Gonzales v. Raich and the Marijuana Case That Split Conservative Justices

Imagine a federal agent standing in a California backyard, studying a few cannabis plants grown by a woman for her own use, and explaining that this activity is "interstate commerce." Take a moment with that. The plants never left the yard. They were never sold. And yet, in the eyes of the United States Supreme Court, they were fair game for the Commerce Clause.

This is the story of Gonzales v. Raich, decided in 2005, and it matters even if you have never smoked anything stronger than a campfire. It is a case about how far the federal government can reach into a person's life, and it is one of the rare cases where the conservative justices lined up on both sides of the line. If you care about federalism, and you should, this is the case that tests whether you mean it.

The background: California's Compassionate Use Act

In November 1996, California voters passed Proposition 215, the Compassionate Use Act. It allowed patients with a doctor's recommendation to possess and cultivate marijuana for medical use without being prosecuted under state law. California was the first state to take this step, and others followed in the years afterward.

There was one problem, and it was a big one. Federal law had not moved. Since 1970 the Controlled Substances Act had classified marijuana as a drug with no accepted medical use and a high potential for abuse, and it made possessing, growing or distributing it a federal crime. State law said one thing and federal law said another, and it fell to the courts to say which one would prevail when the two collided. The answer lies in the Supremacy Clause of Article VI, which makes federal law supreme within its proper sphere. Which brings us to the real question: was the federal law inside its sphere?

The facts of the case

The two women at the center of the case were Angel Raich and Diane Monson, California residents who used marijuana under their doctors' recommendations to treat serious medical conditions. Raich relied on cannabis that was grown for her by caregivers, free of charge. Monson grew her own plants at home. Neither sold anything.

In 2002, federal agents arrived at Monson's home in Oroville, California, and destroyed her plants, though county officials had concluded her use was lawful under state law. The women then sued, arguing that the Controlled Substances Act, as applied to the noncommercial, intrastate, medical use of homegrown cannabis, exceeded Congress's power under the Commerce Clause. The Ninth Circuit agreed with them. The government appealed, and the Supreme Court heard argument in 2004.

Notice what the case was and what it was not. Nobody asked the Court whether marijuana is good or bad, whether medical use is wise, or whether California's law was a good idea. The only question was constitutional: does Congress have the power to regulate this?

The question: what does "commerce" cover?

To understand it, you need the text and a little history.

Article I, Section 8, Clause 3 gives Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." For much of the early republic, that was understood as a modest power, to regulate the actual trade across state lines. In the New Deal era, the Court enlarged it considerably. In Wickard v. Filburn (1942), a farmer named Roscoe Filburn grew more wheat than his federal allotment allowed, intending to use the extra on his own farm, to feed animals and for his household. The Court held that Congress could regulate him anyway. Even though his wheat was never sold and never left the farm, the Court reasoned, his home-grown wheat, taken together with the wheat grown by many other farmers like him, could affect the national market, because every bushel he grew for himself was a bushel he did not buy.

Wickard is the high-water mark of the commerce power, and it is the great grandfather of the federal reach we live under today. Conservatives have criticized it for decades, and for good reason. It permits Congress to regulate almost any activity if you can describe a chain of effects long enough.

In the 1990s, the Rehnquist Court tried to draw a line. In United States v. Lopez (1995), it struck down a federal law banning guns near schools, and in United States v. Morrison (2000), it struck down part of the Violence Against Women Act. Both cases said that the commerce power has limits, and that Congress cannot regulate noneconomic activity merely because it might, in the aggregate, have some effect on commerce. For federalists, those were a breath of fresh air. Raich was the test of whether the breath would last.

Justice Stevens and the majority

In June 2005, the Court ruled against Raich and Monson, six to three. Justice John Paul Stevens wrote the opinion.

