Power to Regulate Commerce: Limits on Congressional Power

Prepared for Members and Committees of Congress

The Commerce Clause of the United States Constitution provides that the Congress shall have the
power to regulate interstate and foreign commerce. The plain meaning of this language might
indicate a limited power to regulate commercial trade between persons in one state and persons
outside of that state. However, the Commerce Clause has never been construed quite so narrowly.
Rather, the clause, along with the economy of the United States, has grown and become more
complex. In addition, when Congress began to address national social problems, the Commerce
Clause was often cited as the constitutional basis for such legislation. As a result, the Commerce
Clause has become the constitutional basis for a significant portion of the laws passed by the
Congress over the last fifty years, and it currently represents one of the broadest bases for the
exercise of congressional powers.
An examination of the United States Code shows that over 700 statutory provisions, covering a
range of issues, explicitly refer to either “interstate” or “foreign” commerce. Over the last decade,
however, the Supreme Court in United States v. Lopez and United States v. Morrison has brought
into question the breadth of the Commerce Clause. While these cases have resulted in the
overturning of a few federal laws, their overall effect has so far been relatively modest in scope. A
recently decided Supreme Court case, Gonzales v. Raich, seems to confirm that the effect of these
previous cases will be limited.

Backgr ound ..................................................................................................................................... 1
Textual Analysis........................................................................................................................2
Drafting and Ratification...........................................................................................................3
Case Law Development............................................................................................................4
The Three Categories of Commerce Clause Jurisprudence.............................................................7
Channels of Commerce.............................................................................................................7
Instrumentalities of Interstate Commerce.................................................................................8
Substantial Impact on Interstate Commerce..............................................................................9
Wickard v. Filburn..............................................................................................................9
Lopez and Morrison..........................................................................................................10
Gonzales v. Raich...............................................................................................................11
Author Contact Information..........................................................................................................16

The Commerce Clause of the United States Constitution provides that the Congress shall have the 1
power to regulate interstate and foreign commerce. The plain meaning of this language might
indicate a limited power to regulate commercial trade between persons in one state and persons
outside of that state. However, the Commerce Clause has never been construed quite so narrowly.
Rather, the clause, along with the economy of the United States, has grown and become more
complex. In addition, when Congress began to address national social problems, the Commerce
Clause was often cited as the constitutional basis for such legislation. As a result, the Commerce
Clause has become the constitutional basis for a significant portion of the laws passed by the
Congress over the last fifty years, and it currently represents one of the broadest bases for the
exercise of congressional powers.
An examination of the United States Code shows that more than 700 statutory provisions
explicitly refer to either “interstate” or “foreign” commerce, covering a significant number of 23456
issues. These issues include agriculture, banking, antitrust, securities, business regulation, 7891011
energy regulation, hazardous substances, consumer credit, sports regulation, the internet, 1213141516
endangered species, civil rights, child support, child pornography, abortion, criminal 171819202122
law, controlled substances, food, firearms control, terrorism, obscenity, gambling

1 U.S. CONST., Art. I, §8, cl. 3.
2 See, e.g., 7 U.S.C. § 6a (2005)(prohibition on excessive commodity speculation); 7 U.S.C. § 6b (2005)(prohibition on
fraud, false reporting, or deception in commodities).
3 See, e.g., 12 U.S.C. § 95 (2005)(regulation of the banking business; powers and duties of national banks); 12 U.S.C. §
2501 (2005)(disposition of abandoned money orders and travelers checks).
4 See, e.g., 15 U.S.C. § 26b (2005) (application of the antitrust laws to professional major league baseball).
5 See, e.g., 15 U.S.C. § 77e (2005)(domestic securities; prohibitions relating to interstate commerce and the mails); 15
U.S.C. § 77l (2005)(civil liabilities arising in connection with prospectuses and communications.
6 15 U.S.C. § 79h (2005)(public utility holding companies; acquiring interest in electric and gas companies serving
same territory); 15 U.S.C. § 79i (2005)(public utility holding companies; acquisition of securities and utility assets and
other interests).
7 See, e.g., §15 U.S.C. § 715b (2005)(interstate transportation of petroleum products; interstate transportation of
contraband oil forbidden);15 U.S.C. § 717 (2005)(natural gas; regulation of natural gas companies); 16 U.S.C. § 813
(power entering into interstate commerce; regulation of rates, charges).
8 See, e.g., 15 U.S.C. § 1263 (2005)(hazardous substances; prohibited acts); 15 U.S.C. § 1265 (2005)(hazardous
substances; seizures); 15 U.S.C. § 1270 (2005)(hazardous substances; examinations and investigations); 15 U.S.C. §
1271 (2005)(hazardous substances; records of interstate shipment).
9 See, e.g., 15 U.S.C. § 1644 (2005)(consumer credit protection; fraudulent use of credit cards; penalties); 15 U.S.C. §
1679a (2005)(consumer credit protection; credit repair organizations).
10 See, e.g., 15 U.S.C. § 6307b (2005)(professional boxing safety; protection from coercive contracts).
11 See, e.g., 15 U.S.C. § 7704 (2005)(non-solicited pornography and marketing; protections for users of commercial
electronic mail).
12 16 U.S.C. § 1538 (2005)(endangered species; prohibited acts).
13 See, e.g., 18 U.S.C. § 245 (2005)(civil rights; federally protected activities); 42 U.S.C. § 2000a (2005)(civil rights;
prohibition against discrimination or segregation in places of public accommodation).
14 18 U.S.C. § 228 (failure to pay legal child support obligations).
15 18 U.S.C. § 2251 (sexual exploitation of children).
16 18 U.S.C. § 1531 (partial-birth abortions prohibited).
17 There are over a hundred criminal laws which use the terminterstate commerce. See, e.g., 18 U.S.C. § 1033
(2005)(fraud and false statements; crimes by or affecting persons engaged in the business of insurance whose activities

devices,23 labor,24 industrial safety,25 pensions,26 environmental law,27 fish and wildlife,28 medical 293031323334
products, water pollution, atomic energy, shipping, motor vehicle safety, airplanes and 35
tort litigation.
Recent Supreme Court case law, however, has brought the limits of the Commerce Clause into 36
question. While these cases have resulted in the overturning of federal laws, their overall affect
has so far been relatively modest in scope. A recently decided Supreme Court case, Gonzales v. 37
Raich, seems to confirm that the effect of these previous cases will be limited.
The Commerce Clause provides that “The Congress shall have Power . . . To regulate Commerce
with foreign Nations, and among the several States, and with the Indian Tribes.” The word

