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Scholar's Forum

george d. brown


Illustration by Chris Sharp

One of the legacies of the William Rehnquist Court will certainly be the New Federalism—a concern for the rights and prerogatives of states in the overall balance of power between the different levels of government in America. The Rehnquist Court often tilted towards the states, almost invariably by a slender 5-4 majority. States were granted freedom from some suits in federal court. Congress was told it couldn’t always “commandeer” state and local officials to
administer federal programs. Most controversially, the Court held that there are limits on the Commerce Clause as a grant of power to the national government. The 1995 United States v. Lopez decision sent shockwaves through the legal academy. It was the first Supreme Court case to strike down a federal statute on Commerce Clause grounds since the early New Deal period.

The New Federalism provoked intense debate. Critics accused the Court of hobbling federal power in favor of governments that are backward, often corrupt, and out of touch with national priorities. The New York Times, for example, could be counted on to launch a thunderous critique any time the New Federalist view prevailed. Defenders of these decisions, on the other hand, marshalled a series of arguments in favor of a broad role for state and local governments. They argued that these governments are closer to their citizens, thus permitting them to reflect varying preferences and allow for differences in governance across our diverse country. New Federalists also argued that states can function as laboratories, permitting efforts at different governmental approaches to problems. As for national authority, they pointed out that the Constitution limits it through the grant of a specific number of enumerated powers.

However, a recent major decision showed the limit of the New Federalism. Gonzales v. Raich involved California’s effort to allow medical use of marijuana when prescribed by a medical professional. The state’s Compassionate Use Act sets forth detailed procedures for the use of marijuana in defined circumstances. Allowing any use of marijuana, for medical purposes or not, runs directly contrary to the federal Controlled Substances Act (CSA). The CSA classifies marijuana as a Schedule 1 drug, thus, effectively banning it. The New Federalist case for allowing the California law to go forward seems clear. The state is performing the important laboratory function, in a difficult and controverted area, as well as reflecting its citizens’ preferences. The Commerce Clause lets the federal government regulate interstate traffic in drugs but, the argument runs, does not reach purely intrastate manifestations of behavior that might be permitted under California law.

Matters came to a head in a case involving two Californians who used marijuana as state law permitted. They won an important victory in the Ninth Circuit Court of Appeals, which ruled that the federal CSA would be unconstitutional if applied to them. However, the Supreme Court, by a majority of 6-3, reversed the Ninth Circuit, ruling in favor of federal law. According to the majority, it was indeed all a matter of commerce. Congress clearly could regulate interstate traffic in drugs, and it made no difference that the regulation took the form of a ban. What about the purely intrastate dimensions of the problem like those present in Raich? Here, the Court reached back in time and drew upon Wickard v. Filburn, an old chestnut most readers will remember
from law school.

Wickard involved the regulation of wheat and farmer Filburn’s attempt to grow wheat for personal consumption. He was not a direct participant in interstate commerce, but the Court viewed homegrown wheat as part of the overall market that Congress was trying to regulate. Filburn’s wheat could affect supply if it entered the market. If it didn’t, his consumption of his own wheat would also have an effect on the market by undercutting Congress’ efforts to sustain it. Moreover, the Court ruled that Congress could look not just at Filburn, but at all small farmers engaged in similar practices. Thus, his activities had a “substantial effect” on interstate commerce.

The Raich Court applied Wickard to the “local” marijuana cultivated in California and consumed in accordance with the Compassionate Use Act. The majority viewed the drugs as potentially part of the overall supply, and also viewed their availability as harming federal regulation of the interstate market by undercutting efforts to stamp out that trade. After all, could law enforcement agents know when they were dealing with local marijuana and when they weren’t?

A difficult question is whether every individual case permits a challenge to the law on differing facts and circumstances. The Court allowed this challenge, but intimated that an endless parade of attacks on the federal statute would not be permitted. However, it is important to keep the way open for such challenges.

Three of the strongest New Federalist justices dissented. They saw the role of the states as seriously downgraded, even as national power over intrastate matters was unduly aggrandized. California was performing the classic laboratory function. Equally important, Congress' power over interstate drug traffic should not reach small scale cases like Raich. They also expressed grave misgivings about the growing national presence in criminal law, an area which they viewed as traditionally a dominant field of state activity.

The decision is unquestionably a setback for the New Federalism. The Ninth Circuit and the Supreme Court dissenters advocated a division of responsibilities in which the state role would overcome any claims for the supremacy of federal law. On the other hand, the decision is not a rollback of the New Federalism. The majority stressed the economic nature of the problem Congress was dealing with, and emphasized federal power when dealing with matters that could be easily labeled as such. Use of this same analysis had provoked heated dissent from nationalist members of the Court such as Justices Stephen Breyer and David Souter when it played a major role in Lopez. In their view, American society is so interconnected that the notion of commerce reaches virtually all facets of activity. It is not clear what, if any, role for the states would remain under their philosophy. Perhaps it is a choice between the New Federalism and Nonfederalism.

Raich seems like a middle-of-the-road decision—an application of well established law that gave the national government a victory while upholding a key concept of Lopez, a major New Federalist decision. We have not heard the last word on Federalism. Given the nature of the American system, it is doubtful we ever will.

Professor George Brown is a specialist in the field of federal-state relations and government ethics. His extended article on the impact of Raich on the New Federalism is forthcoming in the Ohio State Law Journal. He teaches Constitutional Law, Election Law, and Federal Criminal Law.