1. Lecture 31 The Commerce Power
Part 8: The Republican Court Era- II

2. This lecture We finish up on the Republican Era cases
Raich v. Gonzales
NFIB v. Sebelius
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Box 7-9 on Page 485 gives a good summary of most of the cases we have read this chapter and will in the next 15 pages

3. Gonzales v. Raich (2005) Gonzales v. Raich (2005) Background
California in 1996 passes a law legalizing medical marijuana
Raich had an inoperable brain tumor and got a prescription to use marijuana- she was too sick to produce her supply so she had two caregivers grow it for her
Monson smoked it to combat back pain and grew her own plants
Local and federal agents came to her home- California found no violation, but the federal government found her in violation of the Controlled Substances Act and took her plants
Her, Raich, and the caregivers sued the AG and head of the DEA to enjoin enforcement of the law for those using marijuana for medical purposes
The plants in no way had any out of state connection
They won at the 9th Circuit

4. Gonzales v. Raich- II Question Arguments
Does the Controlled Substances act exceed the Congress’ power under the Commerce Clause as applied to intrastate growing and possession of marijuana for medical use?
Arguments
For Attorney General Alberto Gonzales (dismiss the lawsuit)
Precedent says Congress has authority to regulate interstate commerce
Congress’ determination of what local activities substantially affect interstate commerce is entitled to substantial deference
Marijuana trafficking is a commercial activity that occurs in foreign and interstate commerce, and thus affects interstate commerce  Congress can therefore regulate all intrastate marijuana activity
Congress has determined that regulation of all intrastate drug activity is essential to regulation interstate drug trafficking and regulation of the controlled substance market

5. Gonzales v. Raich- III Arguments
For Raich (grant the injunction against enforcement)
This is exclusively intrastate activity
Lopez and Morrison were similar
This activity is not commercial and the link between it and interstate commerce is rather spurious
This is also not essential to larger economic regulation

6. Gonzales v. Raich- IV Justice Stevens rules for a 6-3 Court
The challenge here is narrow- to application of the law to the regulation of intrastate manufacture and possession subject to the state law
In this case, again, only the third category of what Congress can regulate is here
Congress has the power to regulate activities that substantially affect intestate commerce
The de minimus character of individual instances is of no consequences
Wickard is important here
Like it, the CSA seeks to control the supply and demand in lawful and unlawful markets
The Court finds there is a rational basis for this conclusion- price and market conditions
In Wickard, the interest in regulation was that homegrown wheat would enter the market frustrating the goal of price stability
Here, the interest is similar- the homegrown product could also enter the market frustrating the purpose of elimination these transactions which are illegal in the market

7. Gonzales v. Raich- V More from Justice Stevens
In Wickard, the interest in regulation was that homegrown wheat would enter the market frustrating the goal of price stability
Here, the interest is similar- the homegrown product could also enter the market frustrating the purpose of elimination these transactions which are illegal in the market
So there is a rational basis for this- failure to regulate intrastate marijuana would leave a big hole in the CSA
It is not important that a few purely intrastate activities might be ensnared
Lopez and Morrison are different in that were looking at non-economic activity
The CSA directly regulates economic and commercial activates
Allowing homegrown product, even for medical purposes will but more marijuana in the market
Criminals could use this exemption to their own devices
So it does not matter that it is never sold on the open market

8. Gonzales v. Raich- VI Justice Scalia, concurring in the judgment
He agrees with the result, but not the reasoning
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. Gonzales v. Raich- VII O’Connor, J. dissenting
Joined by Rehnquist and Thomas
She first praises federalism and laboratories of democracy
California should be allowed to experiment with medical marijuana
But she says she would have voted no herself
She believes the Court’s definition of economic activity is too broad
She says that Lopez and Morrison would put these as non-economic activities
She says it threatens to sweep up nearly every human activity
The ignore the difference between things national and things local- charades
Growers under this act are not likely to have their products go in the illegal market

10. Gonzales v. Raich- VIII Justice Thomas, dissenting
He makes the if Congress can regulate here, it can regulate nearly everything argument as well
His arguments were similar to O'Connor
They could regulate “quilting bees”
He also says the majority is not interpreting the Commerce Clause, but rewriting it
The Obama Administration
They changed course and will no longer prosecute these types of cases
They also allowed the recreational legalizations to go into effect
However, this is executive prosecutorial discretion a different President could start prosecuting violators under the CSA
Chris Christie said he would

11. National Federation of Independent Business v. Sebelius (2012)
Background
This is the challenge to the Affordable Care Act of 2010
The Commerce Clause part of this case centered on economic inactivity
Is that commerce?
This case was decided a few months before the 2012 Presidential election
A key part of the law subject to challenge here was the individual mandate
It required all individuals to have health insurance
If they did not, they would pay a fine
The purpose of the mandate was to broaden the risk in the market for insurance
Lower courts reached differing decisions

