To determine whether the CSA exceeds the power of Congress, the Court must determine whether the activities described in the Compassionate Use Act have an effect on interstate commerce sufficient to subject them to regulation under the Commerce Clause. This analysis is governed by two recent decisions: United States v. Lopez, 514 U.S. 549, 557 (1995), which described the categories of activity that may be regulated under the Commerce Clause, and United States v. Morrison, 529 U.S. 598, 637 (2000), which established a four-factor test governing when a regulated activity substantially affects interstate commerce.
I. Statutes Regulating Commerce or Any Sort of Economic Enterprise
The first of the Lopez-Morrison factors asks whether the statute regulates commerce or any sort of economic enterprise. The Ninth Circuit found that “the limited class of activities” presented by this case — the “cultivation, possession, and use of marijuana for medicinal purposes” — could not be characterized as commercial or economic activity. See Raich v. Ashcroft, 352 F.3d 1222, 1229 (9th Cir. 2003).However, at least one activity could definitely be called commerce: the sale of marijuana to caregivers. Furthermore, the Ninth Circuit erroneously analogized the use of medicinal marijuana to the use of “homegrown” child pornography discussed in United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003). Thus while the activity in question is not directly commercial or economic, this factor still supports the ability of Congress to regulate the activity.
In McCoy, the court found that a picture taken and maintained for personal use had no connection to the national, multi-million dollar commercial pornography industry. See id. at 1131. Congress could therefore not regulate the possession of child pornography that had not been mailed, shipped, or transported interstate, or that was not intended for interstate distribution or economic use. See id. at 1115. Unlike the child pornography at issue in McCoy, however, it is uncertain whether all caregivers have obtained their marijuana from within state borders. Moreover, in McCoy, the court avoided the aggregation principle by finding that a “homegrown” piece of child pornography intended for personal use was a nonfungible product. See id. at 1131. The aggregation principle states that a product intended for intrastate use nonetheless affects interstate commerce where the aggregation of “many others similarly situated” might have an inadvertent, interstate effect. See Wickard v. Filburn, 317 U.S. 111 (1942) (finding that wheat produced on a single farm, for consumption on the farm on which it was produced, can have an effect on interstate commerce when aggregated with other similarly situated producers). Here, the Ninth Circuit argued that the aggregation principle was not applicable because, like the child pornography in McCoy, the intended use of the product was intrastate and by an individual. See Raich v. Ashcroft, 352 F.3d 1222, 1231 (9th Cir. 2003). This connection is tenuous at best — the production of marijuana much more closely resembles the production of fungible products like wheat, than it resembles the production of child pornography. The Court has a long history of finding that activity, when aggregated with the activities of other’s similarly situated, affects interstate commerce. See Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264 (1981) (coal mining); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964) (motel operation); Perez v. United States, 402 U.S. 146, 150 (1971) (loan sharking).
II. Statutes Containing a Jurisdictional Hook
The second Lopez-Morrison factor protects statutes that contain an “express jurisdictional element that might limit its reach to a discrete set of cases that substantially affect interstate commerce” — I.E., a “jurisdictional hook.” See generally United States v. Lopez, 514 U.S. 549, 562 (1995). No section of the CSA supplies the jurisdictional element contemplated by Lopez. See id. Like the statute in Lopez, there is no requirement that the product in question ever entered into interstate commerce. With that said, it should be noted that the CSA is not like the statute in Morrison, where Congress “elected to cast [the statute’s] remedy over a wider, and more purely intrastate, body of violent crime.” See United States v. Morrison, 529 U.S. 598, 613 (2000).Here, the intent is not to regulate purely intrastate activities; instead, the statute simply fails to provide the jurisdictional hook that would prevent it from applying to both intrastate and interstate activities.
III. Statutes Containing Express Congressional Findings
The third Lopez-Morrison factor asks whether the statute or its legislative history contains express congressional findings regarding the effects of the regulated activity upon interstate commerce. Several subsections of �801 of the CSA state specific congressional findings on the effect of controlled substances on interstate commerce:
(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because —
(A) after manufacture, many controlled substances are transported in interstate commerce,
(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.
(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.
(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.
21 U.S.C. 801.
However, as the Ninth Circuit notes, none of these findings contemplate the specific activity in question — the use of medicinal marijuana. Raich v. Ashcroft, 352 F.3d 1222, 1232 (9th Cir. 2003).Moreover, according to Morrison, “the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.” See United States v. Morrison, 529 U.S. 598, 614 (2000). Thus, while this factor supports upholding the CSA, it does not provide strong support.
IV. Where the Link is Attenuated
The final Lopez-Morrison factor “examines whether the link between the regulated activity and a substantial effect on interstate commerce is ‘attenuated.’” See Raich v. Ashcroft, 352 F.3d 1222, 1225 (9th Cir. 2003). While the link may not be attenuated, neither is it particularly strong.
On the one hand, in 1998, Americans spent approximately $11 billion on marijuana. Executive Office of the President, Office of National Drug Control Policy, What America’s Users Spend on Illegal Drugs, 1988-1998, at 1 (2000). Furthermore, marijuana is the most widely used illegal drug in the United States; of the nearly 20 million current drug users in this country, approximately 14.6 million (75 percent) are using marijuana. Substance Abuse & Mental Health Servs. Admin., 2002 National Survey on Drug Use and Health (2003). Finally, marijuana is a fungible, transferable, and therefore fundamentally economic product — even if a particular amount of marijuana has not actually been exchanged for cash. Raich v. Ashcroft, 352 F.3d 1222, 1242 (9th Cir. 2003) (“While it is clear that plaintiffs did not propose to sell or share their marijuana with others similarly situated (or even not similarly situated), they could.”) Thus marijuana is an inherently economic product, used by millions of Americans, constituting a multi-billion dollar industry — it would be impossible to say that any industry of this size is not inherently interstate in nature.
On the other hand, it is unclear how the activities of the particular plaintiffs, or similarly situated plaintiffs, have an effect on interstate commerce. Assuming that the number of users of medical marijuana is relatively low compared to the total number of marijuana users, and that their marijuana is cultivated locally, the activities made legal by the Compassionate Use Act should have a minimal effect on interstate commerce. Several California courts have already supported this idea. See, e.g., Conant v. Walters, 309 F.3d 629, 647 (9th Cir. 2002) (Kozinski, J., concurring) (“Medical 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.”); County of Santa Cruz v. Ashcroft, 279 F.Supp.2d 1192, 1209 (N.D. Cal. 2003).