Two Great Cases: Of Wheat, Weed, and Wickard

Photo by Daniel Oberhaus via Wikimedia Commons

I

During the Great Depression, Congress determined that international supply and domestic demand for wheat and wheat products were subject to perilous fluctuations, creating instability for a bedrock food product needed to feed impoverished Americans. It therefore passed the Agricultural Adjustment Act of 1938 and delegated regulation of wheat production to the Department of Agriculture. That agency, under the leadership of FDR’s Secretary of Agriculture Claude Wickard, set quotas for production of wheat based on a per-acre basis. The purpose of the law was to stabilize the national market price for wheat. In order to do that, only so much wheat per acre of land could be grown.

Roscoe Filburn of central Ohio had a farm inherited from his mother, of 95 acres. Most of the land was devoted to raising poultry and dairy cows. Under the New Deal allotment, up to 11.1 acres of that land could be used to cultivate winter wheat. But Filburn planted roughly 23 acres of winter wheat. This yielded a total of 239 bushels of wheat in excess of the quota. He used most of the wheat to feed his family and his livestock, and reserved some for the next year’s planting. But there was still wheat left over, which Filburn wished to sell. For his trouble, he was given a fine of $117.11, and more importantly the local officials withheld Filburn’s marketing card, which meant that he could not sell any of the crop.

He refused to pay the fine and sued for relief from it and for issuance of his marketing card. In Wickard v. Filburn, 317 U.S. 111 (1942), Filburn argued that because he did not exceed his quota of wheat sales, he did not introduce an unlawful amount of wheat into interstate commerce. The wheat he fed his family, fed his livestock, and reserved for planting was both trivial in amount when viewed from the Federal government’s perspective, and more importantly never entered the stream of commerce either within Ohio or within the larger national market for wheat. It was therefore a purely local activity, he argued, beyond the reach of the Federal government to control or regulate.

The Supreme Court ruled against him and in favor of the government. While it was true that this physical wheat was never offered for sale and instead was consumed directly by Filburn, the fact that Filburn didn’t have to go to market himself to buy wheat meant that, however infinitesimally, demand for wheat was reduced. What if everyone did that? That could tangibly reduce demand for wheat, which would reduce its price, which in turn would reduce its supply, inducing a wheat shortage. The whole point of the law was to stabilize the price so that there would be reliable amount of wheat for everyone to consume. Therefore, even though Filburn consumed the wheat himself, that consumption was regulable within the scope of Congress’ power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

The immediate practical result was that Filburn had to pay the fine. The wheat itself had long since been consumed in one form or another. In a few years, the price stabilization scheme was scrapped and farmers on Filburn’s scale went to an antecedent form of today’s cooperative-sale-and-crop-insurance scheme, which sometimes serves farmers quite well but doesn’t provide complete isolation from business risks.

But the long-term result was that Wickard v. Filburn gradually grew to stand for the legal proposition that the Commerce power of Congress is effectively limitless. Since even small, seemingly purely local decisions to not enter the market, if aggregated, have an effect on interstate commerce, scholars concluded that there simply was no thing that Congress could not legislate on, regulate, or effectively, prohibit, if only it took a few moments to indicate the effect of that thing upon interstate commerce.

Roscoe Filburn himself never really spoke of the case again, and as the case grew in legal prominence, he began using a different form of his family name, “Filbrun.” After his death, his own grandson reported surprise at learning of Roscoe Filburn’s involvement with one of the most far-reaching legal decisions of the twentieth century.

II

The Federal Controlled Substances Act (CSA) was an attempt by Congress in 1970 to restate and re-organize a complex assortment of various laws regulating various ingestible substances with a variety of effects on the human body. After the 1970 reform of the laws regulating and criminalizing substances, Congress created the Drug Enforcement Agency (DEA) in 1973 as a separate law enforcement agency under the purview of the United States Department of Justice.

Since that time, the DEA has been the agency which has engaged in primary (though not exclusive) enforcement of the CSA. As a Department of Justice agency, the DEA is ultimately controlled by the President and, directly reporting to the President, the Attorney General.

Generally speaking, it organizes a large number of described stimulants, depressants, hallucinogens, and other narcotics into a five-tiered schedule, with various levels of criminalization and ability of medical practitioners to prescribe. One commenter has offered a series of examples to illustrate how the scheduling works:

• Schedule 1: High potential for addiction and abuse; no recognized medical uses. Examples include ecstasy, LSD, and heroin. Marijuana is also considered a Schedule 1 drug, despite studies finding it to have medical uses.
• Schedule 2: High potential for addiction and abuse; limited recognized medical uses under strict controls. Examples include cocaine and methamphetamine. Cocaine and meth’s presence in a lower schedule may surprise some; however, they have widely-accepted and recognized medicinal uses. Cocaine is a remarkably effective anesthetic, amphetamines have been used as stimulants for nearly a century, including, both amusingly and frighteningly, by Adolf Hitler during World War II.
• Schedule 3: Intermediate potential for abuse or addiction if abused; recognized medical uses under doctor’s supervision. Examples include anabolic steroids, ketamine, testosterone.
• Schedule 4: Moderate potential for abuse or addiction; recognized medical uses under tightly-regulated medical prescription. Examples include Ambien, Xanax, and Valium.
• Schedule 5: Low potential for abuse or addiction; recognized medical uses under general medical prescription. Examples include Lyrica and cough suppressants.