affect interstate commerce); 18 U.S.C.§ 33 (destruction of motor vehicles or motor vehicle facilities); 18 U.S.C. § 1952
(interstate and foreign travel or transportation in aid of racketeering enterprises); 18 U.S.C. § 1958 (use of interstate
commerce facilities in the commission of murder-for-hire).
18 See, e.g., 21 U.S.C. § 801 (2005)(drug abuse prevention and control; congressional findings and declarations); 21
U.S.C. § 863 (2005)(drug abuse prevention and control; drug paraphernalia).
19 See, e.g., 21 U.S.C. § 602 (meat inspection; congressional statement of findings).
20 See, e.g., 26 U.S.C. § 5861 (2005)(machine guns, destructive devices, and certain other firearms; prohibited acts).
21 See, e.g.,18 U.S.C. § 2332a (use of weapons of mass destruction).
22 18 U.S.C. § 1462 (importation or transportation of obscene matter).
23 See, e.g., 15 U.S.C.. § 1172 (2005)(transportation of gambling devices as unlawful; exceptions; authority of Federal
Trade Commission ).
24 See, e.g., 29 U.S.C. § 207 (2005)(fair labor standards; maximum hours).
25 See, e.g., 29 U.S.C. § 651 (2005)(occupational safety and health; congressional statement of findings and declaration
of purpose and policy).
26 See, e.g., 29 U.S.C. § 1001 (2005)(employee retirement income security program; congressional findings); 29 U.S.C.
§ 1001a (2005)(employee retirement income security program; additional findings).
27 See, e.g., 33 U.S.C. § 1322 (2005)(water pollution prevention and control; marine sanitation devices); 42 U.S.C. §
7671d (2005)(stratospheric ozone protection; phase-out of production and consumption of class II substances).
28 16 U.S.C. § 3372 (2005)(fish and wildlife; prohibited acts).
29 See, e.g., 42 U.S.C. § 262 (2005)(licensing of biological products and clinical laboratories; regulation of biological
30 See, e.g., 42 U.S.C. § 300j-23 (2005)(safety of public water systems; drinking water coolers containing lead).
31 See, e.g., 42 U.S.C. § 2012 (2005)(atomic energy; findings); 42 U.S.C. § 2019 (2005)(atomic energy: applicability of
federal power act ); 42 U.S.C. § 2073 (2005)(special nuclear material; domestic distribution of special nuclear
32 See, e.g., 46 U.S.C. § 4307 (2005)(recreational vessels; prohibited acts); 46 U.S.C. § 4311 (2005)(recreational
vessels; penalties and injunctions); 46 U.S.C. appendix § 801 (2005)(shipping act; definitions).
33 See, e.g., 49 U.S.C. § 30101 (2005)(motor vehicle safety; purpose and policy); 49 U.S.C. § 30112 (2005)(motor
vehicle safety; prohibitions on manufacturing, selling, and importing noncomplying motor vehicles and equipment); 49
U.S.C. § 30123 (2005)(motor vehicle safety; tires).
34 See, e.g., 49 U.S.C. § 40116 (2005)(air commerce and safety; state taxation).
35 P.L. 109-2 (Class Action Fairness Act of 2005).
36 United States v. Lopez, 514 U.S. 549, 561 (1995); United States v. Morrison, 529 U.S. 598 (2000).
37 ___ U.S. ___, 125 S. Ct. 2195 (2005).

“commerce” appears to have the same primary meaning today as it did in 1789 – “an interchange
of goods or commodities between different countries or between areas of the same country” or in 38
other words “trade.” However, commentators have argued that a secondary meaning of
commerce which was understood at the time of the drafting of the Constitution includes all 39
productive activity which relates to commerce, such as manufacturing and agriculture.
A further question is then raised whether Congress’s power to regulate commerce is significantly
limited by the phrase “with foreign Nations, and among the several states, and with the Indian
Tribes.” For instance, the phrase “among the several States” could either be interpreted as
“between people of different states” or more broadly as “between people who live in the various
states.” Some have argued that the broader definition, which would cover commerce between 40
people of the same state, would render the phrase “among the several States” superfluous. This
question, generally characterized as whether the power to regulate “interstate commerce” extends
to “intrastate” commerce has been mostly settled by case law, and most “intrastate” commercial 41
transactions are vulnerable to some form of federal regulation.
The integration of commercial activities in the United States was a central theme of the 42
Constitutional Convention of 1787. It appears, however, that the parameters of the Commerce 43
Clause were not of particular concern to the framers of the Constitution. The commentary
contemporary to the Constitution on the power did not concern itself with the federalism
implications of managing interstate economic transactions, but rather focused on the issue of 44
foreign trade. The primary purpose of the clause appears to have been raising federal revenue by 45
the nationalization of the states’ power to impose import tariffs, while a secondary purpose was

38 Grant Nelson and Robert Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold
Federal Commercial Regulations but Preserve State Control Over Social Issues, 85 Iowa L. Rev. 1, 101 n 478 (2001).
As will be discussed later, a requirement that the thing to be regulated becommercial or “mercantile,” has, to some
extent, been used by the Supreme Court to limit the commerce power to “commercial activities. See United States v.
Lopez, 514 U.S. 549, 561 (1995); United States v. Morrison, 529 U.S. 598, 617 (2000).
39 Grant Nelson and Robert Pushaw, Jr., supra footnote 38, at 14-15.
40 Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101, 132 (2001).
41 See “Case Law Development,infra.
42 Virginia and Maryland had just finished a compact regarding the navigation and jurisdiction of the Chesapeake Bay
and the Potomac. The commissioners who had negotiated this treaty called for a general trade convention, and various
other states responded by appointing delegates to this convention. Only when it became clear that this convention might
address other issues did the Continental Congress approve of it. J. Story, Commentaries on the Constitution of the
United States 252-54.
43 Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 MINN. L. REV.
432, 443-44 (1941); Greenspan, The Constitutional Exercise of the Federal Police Power: A Functional Approach to
Federalism, 41 VANDERBILT LAW REVIEW 1019, 1022-24 (1988).
44 Those materials which do address congressional control over commerce focus on the necessity of uniformity in
matters of foreign commerce, although the drafters clearly intended domestic commerce to be regulated as well. P.
Kurland & R. Lerner, THE FOUNDERS CONSTITUTION 477-528 (1987).
45 Alexander Hamilton, CONTINENTALIST, No. 5, 18 Apr. 1782 (Paper 3:75-82) as reprinted in P. Kurland & R. Lerner,
supra footnote 44 (The vesting of the power of regulating trade ought to have been a principal object of the
confederation for a variety of reasons. It is as necessary for the purposes of commerce as of revenue.) For instance, the
state of New York imposed a 2% impost on imports that moved through the New York Harbor. Calvin Johnson, The
Panda’s Thumb: The Modest and Mercantilist Original Meaning of the Commerce Clause, 13 WM. & MARY BILL OF
RIGHTS JOURNAL 8 (2004). Efforts under the Articles of Confederation to impose a federal impost on imports had been