His reasoning was built on Wickard. Congress, he said, had a rational basis to conclude that leaving homegrown marijuana outside the reach of the Controlled Substances Act would affect the interstate market for the drug. The Act was a comprehensive scheme to control a national market in controlled substances. Marijuana grown at home could be diverted to the illegal market. It was fungible. It was, in Stevens's analysis, hard to tell apart from marijuana grown elsewhere. A gap in the regulation for homegrown, medical marijuana could undermine the whole scheme. And since Congress had a rational basis for thinking so, the Court would not second-guess it.

Stevens distinguished Lopez and Morrison on the ground that those cases involved laws that did not regulate economic activity and were not part of a broader regulatory scheme. Here, he said, the regulation of the cultivation, possession and sale of marijuana was an economic regulatory scheme of the type the Court had long allowed. The local growing was a small part of a large, valid whole.

Notice the structure of the argument. It says: if Congress has the power to regulate a national market, it has the power to regulate even the local activities that fall within the market's gaps. That is the logic of Wickard in a new coat.

Justice Scalia's concurrence

Here is where the conservative bloc began to split, and the split was not over the policy.

Justice Antonin Scalia, usually the Court's most vigorous textualist, concurred in the judgment, meaning he voted with the majority but wrote his own opinion on different reasoning. Scalia did not rely only on the commerce power to regulate "economic activities." He said that Congress's authority over this case rested on the Necessary and Proper Clause in Article I, Section 8, Clause 18, which gives Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Congress may regulate even noneconomic, local activities if the regulation is a necessary part of a broader regulation of interstate commerce, which is how Scalia read the Controlled Substances Act. A comprehensive regime to stamp out an interstate drug market can reach local conduct if the regime would otherwise be undercut.

You can see the logic, and you can see why it troubled people. Scalia was a man who took federalism seriously and was also a man who took the text seriously, and he found the text of the Necessary and Proper Clause broad enough to reach the case. Critics saw an uncomfortable tension: the same justice who joined Lopez and Morrison had approved a power that could reach a woman's backyard. His defenders replied that the difference was the comprehensive scheme, and that the Constitution gives Congress the means to carry out its enumerated ends.

The dissents: O'Connor and Thomas

Three justices dissented, and their opinions are well worth reading.

Justice Sandra Day O'Connor, joined by Chief Justice Rehnquist and, in part, Justice Thomas, wrote that the majority's reasoning threatened to erase the line the Court had drawn in Lopez and Morrison. If the Commerce Clause let Congress reach homegrown, noncommercial, medical marijuana because it belonged to a broad regulatory scheme, then it was hard to see what activity Congress could not reach, so long as it first wrapped it in a federal statute. She also emphasized the federalism value at stake: California had decided, as was its right, to try a new approach, and the Court's duty was to protect the space in which states can experiment. Her opinion echoes the famous idea, from Justice Brandeis, that a state may serve as a laboratory for novel social and economic experiments. That line, in her dissent, was an argument for the system as the Founders built it.

Justice Clarence Thomas wrote his own dissent, and it is the most direct. He argued that growing marijuana for one's own consumption, never sold and never taken across a state line, is not "Commerce... among the several States" in any ordinary sense of the text. He went back to the original meaning of the clause and warned that, if the logic of the majority held, Congress would have a federal police power, an authority to regulate whatever it likes, which the Founders never gave it. The Tenth Amendment says powers not delegated to the United States are reserved to the states or the people, and Thomas thought the majority had read the delegation so broadly that the reservation meant little.

So the conservative camp, if there is such a thing as a single camp, produced three views: Stevens's broad reading, though Stevens was not conservative; Scalia's necessary-and-proper route; and the O'Connor-Thomas insistence on limits. That is the split in the title.

What happened afterward

The Court's decision did not end the argument, and it did not end the story for the plaintiffs. On remand the Ninth Circuit considered Raich's remaining claims and in 2007 again ruled against her. But political events moved on. Many states passed medical marijuana laws, and later recreational ones, creating a patchwork that exists to this day. Congress responded in 2014 by approving a budget limitation, renewed in later years, barring the Department of Justice from spending funds to interfere with state medical-marijuana programs, which is a kind of political federalism that came about even though the constitutional federalism lost in Raich. That arrangement shows how fragile the result is, since it depends on spending riders rather than on a court ruling.

