Gonzales v. Raich

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Gonzales v. Raich
Seal of the United States Supreme Court.svg
Argued November 29, 2004
Decided June 6, 2005
Full case name Alberto Gonzales, Attorney General, et al. v. Angel McClary Raich, et al.
Citations 545 U.S. 1 (more)
125 S. Ct. 2195; 162 L. Ed. 2d 1; 2005 U.S. LEXIS 4656; 73 U.S.L.W. 4407; 18 Fla. L. Weekly Fed. S 327
Argument Oral argument
Prior history Raich v. Ashcroft, 248 F. Supp. 2d 918 (N.D. Cal.), rev'd, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 542 U.S. 936 (2004)
Subsequent history None
Congress may ban the use of marijuana even where states approve its use for medicinal purposes.
Court membership
Case opinions
Majority Stevens, joined by Kennedy, Souter, Ginsburg, Breyer
Concurrence Scalia
Dissent O'Connor, joined by Rehnquist (part I, II), Thomas (parts I, II)
Dissent Thomas
Laws applied
U.S. Const. art. I, § 8, cl. 3, 18 (the Commerce and Necessary and Proper Clauses); Controlled Substances Act, 21 U.S.C. §§ 801–971 (2000); Compassionate Use Act of 1996, Cal. Health & Safety Code § 11362.5 (West Supp. 2005)

Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), was a decision by the United States Supreme Court ruling that under the Commerce Clause of the United States Constitution, the United States Congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes.


California voters passed Proposition 215 in 1996, legalizing the medical use of marijuana. The United States Federal Government has limited the use of marijuana since the 1937 Marijuana Tax Act came into effect. Defendant Angel Raich used homegrown medical marijuana, which was legal under California law, but illegal under federal law. On August 15, 2002, Butte County Sheriff's Department officers and agents from the federal Drug Enforcement Administration (DEA) destroyed all six of California resident Diane Monson's marijuana plants, facing light resistance. The marijuana plants were illegal Schedule I drugs under the federal Controlled Substances Act (CSA). CSA is Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Monson and Angel Raich sued, claiming that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment to the United States Constitution, the Ninth Amendment to the United States Constitution, the Tenth Amendment to the United States Constitution, and the doctrine of medical necessity.

Angel Raich's physician has stated that, without marijuana, Angel's life is threatened by excruciating pain. California was one of fourteen states (now twenty three) that allowed medicinal use of marijuana. California's Compassionate Use Act allows limited use of marijuana for medicinal purposes.

The case of Raich and Monson against the government

Angel Raich of Oakland, California, Diane Monson of Oroville, California, and two anonymous caregivers sued the government for injunctive and declaratory relief on October 9, 2002 to stop the government from interfering with their right to produce and use medical marijuana claiming that the Controlled Substances Act was not constitutional as applied to their conduct. Raich and Monson were represented by Randy Barnett.[1]

Angel Raich claimed she used marijuana to keep herself alive. She and her doctor claimed to have tried dozens of prescription medicines for her numerous medical conditions, and that she was allergic to most of them. Her doctor declared under oath[2] that Raich's life was at stake if she could not continue to use marijuana. Diane Monson suffered from chronic pain due to a car accident a decade before the case. She used marijuana to relieve the pain and muscle spasms around her spine.

The government's case

The Controlled Substances Act does not recognize the medical use of marijuana. Agents from the federal Drug Enforcement Administration (DEA) were assigned to break up California's medical marijuana co-ops and seize their assets. This activity was the result of the belief that federal law preempted that of California. The government argued that if a single exception were made to the Controlled Substances Act, it would become unenforceable in practice. The government also contended that consuming one's locally grown marijuana for medical purposes affects the interstate market of marijuana, and hence that the federal government may regulate—and prohibit—such consumption. This argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops, due to the aggregate effect of individual consumption on the government's legitimate statutory framework governing the interstate wheat market.


On December 16, 2003, the Ninth Circuit Court of Appeals granted a preliminary injunction to prevent the federal government from interfering with Raich and Monson. In their ruling, they declared: "We find that the appellants have demonstrated a strong likelihood of success on their claim that, as applied to them, the Controlled Substances Act is an unconstitutional exercise of Congress' Commerce Clause authority.."

Organizations involved

Partnership for a Drug-Free America, several other anti-drug organizations,[3] an alliance of seven congressmembers including Mark Souder and Katherine Harris all filed amicus briefs for the side of federal government.[4] The environmentalist group Community Rights Council also filed a brief for the government, fearing limitation of federal power would undermine their agenda.[5]

The Cato Institute,[6] Institute for Justice,[7] many libertarian organizations, and NORML, along with other groups opposing the War on Drugs, filed briefs for Raich and Monson. The governments of California, Maryland, and Washington also filed briefs supporting Raich. The attorneys general of Alabama, Louisiana, and Mississippi, three strongly anti-drug states from the usually conservative South, filed a brief supporting Raich on the grounds of states' rights.[8]

The decision

The ruling was 6-3 with Justice Scalia joining Justices Kennedy, Stevens, Ginsburg, Souter and Breyer for the majority.

The opinion began by pointing out that the Respondents did not dispute that Congress had the power to control or ban marijuana for non-medical uses:

Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause.

Banning the growing of marijuana for medical use, the Court reasoned, was a permissible way of preventing or limiting access to marijuana for other uses:

Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. 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. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

The majority opinion did not address the contradiction that the respondent's production of marijuana for personal use actually assists Congress' interest in reducing the interstate trade in marijuana, rather than confounding that regulation.

The relevant precedents for the Court's analysis are Wickard v. Filburn (1942), United States v. Lopez (1995) and United States v. Morrison (2000).