apparently to allow Congress to regulate and restrict foreign commerce to advance American 46
The argument has been made that while regulating free and fair trade between states was the 47
principal motivation for adopting various other provisions of the Constitution, it may not have
been a strong motivation for the drafting of the Commerce Clause. This is because state
restrictions on trade between states were already prohibited under the Articles of Confederation, 48
and the states generally complied with these restrictions. Consequently, commentary
contemporary to the ratification of the Constitution indicating that the Commerce Clause was
intended to limit state restrictions on interstate commerce was minimal.
In Gibbons v. Ogden, the Supreme Court, in an opinion by Chief Justice Marshall, considered a
challenge to a monopoly on the operation of steam-propelled vessels in New York waters. This
monopoly was challenged by Gibbons, who transported passengers from New Jersey to New
York under an act of Congress. The Chief Justice, in striking down the monopoly, wrote that “the
power over commerce . . . is vested in Congress as absolutely as it would be in a single
government . . .” and that “the influence which their constituents possess at elections, are . . . the 49
sole restraints” on this power.
The Chief Justice went on to write that “[t]he counsel for the appellee would limit [the term
commerce] to traffic, to buying and selling, or the interchange of commodities, and do not admit
that it comprehends navigation. This would restrict a general term, applicable to many objects, to
one of its significations. Commerce, undoubtedly, is traffic, but it is something more—it is
intercourse,” which the Court found easily included the issue of navigation. Marshall did qualify
the word “intercourse” with the word “commercial,” thus retaining the element of monetary
The Court did not soon revisit this expansive view of the Commerce Clause. Instead, over the
next several decades, the Court considered the boundaries of the “dormant Commerce Clause”
doctrine – the implied limitation of the Commerce Clause on a state’s ability to regulate 50
commerce. This, combined with the relatively cautious exercise of the power by the early

blocked by New York. Id. at 11-12. Granting the Congress the power to raise revenue in this manner was seen as an
important way to pay off Revolutionary War debts. Id. at 8-11.
46 For instance, the prospect of excluding British ships from American waters, while never realized, was contemplated
as a retaliation for the exclusion of American ships from the British West Indies. Calvin Johnson, supra footnote 45, at
47 Such provisions include the limitation on state duties and imposts on imports and exports, U.S. CONST. Article I, §
10, cl. 2, as such duties had favored states with deep harbors over neighbor states; the Port Preference Clause, U.S.
CONST., Art. I, § 9, cl. 6, limiting the federal government from imposing preferences for the ports of one state over
another; and the prohibition on states issuing paper money, U.S. CONST., Art. I, § 10, cl. 1, the issuance of which had
allowed states to require the acceptance of devalued money by out-of-state creditors. Id. at 46-48.
48 Id. at 42-42.
49 Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1, 197-98 (1824).
50 For a discussion of this case law, see Martin Redish and Shane Nugent, The Dormant Commerce Clause and the
Constitutional Balance of Federalism, 1987 DUKE L.J. 569 (1987).

Congresses, meant that the Supreme Court did not have occasion to consider the limits of the
Congress’s power under this doctrine for almost sixty years.
When the Court again revisited Congress’s power under the clause, it generally approved of 51
statutes regulating the interstate movement of goods or persons, such as lottery tickets, 5253
adulterated food, or prostitutes. But, during the early 1900s, the Supreme Court was
confronted with statutes which went beyond regulation of trade, and addressed other related
economic activities. Consequently, the Court struck down a series of federal statutes which 54
attempted to extend commerce regulation to activities such as “production,” “manufacturing” or 55
Starting in 1937, however, with the decision in NLRB v. Jones & Laughlin Steel Corporation,56
the Supreme Court held that Congress has the ability to protect interstate commerce from burdens
and obstructions which “affect” commercial transactions. In the NLRB case, the court upheld the
National Labor Relations Act, finding that by controlling industrial labor strife, Congress was 57
preventing burdens from being placed on interstate commerce. Thus, the Court rejected previous
distinctions between the economic activities (such as manufacturing) which led up to interstate
economic transactions, and the interstate transactions themselves. By allowing Congress to
regulate activities which were in the “stream” of commerce, the Court also set the stage for the
regulation of a variety of other activities which “affect” commerce.
Subsequent Court decisions found that Congress had considerable discretion in regulating
activities which “affect” interstate commerce, as long as the legislation was “reasonably” related 58
to achieving its goals of regulating interstate commerce. Thus the Court found that in some
cases, events of purely local commerce (such as local working conditions) might, because of
market forces, negatively affect interstate commerce, and thus would be susceptible to 59
regulation. The Court has also held that an activity which in itself does not affect interstate
commerce could be regulated if all such activities taken together in the aggregate did affect 60
interstate commerce. Under the reasoning of these cases, the Court has upheld many diverse 61
laws, including laws regulating production of wheat on farms, racial discrimination by 6263
businesses, and loan-sharking.

51 Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903).
52 Hippolite Egg Co. v. United States, 220 U.S. 45 (1911).
53 Hoke v. United States, 227 U.S. 308 (1913).
54 United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895).
55 Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936).
56 301 U.S. 1 (1937).
57 301 U.S. at 41.
58 United States v. Darby, 312 U.S. 100 (1941)(approving legislation relating to working conditions).
59 312 U.S. at 121.
60 Wickard v. Filburn, 317 U.S. 111 (1942).
61 Id.
62 Heart of Atlanta Motel v. United States, 370 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 241 (1964).
63 Perez v. United States, 402 U.S. 146 (1971).

