legalizing marijuana.

For those who are within the foregoing category, a serious conflict arises.   To support the decision in Raich is to admit that the federal government does, indeed, have the authority to force purchases of health insurance and to require compliance with a myriad of mandates with which such people would normally disagree.

Some might argue that Raich actually engaged in behavior, i.e., growing plants, thus, laying the grounds to allow federal regulation over her.  However, the same could be said for any activity.   For example, consuming alcohol and fast food, as well as working hard, are activities that, under the same logic, should be subject to regulation by the federal government, e.g. “Any person who consumes alcohol or fast food, or who works hard, shall be required to maintain health insurance meeting the minimum requirements of this Act.”

It seems there are only two plausible ways in which to deal with this conflict in the context of the limits, if any, on the federal government’s authority to regulate commerce among the states.   The first is simply not to concern one’s self with the rules of law and to just argue points based on an inconsistent reasoning.  The second is to gain a higher appreciation for why the rules of law were crafted as they were and to be willing to concede to proper reasoning.

Using the principles of law relied on by the federal courts to maintain a federal ban on marijuana use, one cannot be both:  (1) against the federal government’s new health insurance mandates, and (2) against a state’s right to legalize marijuana use.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

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This entry was posted on Tuesday, September 14th, 2010 at 10:19 am. It is filed under Constitution, Drug War, Featured, Health Care and tagged with commerce-clause, Gonzales v Raich, medical-marijuana, Obamacare, Wickard v Filburn. You can follow any responses to this entry through the RSS 2.0 feed.