The case also lives on as a reference point in other fights. Whenever the question is how far the Commerce Clause reaches, Raich sits on one side of the shelf and Lopez and Morrison on the other. In NFIB v. Sebelius (2012), the Court's decision on the health care mandate, five justices held that the commerce power does not let Congress compel people to buy a product, drawing a line between regulating activity and creating it. That is a federalism limit with a consequence, and conservatives have cited it as proof that the limits are real. Raich stands as the caution that the limits are narrow.

What it means for conservatives on both sides of drug policy

Here is the interesting thing: Raich does not map neatly onto the drug debate.

If you are a conservative who thinks marijuana is a danger, you might be inclined to cheer the result. The federal government can crack down on a substance you believe corrodes the family and society. But consider what you are endorsing: a theory that lets Washington reach any activity it can tie to a regulatory scheme. The next Congress may use the same reasoning to regulate things you cherish. A principle that gives you today's win gives somebody else tomorrow's.

If you are a conservative who thinks drug policy should be left to the states, you should dislike the result, and you should also dislike the idea that the Constitution lets Congress override every local choice. The way to get the policy you want, on this view, is not to win in Washington but to persuade your neighbors in your own state. That is the federalist position, and it is one that Justice Thomas held consistently.

Both camps, though, can agree on one thing, and it is the thing worth taking from the case. A limit on federal power is only as good as the principle behind it. A federalism that applies when you like the outcome, and disappears when you do not, is not federalism. It is a preference. For the broader question of where conservatives land on drug policy, see Should Conservatives Support Drug Legalization? Both Sides Make Their Case, and for what the states did with their freedom, Oregon Decriminalized Hard Drugs in 2020 and Reversed Course in 2024.

Objections

"Congress needs the power to regulate a national drug market." Agreed. Nobody serious doubts it can regulate what crosses state lines. The question is whether the power extends to a plant that never left a backyard. The dissenters said the line should be drawn at what is truly commerce, and that Congress can handle the interstate market with the powers it has.

"The Necessary and Proper Clause is in the Constitution too." It is, and Scalia's concurrence took it seriously. The reply is that "necessary and proper" has to serve an enumerated power, and it cannot be a way to turn a limited government into a general one. The test is whether the means are truly appropriate to a valid end, and a backyard garden is a hard thing to call necessary to regulating a national market.

"This was about medical use, and the plaintiffs were sympathetic." True, and it is worth noting that the Court did not decide the case on sympathy. A constitutional principle ought to hold when the plaintiff is a sympathetic woman with a serious illness, and when she is not. That is why it is a principle.

For a closer look at the broader debate over how far courts should defer to the political branches, see The Death Penalty in the Supreme Court, a Timeline From Furman to Bucklew for a different Court story. You can read the Constitution's text for yourself on the Constitution page, and learn about the courts through the courts page.

The case in brief

1. California's Compassionate Use Act of 1996 allowed medical marijuana under state law, but the federal Controlled Substances Act of 1970 still prohibited it.
2. In Gonzales v. Raich (2005), the Court held six to three that Congress could regulate homegrown, noncommercial medical marijuana, relying on Wickard v. Filburn (1942).
3. Justice Stevens wrote for the majority on a rational-basis theory; Justice Scalia concurred on Necessary and Proper Clause grounds.
4. Justice O'Connor, joined by Chief Justice Rehnquist and in part Justice Thomas, dissented to protect the limits drawn in Lopez and Morrison, and Justice Thomas wrote separately that the activity was not commerce among the states at all.
5. Federalism-minded conservatives should treat the case as a test of whether they apply their principle when they like the outcome, and not only when they do not.

What you can do: read Article I, Section 8, Clause 3 and the Tenth Amendment, then ask your state legislators what policy your state would choose if Washington stayed out.