In the 1995 case of United States v. Lopez,64 however, the Supreme Court brought into question
the extent to which the Congress can rely on the Commerce Clause as a basis for federal
jurisdiction. Under the Gun-Free School Zone Act of 1990, Congress made it a federal offense for
“any individual knowingly to possess a firearm at a place that the individual knows, or has 65
reasonable cause to believe, is a school zone.” In Lopez, the Court held that, because the act
neither regulated a commercial activity nor contained a requirement that the possession was
connected to interstate commerce, the act exceeded the authority of Congress under the
Commerce Clause. Although the Court did not explicitly overrule any previous rulings upholding
federal statutes passed under the authority of the Commerce Clause, the decision would appear to
suggest new limits to Congress’s legislative authority.
The Lopez case was significant in that it was the first time since 1937 that the Supreme Court
struck down a federal statute purely based on a finding that the Congress had exceeded it powers 66
under the Commerce Clause. In doing so, the Court revisited its prior cases, sorted the
commerce power into three categories, and asserted that Congress could not go beyond these
three categories: 1) regulation of channels of commerce; 2) regulation of instrumentalities of 67
commerce; and 3) regulation of economic activities which “affect” commerce.
Within the third category of activities which “affect commerce,” the Court determined that the
power to regulate commerce applies to intrastate activities only when they “substantially” affect 68
commerce. Still, the Court in Lopez spoke approvingly of earlier cases upholding laws which
regulated intrastate credit transactions, restaurants utilizing interstate supplies, and hotels catering
to interstate guests. The Court also recognized that while some intrastate activities may by
themselves have a trivial effect on commerce, regulation of these activities may be constitutional
if their regulation is an essential part of a larger economic regulatory scheme. Thus, the Court
even approved what has been perceived as one of its most expansive rulings, Wickard v. Filburn, 69
which allowed the regulation of the production of wheat for home consumption.
The Court in Lopez found, however, that the Gun Free School Zones Act fell into none of the
three categories set out above. It held that it was not a regulation of channels of commerce, nor
did it protect an instrumentality of commerce. Finally, its effect on interstate commerce was
found to be too removed to be “substantial.” The Court noted that the activity regulated, the
possession of a gun in a school zone, neither by itself nor in the aggregate affected commercial 70
transactions. Further, the statute contained no requirement that interstate commerce be affected,

64 514 U.S. 549 (1995).
65 18 U.S.C. §922(q)(1)A).
66 Herman Schwartz, Court Tries to Patrol a Political Line, Legal Times 25 (May 8, 1995).
67 The Court failed to note that to some extent, the three categories are intertwined. For instance, the first category, the
regulation of “streams” or “channels” of commerce, allows regulation of the creation, movement, sale and consumption
of merchandise or services. But the initial extension of the “streams” of commerce analysis by the Court to intrastate
trade was justified by theeffect” of these other activities on commerce. See NLRB v. Jones & Laughlin, 301 U.S. 1,
31 (1936). Similarly, the second category, which allows the regulation of such instrumentalities of commerce as planes,
trains or trucks, is also based on the theory that a threat to these instrumentalities “affects commerce, even if the effect
is local in nature. Southern Railway Company v. United States, 222 U.S. 21, 26-27 (1911)(regulation of intrastate rail
traffic has a substantial effect on interstate rail traffic). Thus, the final category identified by the Court appears to be a
catch-all for all other activities which “substantially affect commerce.
68 514 U.S. at 559.
69 Wickard v. Filburn, 317 U.S. 111 (1942).
70 514 U.S. at 564. The Court rejected arguments that possession of guns in school zones affected the national economy
by its negative impact on education. Id.

such as that the gun had been previously transported in interstate commerce.71 Nor was the
criminalization of possession of a gun near a school part of a larger regulatory scheme which did 72
regulate commerce. Finally, the Court indicated that criminal law enforcement is an area of law 73
traditionally reserved to the states. Consequently, the Court found that Congress did not have
the authority to pass the Gun Free School Zone Act.
The Court also discussed the absence of legislative findings with respect to the statute’s effect on 74
interstate commerce. While noting that Congress is not formally required to make such findings,
the Court nevertheless held that “to the extent that congressional findings would enable us to
evaluate the legislative judgment that the activity in question substantially affected interstate
commerce, even though no such substantial effect was visible to the naked eye, they are lacking 75
Although the Supreme Court has confirmed the dictates of Lopez in the case of United States v. 76
Morrison, discussed infra, both of these decisions dealt primarily with the issue of “substantial
impact” on commerce. However, as noted, the Court has identified two other categories of power
that Congress has under the Commerce Clause – regulation of channels of commerce and
regulation of instrumentalities of commerce – that have been interpreted almost as broadly. Thus,
an evaluation of the impact of these cases requires an examination of all three categories of

The channels of commerce doctrine has been interpreted so as to represent a broad power to
regulate. To begin with, this category is the basis for a variety of statutes that directly regulate the
movement of persons or goods across state lines. For instance, the United States Code contains
extensive references to mailing or shipping material in interstate commerce, including regulations 777879
or bans on shipping biological agents, counterfeit documents, explosives, or threatening 80
Of more significance is that the Court has not required that any nexus exist between the time that
a person crosses a state border and the time they engage in a prohibited activity. For instance, in

71 514 U.S. at 561.
72 514 U.S. at 560.
73 514 U.S. at 580 (Kennedy, J., concurring).
74 Id.
75 Id. at 563.
76 529 U.S. 598 (2000).
77 18 U.S.C. § 175b.
78 18 U.S.C. § 514.
79 18 U.S.C. § 842.
80 18 U.S.C. § 876.