12. National Federation of Independent Business v. Sebelius- II
Question (the one applicable here)
Did Congress exceed its authority under the Commerce Clause by requiring most Americans to purchase/have health insurance?
Arguments
For the National Federation of Independent Businesses (strike down the law)
The individual mandate is unprecedented and rests on extraordinary and unbounded assertion of federal power
Congress has the power to regulate commerce, not force on in the market
The government cannot rely on the necessary and proper clause
This is a independent power the Constitution does not grant the federal government

13. National Federation of Independent Business v. Sebelius- III
Arguments
For the United States (law is a proper exercise of power)
Congress has power under the necessary and proper clause because the mandate plays a critical role in a comprehensive regulatory scheme
The mandate is a well adapted means to accomplish a legitimate ends
The regulates economic activity substantially related to interstate commerce
No one is inactive those that choose not to buy are in the market for health care as well

14. National Federation of Independent Business v. Sebelius- IV
Roberts rules 5-4 on the issue of the Commerce Clause
But he actually writes this only for himself
The other conservatives write their own opinion
The Constitution’s grant expressly of some powers makes it clear that it does not grant others the federal government can exercise only powers granted to it
Despite federal government expansion, Congress must still show a grant of power
But this proposition is not the same for states
The power over activities that substantially affect interstate commerce can be expansive
Let the end be legitimate, let it be within the Constitution, and all means which are appropriate- quoting McCulloch
Deference is not absolute however

15. National Federation of Independent Business v. Sebelius- V
More from Roberts
On the Governments arguments
They say it is a valid exercise under the necessary and proper clause and commerce clause
Those that do not have insurance cost each family $1000 a year in higher premiums
Failure to purchase insurance creates cost-shifting issues
He says that Congress has never before tried to compel individuals not engaged in commerce to purchase an unwanted product
It does not seek to regulate existing activities
If Congress could do this under the Commerce Clause, it could force people to do a lot of other things they might not want to do make decisions for a person

16. National Federation of Independent Business v. Sebelius- VI
More from the Chief
On previous precedent
Wickard v. Filburn was a far reaching decision under Commerce clause precedent
But the government could regulate because he was in the market
He says this logic could lead to the government ordering people to buy vegetables to achieve the result of a healthy diet
This would give Congress the power to regulate what we don’t do fundamentally changing the relation between the citizen and the Federal Government
The government seeks to regulate the uninsured as a class
But this will largely affect the young and healthy

17. National Federation of Independent Business v. Sebelius- VII
Yet even more from John Glover Roberts, Jr.
More on the government’s arguments
The Commerce Clause is not a license to regulate from cradle to grave
He also rejects the insurance and financing are inherently integrated
This mandate forces individuals into commerce because the refrained to do so
Necessary and Proper Clause argument
This is not related to some granted power

18. National Federation of Independent Business v. Sebelius- VIII
Ginsburg, J. concurring in part and in judgment, and dissenting in part
Joined by Sotomayor, Breyer and Kagan
She would uphold the mandate
She criticizes Roberts for not following modern precedent and going back in time
Medical care is different virtually every person will eventually use it or need it
50 million have no health care mostly because they can’t afford it or qualify for aid
They consume $100 billion a year in costs
This is different the inability to pay does not mean they do not get it
Hospitals must provide emergency care, even if the person is not able to pay
Therefore, those with insurance subsidize those who do not have it free riders

19. National Federation of Independent Business v. Sebelius- IX
More from the Notorious RGB
States cannot solve this problem on their own
States and private insurers retain a robust role
Whatever one thinks of the policy decision of Congress, it was their ability to make it
The should be upheld under the Commerce Clause
The intent of the framers was to give commerce power to the federal government
Congress should be given sufficient leeway
Congress had a rational basis for enacting the mandate
The insurance is usually provided by national or regional companies
Doing nothing does foist costs on other consumers

20. National Federation of Independent Business v. Sebelius- X
A little more from Ginsburg
The Mandate
Bears a reasonable connection to Congress goal of protecting the health care market from those who cause disruption from failing to obtain insurance
This mitigates the impact the uninsured have on the market
If the purchase requirement only applies to those that actively consume health care, the mandate fits the bill
Necessary and Proper Clause issue
To end discrimination and preexisting conditions, this mandate was necessary, otherwise premiums for all would spike
She says the Chief and the other dissenters opinions bear striking resemblance to long overruled cases like Carter Coal, Dagenhart, and Lochner

21. National Federation of Independent Business v. Sebelius- XI
Joint dissent of Kennedy, Scalia, Thomas and Alito
This is an unsigned dissent somewhat unusual
They echo much of Roberts dissent
They say the analogous situation of Wickard v. Filburn would have been if Congress had directed that he must grow wheat
Abstention from commerce is not commerce
This could mean the commerce clause was unlimited of power
Everyone consumes food, so could there by a mandate on that too?
This exceeds federal power

22. Next lecture
We will start to finish up the material on the Commerce Clause
But now looking at the commerce power of the states themselves
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