Ashcroft v. Raich

Is a farmer who raises a crop for personal use subject to federal regulation? This question was first raised in Wickard v. Filburn
in 1941 and is the question before the court in Ashcroft v. Raich (the medical marijuana case).  Leaving aside the emotional appeal of Raich's and Monson's plight, this is a case progressives should be wary of. This case could have as much an impact as a case overturning Roe v. Wade.  Watch this case closely.

Wickard is the seminal commerce clause case of the 20th century. It stands for the proposition that Congress may regulate local activity that was an essential part of a larger regulation of economic activity where the regulatory scheme could be undercut by the local activity unless the intrastate activity was regulated. Putting it another way, if the activity affects the stream of commerce in the aggregate, congress may, under the interstate commerce clause of the constitution regulate the local activity.   Lawyers are taught in studying this case that Roscoe Filburn was an Ohio farmer who raised wheat for personal consumption and the court found that he was subject to congressional regulation (the Agricultural Adjustment Act of 1936). Wickard is the foundation that Congress used to  resolve such matters as public accommodation issues in the civil rights acts of the 1960's, which resulted in landmark cases requiring hotels and restaurants to serve all regardless of race ( Heart of Atlanta Motel and McClung ).  

If you accept the premise that government economic regulation is not per se a bad thing (i.e. you are not Grover Norquist or Stephen Moore) and that national government economic regulation may be beneficial or even necessary, then Wickard as commonly understood is a precedent that progressives should embrace. The Rehnquist, Thomas, Scalia faction  (and the large corporate interests they represent) despise government economic regulation and needless to say, Wickard.

Their aim is to undermine Wickard and their efforts have come to fruition with Virginia v. Lopez
 (regulation of carrying guns near schools) and US v. Morrison (Violence Against Women Act).  Justice Souter dissented vigorously in the latter case and argued that the majority had implicitly overruled Wickard, a claim the majority denied.

This brings us to Raich. Ashcroft has been placed in the position of arguing that Wickard is good law and gives the federal government the power to ban by regulation all marijuana use. Raich and Monsoon, are arguing that Morrison is controlling and there is no interstate commerce connection in their production and personal consumption of marijuana.  Raich's attorneys have not called for overruling Wickard and have gone to some lengths to distinguish their case from Wickard, pointing out, that the common understanding of Wickard, not withstanding, Roscoe Filburn was not a raising wheat for his personal consumption (to consume the excess 239 bushels of wheat Filburn had grown, the Filburns would have to eat 44 one pound loves of bread everyday for the following year).  If the court rules in favor of Ashcroft, they will breathe life into a doctrine of law that is near dead, if not dead. Ruling in favor of Raich, will not endear them to most conservatives. The liberal faction (if they can be called that) have the opposite problem.  

•  Don't think Raich's gonna win.

  Based on the second-hand highlights I read tonight, I don't think it's a winner.  I think that they're going to point to the FDA building and say, "you in the wrong building.  You need to go there."

  I find it interesting that some Supremes would tow the line on judges acting as a thirteenth juror by basing sentencing on facts not found by juries in deliberation, despite the "havoc" O'Connor warned it would cause....while harrumphing about the difficulties of implementing the medicinal use of mary jane.  I know, one repeals abuse, the other invites it.

  My last slice of pumpkin pie says this gets booted to the FDA.

  by seriously blown cue on Mon Nov 29, 2004 at 09:37:55 PM PDT

•  I do accept

  that some economic regulation is not a bad thing, and yet I still disagree with Wickard v Filburn. Filburn (and his family) ate some of their wheat, sold some of their wheat, and fed some to their livestock & poultry (some of which livestock were later sold). Considering a cow eats something like 100lbs of food a day, I find it totally believable that all 239 bushels of excess wheat could have gone to his livestock.

  Where he got caught up is that feeding wheat (that you grew yourself) to livestock you intended to sell fell under the Agricultural Adjustment Act.

  And that's where it gets a little weird to me. For one thing, this amounts to pre-crime - he's being penalized for simply possessing enough wheat that the government has decided he intends to sell it. For another, the effect on interstate commerce is getting so arcane at this point that it seems like anything could be construed as affecting interstate commerce.

  So you grow some wheat, and you feed it to your chickens. Can't sell the chickens now - because that affects the interstate commerce of wheat.

  Can't pluck their feathers and stuff pillows that you sell, either - that's a chicken "product", and products of animals fed with wheat grown in excess of the quota are subject to the penalty as well.

  Can you use the chickens as fertilizer to grow vegetables that you then sell? Maybe you can, under the Agricultural Adjustment Act - but under Wickard, there doesn't seem to be any reason why Congress couldn't pass a law saying you couldn't, and call it interstate wheat regulation.