It is marijuana and its medicinal uses which concerns us today. Since the late 1930’s Congress has regulated the production, distribution, sale, and consumption of marijuana, first through the Marihuana Tax Act of 1937, which imposed a punitive tax on the substance so as to render it effectively unavailable legally anywhere in the United States. The Marihuana Tax Act was struck down as unconstitutional in the case of Leary v. United States, 395 U.S. 6 (1969), which held that when Timothy Leary attempted to enter the United States by car from Mexico, he would have been required to declare the presence of marijuana so as to pay the tax, which also would have required him to admit possessing it, which was a crime, and therefore compelled self-incrimination in violation of the Fifth Amendment. A unanimous Supreme Court struck the Marihuana Tax Act as unconstitutional. The holding in Leary was one of the precipitate political causes behind the passage of the CSA.

III

In 1996, the voters of the State of California passed what was then known as Proposition 215, the Compassionate Use Act of 1996. Among other things, Prop. 215 decriminalized the cultivation, distribution, and consumption of marijuana contingent upon the issuance of a medical prescription for its use and registration of the consumer as a medical user of marijuana. In the author’s experience, a large number of Californians proved able to readily obtain a prescription from a physician. A cottage industry arose for doctors who associated with marijuana dispensaries, some of whom diagnosed hundreds of patients, assembly-line style, with conditions such as “stress” and “intermittent loss of appetite” and thus justified prescription. However, users frequently failed to complete the registration process to get a medical marijuana card, resulting in their inability to subsequently claim immunity from prosecution for possession and use.

Angel McClary Raich was at the relevant times of the story a resident of Oakland, California. She suffered (and to this day still suffers from) a very complex constellation of medical and psychological issues including an inoperable brain tumor, paralysis-inducing scoliosis, PTSD tracing back to childhood sexual molestation, endometriosis, degeneration of her right rotator cuff, asthma, and an inability to maintain a healthy body weight. Under doctors’ advice, she began to incorporate marijuana use in her treatment regimen in 1997. There were other plaintiffs in the case as well, two of whom were listed as “Does” to protect their anonymity, and a third who was named but after the resolution of the litigation has shunned public life completely. It is challenging to imagine a plaintiff with a more sympathetic set of facts than Ms. Raich.

Her then-husband, Robert Raich, was one of the authors of Prop. 215, and served as one of the principal litigators in her case against the Federal government. That case came after DEA agents raided the home of one of Ms. Raich’s co-plaintiffs and destroyed the marijuana plants she cultivated; causing Angel Raich to fear DEA seizure of her own supply of cannabis products.

Raich, likely working with her husband, tapped into a network of libertarian-leaning think tank lawyers who believed that here, at last, was a meaningful way to punch a hole in the holding of Wickard v. Filburn as well as to accomplish what they saw as a significant public policy and individual freedom gain: knocking over a hurdle on the road to the legalization of marijuana.

IV

The basic claim was that the Controlled Substances Act exceeded the reach of the Commerce Clause, as applied to medicinal marijuana cultivated and given away on a volunteer basis. The difference between Raich’s situation and Filburn’s was that here, Congress had eliminated the market for marijuana entirely, and therefore no legal interstate commerce in marijuana was possible. In other words, there was no market in which Raich’s behavior might cumulate and alter. They were careful to indicate that they did not challenge the Controlled Substances Act in its entirely, only its application to the noncommercial, medicinal use to which Raich put it, which had the benefit of complying with state law.

As expected, they lost in the initial level, the U.S. District Court, which found that it was unlikely Raich would succeed on the merits of her claim. But to some surprise, the Ninth Circuit, by a split decision of 2-1, agreed with the argument, finding that “the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes” in compliance with Prop. 215, was distinct from the illicit drug market addressed by the CSA. So it was with a certain optimism that Raich and her team approached the Supreme Court in the autumn of 2004. In June of the next year, they got their result.

Placing particular weight upon Wickard, a 6-3 majority of the Supreme Court reversed the Ninth Circuit, ruling for the government and against Raich. The majority opinion by Justice John Paul Stevens noted:

We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. … . Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, … and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce … among the several States.” … That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme. Gonzales v. Raich, 545 U.S. 1, 22 (2005) (cleaned up).

In other words: we the Court are not going to decide whether Congress is required to carve out so-called purely local activities from the scope of a sweeping prohibition of the substance. Congress has power to regulate marijuana generally because in some instances, marijuana is a substance in the flow of commerce. The criminalized nature of that commerce does not change the fact that the activity is economic, “there is an established, and lucrative, interstate market” for marijuana. Congress has power to regulate; here, Congress has chosen prohibition.

The majority was unmoved by the seeming appropriateness of medicinal use in Raich: the CSA, after all, regulates a variety of substances that it contemplates will be used medicinally. Also unpersuasive was the compliance with state law as a means of defining a limitation, the issue was simply one of whether or not Congress had the power to regulate (and thus in some cases prohibit) a substance, which it has.