Scalia's opinion

Justice Scalia wrote a separate concurrence that had the effect of differentiating the decision from the previous results of United States v. Lopez and United States v. Morrison. In a departure from his texualist interpretation of the constitution (he voted in favor of limits on the Commerce Clause in the Lopez and Morrison decisions), Scalia said that his understanding of the Necessary and Proper Clause caused him to vote for the Commerce Clause with Raich for the following reason:

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”[9]

Dissenting opinions

Justice O'Connor dissented joined by Chief Justice William Rehnquist, author of the majority opinions in United States v. Lopez and United States v. Morrison. O'Connor began her opinion by citing Lopez, which she followed with a reference to Justice Louis Brandeis's dissenting opinion in New State Ice Co. v. Liebmann:

We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U. S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting).[10]

O'Connor concluded:

Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. 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. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.

Justice Thomas also wrote a separate dissent, stating in part:

Respondents Diane Monson and Angel Raich use 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. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.

Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States."


Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.


If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."


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."[11]


Congress is authorized to regulate “Commerce,” and respondents’ conduct does not qualify under any definition of that term.8[note 1] The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from “ ‘[c]ommerce,’ ” ante, at 5, to “commercial” and “economic” activity, ante, at 23, and finally to all “production, distribution, and consumption” of goods or services for which there is an “established . . . interstate market,” ante, at 26. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.


  1. Justice Thomas provided three example definitions for the word "commerce" in his footnote, including (“an interchange of goods or commodities, esp. on a large scale between different countries . . . or between different parts of the same country”), The Random House Dictionary of the English Language 411 (2d ed. 1987)

Subsequent events

Both Raich and Monson have indicated their intention to continue using marijuana for medical use in spite of the ruling and federal law on the subject.

Two days after the ruling, the International Narcotics Control Board issued a statement indicating that the Board "welcomes the decision of the United States Supreme Court, made on 6 June, reaffirming that the cultivation and use of cannabis, even if it is for 'medical' use, should be prohibited." INCB President Hamid Ghodse noted, "Cannabis is classified under international conventions as a drug with a number of personal and public health problems," referring to the drug's Schedule I status under the Single Convention on Narcotic Drugs.[12]

Not long after the decision in Raich, the Supreme Court vacated a lower court decision in United States v. Stewart and remanded it to the court of appeals for reconsideration in light of Raich.[13] On remand, the Ninth Circuit held that Congress had the Commerce Clause power to criminalize the possession of homemade machine guns, just as it had the power to criminalize homegrown marijuana.[14]

In 2007, the Ninth Circuit decided against Angel Raich, when she renewed her litigation on substantive due process grounds. Judge Harry Pregerson, the author of the opinion, noted that a minority of states had legalized medical marijuana, but under Federal law, it is not a recognized "fundamental right" under the due process clause:[15]

For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.[15]

In 2009, the Department of Justice under Attorney General Eric Holder issued new guidelines allowing for non-enforcement of the federal ban in some situations:

It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal.[16][17][18]

When C-SPAN's Brian Lamb interviewed former Justice John Paul Stevens about Stevens' book, Five Chiefs, Stevens cited Gonzales as a case in which he upheld the law while deploring the policy.[19]

In Congress, in order to counter the effect of this ruling, Representative Maurice Hinchey (D-NY) and Dana Rohrabacher (R-CA) annually introduce legislation to stop the Department of Justice from arresting and prosecuting medical marijuana patients.[20] This effort succeeded for the first time, as section 538 of the omnibus federal spending bill for the 2015 fiscal year, enacted on December 16, 2014.[21]

See also


  1. http://www.law.gmu.edu/assets/files/publications/working_papers/06-31.pdf
  2. [1]
  3. [2] Archived October 19, 2004 at the Wayback Machine
  4. [3] Archived October 11, 2006 at the Wayback Machine
  5. Court to Hear Marijuana Case Legality of Cultivating Plant for Medical Use Is at Issue Charles Lane, The Washington Post, November 29, 2004
  6. Cato Institute Amicus Brief from cato.org
  7. [4] Archived February 2, 2007 at the Wayback Machine
  8. Raich v. Ashcroft – A Guide to the Supreme Court Case DrugWarRant.com
  10. http://wid.ap.org/scotus/pdf/03-1454P.ZD.pdf
  11. http://web.archive.org/web/20060309145249/http://wid.ap.org/scotus/pdf/03-1454P.ZD1.pdf
  12. "US Supreme Court Decision on Cannabis Upholds International Law". INCB. Retrieved 2011-04-20.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  13. United States v. Stewart (2003), 125 S. Ct. 2899 (2005).
  14. United States v. Stewart (2003), 451 F. 3d 1071 (9th Cir. 2006).
  15. 15.0 15.1 Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 2007).
  16. "Attorney General Announces Formal Medical Marijuana Guidelines". Reuters. 2009-02-09. Retrieved 2009-10-21.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  17. http://blogs.usdoj.gov/blog/archives/192
  18. Johnson, Carrie (2009-10-20). "U.S. eases stance on medical marijuana". washingtonpost.com. Retrieved 2009-10-21.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  19. http://www.c-spanvideo.org/program/301441-1 Q&A with John Paul Stevens, Sep 14, 2011.
  20. "In Wake of Supreme Court Ruling, Dozens of Newspaper Editorials Nationwide call on Legislators To Support Federal Amendment to Protect Medical Marijuana Patients". Drugpolicy.org. Retrieved 2011-04-20.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  21. Text of Consolidated and Further Continuing Appropriations Act, 2015

External links