United States v. Sullivan,81 the Court addressed the application of § 301k of the Federal Food,
Drug and Cosmetic Act to a local pharmacist. The section prohibits the “doing of any . . . act with
respect to, a . . . drug . . . if such act is done while such article is held for sale after shipment in
interstate commerce and results in such article being misbranded.” The pharmacist was charged
with “misbranding” sulfathiazole by not providing sufficient information regarding dosage and
The Court in Sullivan relied on previous precedent finding that Congress has not only the power
regulate commerce among the states, but also the power to “keep the channels of such commerce 82
free from the transportation of illicit or harmful articles.” The fact that the defendant here had
bought the item after it had passed over state lines was not found to be of constitutional 83
significance. Thus, the Court appears to require only that the criminal activity in question has
some relation to the crossing of state lines.
Consistent with this line of reasoning, there are laws, such as criminal prohibitions on mail 84
fraud, where the material is regulated not because it is by nature harmful, but rather because it
relates to other behavior which is criminal. Or, there are laws prohibiting crimes based on a
person crossing the state line with the intent to commit the sexual abuse of minors, where it is the 85
activity engaged in after the line is crossed that is criminal. Finally, there are laws that regulate
activities which utilize materials after they have been shipped in interstate commerce, even if the 86
materials were perfectly legal when they were transported.
Ultimately, based on cases such as Sullivan, it would appear that statutes that would otherwise be
in violation of the limitations of Lopez could be approved by courts because of the presence of the
jurisdictional element that an item related to the crime had crossed a state line. Under this
reasoning, the gun possession law struck down in Lopez, which has since been amended to 8788
require that the gun had previously been shipped in interstate commerce, would be upheld.
Thus, an expansive reading of the channels of commerce doctrine would appear to stand in the
way of a limited interpretation of the Commerce Clause.
Under the “instrumentalities of commerce” category, Congress may properly make whatever
regulations it sees fit for the safety, efficiency, and accessibility of the nationwide transportation 89
and communications networks. For instance, in Preseault v. I.C.C., the Court considered
whether Congress could prevent the reversion of railroad rights-of-way to property owners after

81 332 U.S. 689 (1948).
82 McDermott v. Wisconsin, 228 U.S. 115, 128 (1913).
83 332 U.S. at 697-98.
84 18 U.S.C. § 1341.
85 18 U.S.C. § 2241.
86 18 U.S.C. § 2252(a)(4)(B)(distributing child pornography where materials used have traveled in interstate
87 18 U.S.C. § 922(q)(2)(see Historical Notes).
88 But see United States v. McCoy, 323 F.3d 1114, 1124- 1126 (9th Cir. 2003) (reversing a conviction for possession of
child pornography where jurisdiction was based on movement of photographic materials over state lines).
89 494 U.S. 1 (1990).

abandonment in order to create recreational trails. The I.C.C. argued that turning the right-of-
ways into recreation trails was preserving the rail corridors for future railroad use. Despite
arguments that the preservation argument was a pretext, the Court held that it must defer to a
congressional finding that a regulated activity affects interstate commerce “if there is any rational 90
basis for such a finding.”
The instrumentalities of commerce category represents yet another significant basis for expansive
congressional authority. As noted previously, federal mail and wire fraud statutes make it a crime
to engage in fraud while using the telephone or the mails. By analogy, Congress could reach
many other activities that utilize these networks or similar networks such as railroads, interstate
highways, and even the Internet. While this category has not been fully occupied by Congress, it
would appear that a significant amount of federal power could be exercised in this manner, 91
regardless of whether the matter regulated involved non-economic activity. The Court has not
yet indicated whether the Lopez requirement that regulated activities have some connection to a
commercial activity would be applicable in this category.
The third prong of Congress’s power to regulate under the Commerce Clause involves those
activities that have a substantial impact or effect on interstate commerce. To fully understand the
scope and reach of this power, it is important to begin with an examination of the Court’s 1942 92
decision in Wickard v. Filburn, which led to the expansive view of the Commerce Clause that
Congress operated under until 1995. In Wickard, the Court was asked to determine whether, under
the Commerce Clause, amendments to the Agricultural Adjustment Act of 1938 implementing a
quota system to restrict the amount of wheat that could be harvested and sold, applied to 93
individuals who produced and consumed homegrown bushels of wheat.
In upholding the statute as constitutional, the Court held that economic activities, regardless of
their nature, could be regulated by Congress if the activity “asserts a substantial impact on 94
interstate commerce . . . .” The Court reasoned that the growing of wheat, even if only for a
family’s personal consumption, provided an alternative to the marketplace that was both viable 95
and competitive. Although the Court admitted that one family’s production alone would likely
have a negligible impact on the overall price of wheat, if combined with other personal producers 96
the effect would be substantial enough to make the activity subject to congressional regulation.
The rationale of combining individual effects to find substantial impacts on interstate commerce

90 494 U.S. at 17, citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276 (1981).
91 See Jesse Choper, Taming Congress’s Power Under the Commerce Clause: What Does the Near Future Portend, 55
ARK. L. REV. 731, 761-762 (2003).
92 Wickard v. Filburn, 317 U.S. 111, 113-114 (1942).
93 In 1941, Mr. Filburn harvested an excess amount of 239 bushels for which he was fined $117.11 pursuant to
amendments to the Agricultural Adjustment Act of 1938. Id. at 114.
94 Id. at 125.
95 Id. at 128.
96 Id.

has become known as the “aggregation theory,” and arguably represents the most far reaching 97
example of Congress’s authority to regulate under the Commerce Clause.
After Wickard, the Court consistently held that a “rational basis” existed for Congress to enact 98
laws under the theory that the regulated behavior substantially affected interstate commerce.
Despite the consistency of these decisions, it was not always clear whether the activity in question
met the “substantially affects” test. Then in 1995, when the Court decided the Lopez case, as
discussed previously, it explored the limits of the “substantially affects” test.
Subsequently, in United States v. Morrison,99 the Court invalidated a portion of the Violence
Against Women Act, which specifically created a private right of action against anyone who
committed such a crime, allowing an injured party to obtain damages and other compensatory 100
relief. Applying its holding in Lopez, the Court concluded that the activity regulated by the Act
could not be classified as “economic activity,” and therefore the aggregation principle established
by Wickard did not apply. The Court, however, stopped short of establishing a rule that all non-101
economic activity cannot be aggregated. In addition, the Court concluded that the Act
contained no jurisdictional element connecting the creation of a federal cause of action for 102
gender-motivated violence to Congress’s power to regulate interstate commerce.
Further, while in Morrison, unlike in Lopez, there were numerous congressional findings, the
Court stressed that although findings by the legislative branch can serve to illuminate the
relationship between the regulation and interstate commerce, constitutionality ultimately turns on 103
the legal aspects of the substantial effects doctrine, and therefore, is for the Court to decide. In
this case, the Court found that the legislative findings detailing the effects on interstate commerce
by gender motivated violence were based in large part on the “costs of crime,” which was nearly 104
identical to the reasoning expressly rejected by the Court in Lopez.
Finally, the Court considered the level of attenuation between the regulated activity and its effect
on interstate commerce. In this case, the Court concluded that the regulation of gender-motivated

