Over the course of the past year, two issues have emerged that highlight policy dilemmas generated by the federal structure of the US. One dilemma will be addressed by the Supreme Court when it hears oral argument in the case of Windsor v. US. This case deals with the tension between a federal law that refuses to recognize gay marriages, and state laws that recognize those marriages as legal.
The second dilemma involves the contradiction between federal and state drug policies. Several states—California and Colorado among them—have legalized the use of marijuana. California allows marijuana to be used for medical purposes since the drug seems to relieve some of the symptoms of certain diseases or various painful side effects of therapy. The dilemma is that although states may allow the use of marijuana, federal drug policy still makes production, sale, possession and use of the drug a criminal offense.
In 2005, the Supreme Court handed down a decision in the case of Gonzalez v. Raich. Despite the fact that California law allows the medical use of marijuana, the federal Controlled Substances Act (CSA) makes the production and use of marijuana illegal. Angel Raich and Diana Monson were two Californians who were using marijuana under physician’s supervision to counteract the effects of a brain tumor and severe back pain, respectively. Federal agents seized and destroyed six marijuana plants that Monson was growing for her own use. Both Raich and Monson sued, claiming that the enforcement of the CSA prevented them from having access to a legal medical treatment. The federal government argued that the CSA was a valid exercise of the federal power to regulate interstate commerce.
In their argument challenging the law, it seemed that Raich and Monson had the upper hand. Not only was their marijuana produced locally, it was also provided free to those who needed it. Thus it was argued that the production, distribution and use of the plant were not part of the stream of interstate commerce. The medical use of marijuana also seemed to be a subject that fell squarely within the bounds of state police powers. In response, the federal government argued that the commerce power extends to economic activity that substantially impacts interstate commerce, using Wickard v. Filburn as precedent.
Although the lower courts agreed with Raich and Monson, the Supreme Court reversed. Despite the fact that two cases—Lopez (1995) and Morrison (2005)—had indicated that the Court was sympathetic to restrictions on the breadth of the commerce clause, the Court voted 6-3 that the situation here was much like that in Wickard. In that case, the Court determined that the Commerce Power could be used to regulate agricultural production that was purely for personal use, on the ground that this production in the aggregate could affect the interstate demand for a product. As was the case in Wickard, the Court in Raich determined that the national market for marijuana, even if an illegal market, could be regulated under the Commerce Power. Chief Justice Rehnquist and Justices O’Connor and Thomas were the only justices to agree with Monson and Raich that their use and production of marijuana was not an economic transaction, much less one that impacted interstate commerce.
Raich is prelude to an interesting prosecution taking place now. The New York Times reports that a California businessman, Matthew Davies, has been indicted for growing and producing marijuana for medical use. Davies has established a medical marijuana supply business that is perfectly legal in California, complying with all employment and commercial requirements. Records documenting the medical need for the drug are meticulously kept and the business only supplies marijuana for health reasons, with detailed records to back that claim. Despite President Obama’s comments that the Justice Department has more important things to do than prosecute individuals for the use of medical marijuana, the US attorney for the area argues that Davies is a major “commercial marijuana trafficker.” He has offered a plea deal that could put Davies behind bars for a mandatory minimum sentence of five years. Davies, who appears to be a respectable citizen with no criminal record and is the father of a young family, is fighting the indictment.
Given the outcome of Raich, it would seem that Davies’ business would definitely be subject to federal regulations under the Commerce Power. Although Justice Thomas’s dissent in Raich argued that simple use of locally produced and donated marijuana was not economic activity; in this case, Davies’ business is clearly production for profit. But the case squarely presents a tension between state and federal policy, highlighting the problem of federalism, and this question is addressed in Justice O’Connor’s dissenting opinion. As she noted, an important function of federalism is to provide “spheres of state sovereignty” that “promot[e] 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.’” If this is so, then what is to be done when the federal government tries to enforce a national social and health policy that contradicts a popular state policy? It will be interesting to see whether more cases like this one emerge, whether the Court will eventually address the question, and how it will resolve this dilemma.
 Excerpted in Epstein and Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 7th ed., pp. 456-464.
 Epstein and Walker, p. 462.