So, from the “separate and distinct” class of activities identified by the Court of Appeals … , we are left with “the intrastate, noncommercial cultivation, possession and use of marijuana.” Thus the case for the exemption comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases endorsing its reasoning foreclose that claim. Gonzales, supra, at 33.

It’s worth noting that the dissent was written by Justice Sandra Day O’Connor, in which she was joined by Chief Justice Rehnquist and Justice Clarence Thomas. The dissenters indicated that to them, the case fell beyond the outer limits of commerce clause authority because the kind of use in question here would not affect the interstate market for marijuana, and therefore would have no substantial effect on that market. Extending the commerce clause here, they argued, would grant Congress effectively the same police power to legislate on anything and everything that is exercised by a state. Interestingly, O’Connor wrote that she disapproved of medical marijuana: “If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act.” Gonzales, supra, at 57 (O’Connor, J., dissenting). But she believed that the Constitution left room for California to experiment with this proposal nevertheless.

Justice Thomas wrote a separate dissent, indicating that he questioned the basic premise of the Wickard case, as he found that Ms. Raich used “marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana,” id. (Thomas, J., dissenting), and therefore was, in his opinion, beyond Congress’ power to regulate. He mediated at great length about the Necessary and Proper Clause, and found that Congress’ attempt to regulate intrastate, local use of a project would not thwart Congress’ legitimate objective of attempting to halt interstate and international trafficking in the stuff.

But the majority upheld application of the CSA, and Raich was left where she started: at risk of arrest and imprisonment for possessing and using the only substance she had ever found that afforded her relief from the symptoms of a complex and pitiable series of grave ailments.

V

To this day, Wickard v. Filburn represents what many scholars recognize as the high water mark of the scope of Congress’ power to regulate economic activity under the Commerce Clause, a mark from which there has been subsidence exactly twice in American history since, both relating to criminal laws. The first, U.S. v. Lopez, 415 U.S. 459 (1995), saw the Supreme Court strike down the Gun-Free School Zones Act of 1990, because the mere possession of a handgun within a specified distance of a school involved neither the channels of interstate commerce, the instrumentalities or things within the stream of interstate commerce, or activities that might substantially affect or relate to interstate commerce. The second, U.S. v. Morrison, 529 U.S. 598 (2000), saw the Supreme Court strike down the Federal Violence Against Women Act of 1994, which provided for a civil right of action in Federal courts for victims of domestic violence to sue their attackers, holding that despite Congressional findings of fact that domestic violence caused over $5 billion a year in health care costs, domestic violence crimes were while abhorrent, not “economic” in nature whatsoever.

Both Lopez and Morrison were 5-4 cases with majority opinions authored by Chief Justice William Rehnquist; in no case before or since has Congress’ commerce power been found to exceed its Constitutional limits. (But see Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), limiting the “migratory bird rule” formerly in use the by Army Corps of Engineers to extend jurisdiction to enforce section 404 the Clean Water Act into bodies of water that did not empty into navigable rivers or lakes, a rationale with parallels to Wickard’s aggregation-of-commerce rule. Chief Justice Rehnquist also wrote the majority opinion in SWANCC. Those cases were relied upon by the Ninth Circuit’s ruling in Raich’s favor, and distinguished from Raich’s case by the Supreme Court.) The Lopez case attempts to offer something of a principled test, but it’s worth noting that the only thing that the laws in Lopez and Morrison have in common are the attempt to prevent and address crimes of violence; they should not be read as “pro-violence” cases but rather to indicate the Court’s decision that violence is a local matter, rather than a national issue.

VI

Roscoe Filburn died in 1987. According to his grandson Gerald Spurgeon, Filburn never talked about the Wickard case, saying, “No, he wasn’t talkative…He was a farmer.” As near as I can tell, Filburn’s farm has since been developed mostly into tract homes in Trotwood, Ohio, a suburb of the city of Dayton; all that remains of his farm is the farmhouse itself, now used as a residence.  A residential street about a quarter of a mile away from the house is named Filbrun Lane in honor; almost none of the land appears to be in use for agriculture today.

Angel Raich was an active marijuana legalization and medical use advocate through early 2013. In late 2012, she was diagnosed with radiation necrosis affecting the portions of her brain near her tumor. Also with the assistance of counsel, she co-filed an amicus brief in the case of Department of Health & Human Services v. Florida, a challenge to the individual mandate segment of the PPACA, arguing that the individual mandate exceeded the fair scope of the Commerce Clause. This legal theory was not formally resolved; the Supreme Court found that the individual mandate was a proper exercise of Congress’ power to impose taxes.

She and Robert Raich divorced several years ago; Robert Raich continues to practice law focusing on the issue of marijuana regulation. She now goes by the name Angel Galvez-Raich but has not been publicly active since her diagnosis took a turn for the worse in 2013. After the loss of the Gonzalez case, Raich’s co-plaintiffs (two of whom, who worked at the Oakland dispensary the two named plaintiffs used remained anonymous to the public) chose to withdraw from the public view, and their fates are not readily researchable.