97 See United States v. Lopez, 514 U.S. 549, 560 (1995).
98 See e.g., Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-280 (1981); Perez v.
United States, 402 U.S. 146, 155-156 (1971); Katzenbach v. McClung, 379 U.S. 294, 299-301 (1964); Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 252-253 (1964).
99 United States v. Morrison, 529 U.S. 598 (2000).
100 42 U.S.C. § 13981 (2000). In Morrison, a female plaintiff brought suit under the Act against two men who had
allegedly assaulted and raped her. The plaintiff asserted that her right to be free from gender associated violence had
been violated, and therefore, she was entitled to monetary damages. See Morrison, 529 U.S. at 599 (2000).
101 Id. (stating thatwhile we need not adopt a categorical rule against aggregating the effects of any non-economic
activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause
regulation of interstate activity only where that activity is economic in nature.”).
102 Id. (holding that because of the lack of jurisdictional element, “Congress elected to cast § 13981s remedy over a
wider, and more purely intrastate, body of violent crime).
103 Id.
104 Id. at 615 (stating that the reasoning of Congress would supply it with the power to “regulate any crime as long as
the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit or

violent crime was not directed at the instrumentalities, channels or goods involved in interstate 105
commerce, and was therefore beyond the scope of Congress’s authority.
In sum, after Lopez and Morrison, the test to determine whether a regulation has a substantial
effect on interstate commerce requires reviewing courts to consider the following four factors: (1)
whether the regulated activity is commercial or economic in nature; (2) whether an express
jurisdictional element is provided in the statute to limit its reach; (3) whether Congress made
express findings about the effects of the proscribed activity on interstate commerce; and (4)
whether the link between the prohibited activity and the effect on interstate commerce is 106
After the decision in Lopez and Morrison, the question arose as to whether these cases were a
harbinger of future restrictions on Congress’s power to legislate. Arguably, the Court had intended
Lopez and Morrison to have a limited effect, as the Court specifically reaffirmed much of its
previous Commerce Clause case law. Further, the statutory provisions challenged in Lopez
(criminal penalties for gun possession in or near schools) and Morrison (civil suits for gender-
motivated crime) were relatively unusual for statutes based on the commerce clause in that they
did not contain a specific requirement that the activities be related to commerce. In addition,
while broad economic regulation may have noneconomic elements (e.g., record-keeping
requirements), the provisions in question were activities were not associated with such larger
Accordingly, when provisions contained in broader regulatory schemes were challenged after
Lopez and Morrison, the lower courts generally upheld these under a “broader scheme” 107
doctrine. This doctrine is largely derived from language in Lopez that arguably permits
congressional regulation of noneconomic activity if the regulation is “an essential part of a larger
regulatory scheme, in which the regulatory scheme would be undercut unless the intrastate 108
activity was regulated.”
Nonetheless, it was suggested by some commentators that certain non-economic provisions of
larger regulatory schemes might also be successfully challenged. These challenges were generally
characterized as “as applied” challenges. Generally, a court reviewing the constitutionality of a 109
federal statute may declare the statute unconstitutional either as invalid on its face, or “as

105 Id. at 618 (holding thatthe regulation and punishment of intrastate violence that is not directed at the
instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States.”).
106 United States v. Stewart, 348 F.3d 1132, 1136-37 (9th Cir. 2003)(citing Morrison, 529 U.S. at 610-12).
107 For example, numerous federal circuit courts have upheld the constitutionality of federal child pornography statutes
that criminalize intrastate possession by finding the activity sufficiently connected to Congresss broader scheme of
regulating the interstate commercial market for child pornography. See e.g., United States v. Adams, 343 F.3d 1024, thth
1034 (9 Cir. 2003); see also United States v. Hampton, 260 F.3d 832 (8 Cir. 2001); United States v. Corp, 236 F.3d ththth
325 (6 Cir. 2001); United States v. Kallestad, 236 F.3d 225 (5 Cir. 2000); United States v. Angle, 234 F.3d 326 (7 st
Cir. 2000); United States v. Rodia, 194 F.3d 465 (3d Cir. 1999); United States v. Robinson, 137 F.3d 652 (1 Cir. th
1998); United States v. Buculei, 262 F.3d 322 (4 Cir. 2001); United States v. Galo, 239 F.3d 572 (3d Cir. 2001); thth
United States v. Bausch, 140 F.3d 739 (8 Cir. 1998); but see United States v. McCoy, 323 F.3d 1114 (9 Cir. 2003); th
United States v. Corp, 236 F.3d 325 (6 Cir. 2001).
108 Lopez, 514 U.S. at 561.
109 According to the Supreme Court, “[a] facial challenge to a legislative Act is, of course, the most difficult challenge

applied” to a particular set of circumstances.110 Utilizing an “as applied” standard, various lower 111
courts struck down particular applications of broader statutory schemes.
When presented with an “as applied” challenge, these courts initially attempted to define the
relevant “class of activity” presented by the facts of the specific case. For instance, in the Ninth
Circuit case of Ashcroft v. Raich, the court considered a challenge to the Controlled Substances
Act. The challenging parties were seriously-ill California residents who had obtained marijuana 112
consistent with California’s Compassionate Use Act but in violation of the federal Controlled 113
Substances Act (CSA). The Ninth Circuit found the class of activity to be the “intrastate,
noncommercial cultivation, possession and use of marijuana for personal medical purposes on the 114
advice of a physician and in accordance with state law.” Having defined the relevant class of
activity, the court proceeded to apply the four factor Morrison test.