  To my mind, feeding wheat to your chickens & cows is personal consumption, and I don't see how it is that the Commerce Clause allows the government to tax you for saving money by making/growing something yourself instead of buying it.

  by cyclopatra on Mon Nov 29, 2004 at 09:41:33 PM PDT

  •  Filburn's practice

    was "to sell a portion of the wheat crop, feed part to poultry and livestock...and to keep the rest for seeding".

    Appears to me he was, in fact selling some of the wheat and not just selling wheat fed livestock.
    

    by molly bloom on Tue Nov 30, 2004 at 05:27:01 AM PDT

    •  yes, but

      there's no evidence that he was selling any of the 239 bushels of wheat that was in excess of his quota. In fact the decision explicitly says that no claims were made that he was selling it.

      He was legally allowed to grow (and sell) 11 and some-odd acres of wheat. The case revolved around the fact that he grew more than that, not that he sold more than that. Whether he sold it or not he was liable for the penalty under the Agricultural Adjustment Act, unless he destroyed it, stored it, or gave it to the government.

      by cyclopatra on Tue Nov 30, 2004 at 03:00:11 PM PDT

      •  Beside the point

        I think that is beside the point of my thesis and the case. In reverse order:
        

        1. the court found that "One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress  may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices."   I personally think that is a proper exercise of the regulatory power under the circumstances.

        2. My larger point is the current court seeks to severely curtail the congressional regulatory power. I am not certain that is a good thing. And it will have far ranging consequences. It will adveresly effect the power of the federal government  to deal with issues of pollution, health care, civil rights enforcement to name but a few.  National problems require national solutions. Te commerce clause has been an effective vehicle to remedy them in the past. The fact that the special interests of the Corrupt Old Party have halted congress from dealing with national problems in a meaningful way for now, doesn't change that. There will be a future congress that will want and have to deal with national problems.

        But for the issue of marijuana, this case is as good as it gets if you are looking for a fact pattern to revisit Wickard to overrule it. Justice Souter, argured that Morrison implicitly over turned Wickard. I personally think that medical marijuana should be allowed, but is it worth the price?

        by molly bloom on Tue Nov 30, 2004 at 07:03:59 PM PDT

        •  well

          I would disagree that Congress does or should have the power to regulate what I make for myself on the grounds that I would buy it if I didn't make it. Not only does that seem fundamentally anti-liberty to me on the face of it, I think that it really is the slipperiest of slippery slopes. What if I simply decide not to buy something, and to save my money instead? What if I want to buy generic instead of brand-name?

          Once you grant that Congress has the power to force us to buy things simply to serve their regulatory ends, what's the limit? I don't see how even the loosest interpretation of the commerce clause can realistically be construed to limit private activity. And I don't think that sticking to a 'weaker' Wickard, ie, that the federal government has the power to limit intrastate economic transactions on the grounds that it affects interstate commerce, would lessen Congressional regulatory power dramatically.  

          As far as Raich goes, I think it's more Lopez than Wickard, anyway - we're talking about an entirely noneconomic, noncommercial activity, since neither the marijuana nor any 'products of' the marijuana are being bought or sold. A decision for Raich wouldn't really undermine Wickard v Filburn more than it already has been, as long as the court made it clear that the reason for the decision was because no commerce in marijuana was taking place.

          The US Solicitor General would like the case to be about Wickard, because then he would be able to sway some of the Justices on the basis of stare decisis. But even Wickard had some basis in commerce (that his livestock & poultry, or their products, would later be sold), no matter how arcane and unjustifiable I find it.  Ashcroft v Raich doesn't even have that tenuous connection.

          by cyclopatra on Tue Nov 30, 2004 at 10:38:07 PM PDT

          •  Not forced to buy anything

            That is a stretch. Filburn, of course, doesn't have to feed his livestock wheat. He can grass feed the livestock or feed them on other grains, like corn. I don't think you have liberty interest in growing wheat.

            Lopez, is part of the rolling back of Wickard. Congress heeded what the Rhenquist majority said in Lopez and made sure to include findings that violence against women had an economic impact and got whacked in Morrison anyway. So its likely  that the decision will go beyond emotionally satisfying impact of allowing the Raich and Monson to have medical marijuana (a result I do not oppose). How will congress be able to regulate interstate comerece if you can simply opt out by claiming no economic impact?

            Argueably Raich would be different than Wickard because its a medical necessity and not otherwise legally available.

            by molly bloom on Wed Dec 01, 2004 at 04:45:22 AM PDT