to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act
would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987) (holding that the Bail Reform Act of 1984 is not
facially invalid) (emphasis added).
110 An “as applied challenge is less difficult to sustain than a facial challenge because the challenger has to establish
only that the statute is invalid when applied to the specific set of factual circumstances presented. Thus, some scholars
had posited that since Lopez and Morrison were decided, “as applied” challenges to federal statutes for violation of the
Commerce Clause would be more successful than have facial challenges See Brannon P. Denning & Glenn H.
Reynolds, Rulings and Resistance: The New Commerce Clause Jurisprudence Encounters the Lower Courts, 55 ARK.
L. REV. 1253, 1262 (2003) [hereinafter Denning & Reynolds] (noting that a review of lower court decisions between
2000 and 2003 indicates that while only one statute has been found facially unconstitutional, there had been multiple
decisions handed down holding that federal statutes are unconstitutional as applied to their specific facts).
111 Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), rev’d, sub nom. Gonzales v. Raich, ___ U.S. ___, 125 S.Ct. 2195
(2005)(holding that possession of marijuana for medicinal purposes consistent with California state law did not
substantially impact commerce, and thus was outside of Congress authority to regulate); United States v. Stewart, 348 th
F.3d 1132 (9 Cir. 2003) (reversing a possession of an illegal machine-gun conviction because the statute failed to th
satisfy the Lopez/Morrison standard); United States v. McCoy, 323 F.3d 1114 (9 Cir. 2003) (reversing a conviction
for possession of child pornography because the statute failed to provide the necessary relationship to interstate th
commerce to justify Congress’s power); United States v. Lynch, 265 F.3d 758 (9 Cir. 2001) (vacating a Hobbs Act
conviction and remanding to district court for determination of whether the robbery of an individual is within scope of th
statute); United States v. Odom, 252 F.3d 1289 (11 Cir. 2001) (reversing convictions under federal arson statute th
where subject of arson was a church); United States v. Johnson, 246 F.3d 749 (5 Cir. 2001) (refusing to reconsider
prior decision vacating guilty plea of defendant for burning down one-story church building under federal arson th
statute); United States v. Peterson, 236 F.3d 848 (7 Cir. 2001) (granting reversal of Hobbs Act conviction because
there was no evidence of connection with interstate commerce as required by the statute); United States v. Corp, 236 th
F.3d 325 (6 Cir. 2001) (reversing conviction under federal child pornography statute based on interstate movement of
photographic materials where it was conceded that defendant kept pictures for personal use and did not intend to sell or th
trade pictures); United States v. Ryan, 227 F.3d 1058 (8 Cir. 2000) (reversing and remanding a conviction under th
federal arson statute for arson of vacant fitness center); United States v. Wang, 222 F.3d 234 (6 Cir. 2000) (reversing
a Hobbs Act conviction and noting attenuated connection to interstate commerce where criminal act directed toward th
individual as opposed to business); United States v. Ramey, 217 F.3d 842 (4 Cir. 2000) (vacating sentence under
federal arson statute in light of Jones v. United States, 529 U.S. 848 (2000)); United States v. Rayborn, 138 F. Supp. 2d
1029 (W.D. Tenn. 2001) (discussing motion to reconsider dismissal of indictment for arson and finding that the church
was not actively used in interstate commerce and that none of its activities affects interstate commerce).
112 Cal. Health & Safety Code § 11362.5 (1996) (allowing the use of marijuana for medical purposes upon the
recommendation of a licensed physician).
113 21 U.S.C. § 841(a)(1) (2003) (classifying marijuana as aSchedule I controlled substance and as such making it
illegal to “manufacture, distribute or dispense, or possess with the intent to manufacture, distribute, or dispense a
controlled substance” unless provided for in the statute).
114 Id. at 1229.

With respect to the first factor – whether or not the activity is commercial or economic in nature –
the court concluded that the narrow class of activity in this case could not be considered 115
commercial or economic in nature. The court next considered whether the CSA contains an
express jurisdictional element that would limit its reach to those cases that substantially affect
interstate commerce. With no stated analysis, and apparently persuaded by the reasoning of a
district court opinion, the court concluded that “[n]o such jurisdictional hook exists in the relevant 116
portions of the CSA.”
With respect to whether the legislative history contains congressional findings regarding the
effects on interstate commerce, the court was able to cite findings relating to the effect that 117
intrastate drug trafficking activity would have on interstate commerce. While admitting that the
legislative history lends support to the constitutionality of the statute under the Commerce Clause,
the court proceeded to diminish the importance of these findings by arguing that they were not
specific to either marijuana or the medicinal use of marijuana, but rather related to the general 118
effects of drug trafficking on interstate commerce. In addition, the court referred to language in 119
Morrison, discussing the limited role of congressional findings. Moreover, the court referenced
Ninth Circuit precedent concluding that the first and fourth prongs of the Morrison test – whether
the statute regulates an economic enterprise and whether the link is attenuated – are the most 120
significant factors to the analysis.
Finally, with respect to whether the link between the regulated activity and a substantial effect on
interstate commerce is attenuated, the court expressed doubt that the interstate effect of
homegrown medical marijuana is substantial. Citing authority questioning the validity of the 121
federal government’s claim of an effect on interstate commerce, the court concluded that “this
factor favors a finding that the CSA cannot constitutionally be applied to the class of activities at 122
issue in this case.”
The United States Supreme Court granted certiorari specifically on the question of whether the
power vested in Congress by both the “Necessary and Proper Clause,” and the “Commerce
Clause” of Article I includes the power to prohibit the local growth, possession, and use of 123
marijuana permissible as a result of California’s law. Justice Stevens, writing for the majority in
the now-entitled Gonzales v. Raich, reversed the Ninth Circuit’s decision and held that Congress’s

115 Raich, 352 F.3d at 1230 (stating that thecultivation, possession, and use of marijuana for medicinal purposes and
not for exchange or distribution is not properly characterized as commercial or economic activity).
116 Id. at 1231 (citing County of Santa Cruz v. Ashcroft, 279 F. Supp. 2d 1192, 1209 (N.D. Cal. 2003)).
117 Id. at 1232 (citing 21 U.S.C. § 801, which states that “federal control of intrastate incidents of the traffic in
controlled substances is essential to the effective control of the interstate incidents such as traffic.).
118 Id. at 1232.
119 Id. (citing Morrison, 529 U.S. at 614).
120 Id. at 1232-33 (citing United States v. McCoy, 323 F.3d 1114, 1119 (9th Cir. 2003)).
121 Id. at 1233 (quoting Conant v. Walters, 309 F.3d 629, 647 (9th Cir. 2002) (stating that “[m]edical marijuana, when
grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce. Federal
efforts to regulate it considerably blur the distinction between what is national and what is local.”) (Kozinski, J.,
122 Id.
123 Gonzales v. Raich, ___ U.S. ___, 125 S. Ct. 2195 (2005).

power to regulate commerce extends to purely local activities that are “part of an economic class 124
of activities that have a substantial effect on interstate commerce.”
In reaching its conclusions, the Court relied heavily on its 1942 decision in Wickard v. Filburn,
which held that the Agricultural Adjustment Act’s federal quota system applied to bushels of
wheat that were homegrown and personally consumed. Wickard stands for the proposition that
Congress can rationally combine the effects that individual producers have on a commercial 125
market to find substantial impacts on interstate commerce. The Court pointed to numerous
similarities between the facts presented in Raich and those in Wickard. Initially, the Court noted
that because the commodities being cultivated in both cases are fungible and that well-established
interstate markets exist, both markets are susceptible to fluctuations in supply and demand based 126
on production intended for home-consumption being introduced into the national market.
According to the Court, just as there was no difference between the wheat Mr. Wickard produced
for personal consumption and the wheat cultivated for sale on the open market, there is no
discernable difference between personal home-grown medicinal marijuana and marijuana grown 127
for the express purpose of being sold in the interstate market. Thus, the Court concluded that
Congress had a rational basis for concluding that “leaving home-consumed marijuana outside 128
federal control would similarly affect price and market conditions.”
Respondents argued that Wickard was distinguishable because in the case of wheat the activity
involved was purely commercial, and the evidence clearly established that the aggregate
production of wheat had a significant effect on the interstate market. Conversely, respondents
claimed that the activity at issue in Raich is non-commercial – the respondents had never
attempted to sell their marijuana – and Congress had made no finding that the personal cultivation 129
and use of medicinal marijuana has a substantial effect on the interstate marijuana market. The
Court, however, noted that the standard for assessing the scope of Congress’s power under the
Commerce Clause, is not whether the activity at issue, when aggregated, substantially affects
interstate commerce; but rather, whether there exists a “rational basis” for Congress to have 130
concluded as such. The Court, applying this deferential standard, concluded that “Congress had

124 Id. at 2205 (citing Perez v. United States, 402 U.S. 146, 151 (1970)). The final outcome was 6-3 with Justice
Stevens writing for himself and Justices Souter, Kennedy, Breyer, and Ginsburg. Justice Scalia, via a separate opinion,
concurred only in the Court’s judgment. See id. at 2215. Justice OConnor dissented and filed an opinion that both
Chief Justice Rehnquist and Justice Thomas joined in part. See id. at 2221. In addition, Justice Thomas filed his own
dissenting opinion. See id. at 2229.
125 Wickard v. Filburn, 317 U.S. 111, 125 (1942) (holding that, economic activity, regardless of its nature, can be
regulated by Congress if the activityasserts a substantial impact on interstate commerce ...”).
126 Raich, 125 S.Ct. at 2207, n. 29. The Court noted that the while the marijuana market is an illegal or illicit market,
this fact appears to be of no legal or constitutional significance as Congress’s power arguably encompasses both lawful
and unlawful interstate markets. See id. (citing Lopez, 514 U.S. at 571, (Kennedy, J., concurring) (stating that[i]n the
Lottery Case, 188 U.S. 321 (1903), the Court rejected the argument that Congress lacked [the] power to prohibit the
interstate movement of lottery tickets because it had power only to regulate, not to prohibit.”).
127 Raich, 125 S.Ct. at 2207.
128 Id. (stating thatwe had no difficulty concluding that Congress had a rational basis for believing that, when viewed
in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on
price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed
marijuana outside federal control would similarly affect price and market conditions.”) (internal citations omitted).
129 Id.
130 Id. at 2208-09 (citing Lopez, 514 U.S. at 557; see also Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
452 U.S. 264, 276-280 (1981); Perez, 402 U.S. at 155-156).

a rational basis for believing that failure to regulate the intrastate manufacture and possession of 131
marijuana would leave a gaping hole in the CSA.” Moreover, the Court affirmed that
“Congress was acting well within its authority to ‘make all Laws which shall be necessary and 132
proper’ to ‘regulate Commerce ... among the several States.’”
Despite having concluded that under the “rational basis test” Congress had acted within its
constitutional authority when it enacted the CSA and applied it to intrastate possession of
marijuana, the Court nevertheless had to distinguish Lopez and Morrison, the Court’s more recent
Commerce Clause decisions. The Court concluded that the CSA, unlike the statutes in either
Lopez (Gun Free School Zones Act) or Morrison (Violence Against Women Act), regulated
activity that is “quintessentially economic,” therefore, neither Lopez or Morrison cast any doubts 133
on the constitutionality of the statute. The Court specifically rejected the reasoning used by the
Ninth Circuit, concluding that “Congress acted rationally in determining that none of the
characteristics making up the purported class, whether viewed individually or in the aggregate,
compelled an exemption from the CSA; rather, the subdivided class of activities defined by the 134
Court of Appeals was an essential part of the larger regulatory scheme.”
In supporting its conclusions, the Court noted that, by characterizing marijuana as a “Schedule I”
narcotic, Congress was implicitly finding that it had no medicinal value at all. In addition, the
Court returned to the fact that medicinal marijuana was a fungible good, thus making it
indistinguishable from the recreational versions that Congress had clearly intended to regulate.
According to the Court, to carve out medicinal use as a distinct class of activity, as the Ninth
Circuit had done, would effectively make “any federal regulation (including quality, prescription,
or quantity controls) of any locally cultivated and possessed controlled substance for any purpose 135
beyond the ‘outer limits’ of Congress’[s] Commerce Clause authority.” Moreover, the Court
held that California’s state law permitting the use of marijuana for medicinal purposes cannot be
the basis for placing the respondent’s class of activity beyond the reach of the federal
government, due to the Supremacy Clause, which requires that, in the event of a conflict between 136
state and federal law, the federal law shall prevail.
Finally, the Court responded to the respondent’s argument that its activities are not an “essential
part of a larger regulatory scheme” because they are both isolated and policed by the State of 137
California and they are completely separate and distinct from the interstate market. The Court
held that not only could Congress have rationally rejected this argument, but also that it
“seem[ed] obvious” that doctors, patients, and caregivers will increase the supply and demand for 138
the substance on the open market. In sum, the Court concluded that the case for exemption can
be distilled down to an argument that a locally grown product used domestically is immune from

131 See Raich, 125 S.Ct. at 2209.
132 Id.
133 Id. at 2209-10.
134 Id. at 2211.
135 Id. at 2212 (emphasis in original).
136 Id.
137 Id. at 2213.
138 Id. 2213-14 (stating that[i]ndeed that the California exemptions will have a significant impact on both the supply
and demand sides of the market for marijuana is not just ‘plausible’ as the principal dissent concedes, ... it is readily

federal regulation, which has already been precluded by the Court’s decision in Wickard v. 139
Kenneth R. Thomas Todd B. Tatelman
Legislative Attorney Legislative Attorney
kthomas@crs.loc.gov, 7-5006 ttatelman@crs.loc.gov, 7-4697

139 Id. at 2215.