OPINION OF THE COURT GONZALES V. RAICH 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1454 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al.,
PETITIONERS v. ANGEL McCLARY RAICH et al.

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[June 6, 2005]

															   Justice Stevens delivered the
opinion of the Court.

															   California is one of at least
nine States that authorize the use of marijuana for medicinal
purposes.[ Footnote 1 ] The
question presented in this case is whether the power vested in
Congress by Article I, §8, of the Constitution “[t]o make all Laws
which shall be necessary and proper for carrying into Execution”
its authority to “regulate Commerce with foreign Nations, and among
the several States” includes the power to prohibit the local
cultivation and use of marijuana in compliance with California
law.

															I

															   California has been a pioneer in
the regulation of marijuana. In 1913, California was one of the
first States to prohibit the sale and possession of
marijuana,[ Footnote 2 ] and at
the end of the century, California became the first State to
authorize limited use of the drug for medicinal purposes. In 1996,
California voters passed Proposition 215, now codified as the
Compassionate Use Act of 1996.[ Footnote 3 ] The proposition was designed to ensure that
“seriously ill” residents of the State have access to marijuana for
medical purposes, and to encourage Federal and State Governments to
take steps towards ensuring the safe and affordable distribution of
the drug to patients in need.[ Footnote 4 ] The Act creates an exemption from criminal
prosecution for physicians,[ Footnote 5 ] as well as for patients and primary caregivers
who possess or cultivate marijuana for medicinal purposes with the
recommendation or approval of a physician.[ Footnote 6 ] A “primary caregiver” is a person who has
consistently assumed responsibility for the housing, health, or
safety of the patient.[ Footnote
7 ]

															   Respondents Angel Raich and Diane
Monson are California residents who suffer from a variety of
serious medical conditions and have sought to avail themselves of
medical marijuana pursuant to the terms of the Compassionate Use
Act. They are being treated by licensed, board-certified family
practitioners, who have concluded, after prescribing a host of
conventional medicines to treat respondents’ conditions and to
alleviate their associated symptoms, that marijuana is the only
drug available that provides effective treatment. Both women have
been using marijuana as a medication for several years pursuant to
their doctors’ recommendation, and both rely heavily on cannabis to
function on a daily basis. Indeed, Raich’s physician believes that
forgoing cannabis treatments would certainly cause Raich
excruciating pain and could very well prove fatal.

															   Respondent Monson cultivates her own
marijuana, and ingests the drug in a variety of ways including
smoking and using a vaporizer. Respondent Raich, by contrast, is
unable to cultivate her own, and thus relies on two caregivers,
litigating as “John Does,” to provide her with locally grown
marijuana at no charge. These caregivers also process the cannabis
into hashish or keif, and Raich herself processes some of the
marijuana into oils, balms, and foods for consumption.

															   On August 15, 2002, county deputy sheriffs and
agents from the federal Drug Enforcement Administration (DEA) came
to Monson’s home. After a thorough investigation, the county
officials concluded that her use of marijuana was entirely lawful
as a matter of California law. Nevertheless, after a 3-hour
standoff, the federal agents seized and destroyed all six of her
cannabis plants.

															   Respondents thereafter brought this action
against the Attorney General of the United States and the head of
the DEA seeking injunctive and declaratory relief prohibiting the
enforcement of the federal Controlled Substances Act (CSA), 84
Stat. 1242, 21 U. S. C. §801 et seq ., to the extent
it prevents them from possessing, obtaining, or manufacturing
cannabis for their personal medical use. In their complaint and
supporting affidavits, Raich and Monson described the severity of
their afflictions, their repeatedly futile attempts to obtain
relief with conventional medications, and the opinions of their
doctors concerning their need to use marijuana. Respondents claimed
that enforcing the CSA against them would violate the Commerce
Clause, the Due Process Clause of the Fifth Amendment, the Ninth
and Tenth Amendments of the Constitution, and the doctrine of
medical necessity.

															   The District Court denied respondents’ motion
for a preliminary injunction. Raich v. Ashcroft, 248 F. Supp. 2d 918 (ND Cal. 2003). Although the court found
that the federal enforcement interests “wane[d]” when compared to
the harm that California residents would suffer if denied access to
medically necessary marijuana, it concluded that respondents could
not demonstrate a likelihood of success on the merits of their
legal claims. Id. , at 931.

															   A divided panel of the Court of Appeals for
the Ninth Circuit reversed and ordered the District Court to enter
a preliminary injunction.[ Footnote
8 ] Raich v. Ashcroft , 352 F. 3d 1222
(2003). The court found that respondents had “demonstrated a strong
likelihood of success on their claim that, as applied to them, the
CSA is an unconstitutional exercise of Congress’ Commerce Clause
authority.” Id., at 1227. The Court of Appeals
distinguished prior Circuit cases upholding the CSA in the face of
Commerce Clause challenges by focusing on what it deemed to be the
“ separate and distinct class of activities ” at issue in
this case: “the intrastate, noncommercial cultivation and
possession of cannabis for personal medical purposes as recommended
by a patient’s physician pursuant to valid California state law.” Id. , at 1228. The court found the latter class of
activities “different in kind from drug trafficking” because
interposing a physician’s recommendation raises different health
and safety concerns, and because “this limited use is clearly
distinct from the broader illicit drug market—as well as any
broader commercial market for medicinal marijuana—insofar as the
medicinal marijuana at issue in this case is not intended for, nor
does it enter, the stream of commerce.” Ibid .

															   The majority placed heavy reliance on our
decisions in United States v. Lopez, 514
U. S. 549 (1995), and United States v. Morrison, 529
U. S. 598 (2000), as interpreted by recent Circuit precedent,
to hold that this separate class of purely local activities was
beyond the reach of federal power. In contrast, the dissenting
judge concluded that the CSA, as applied to respondents, was
clearly valid under Lopez and Morrison; moreover,
he thought it “simply impossible to distinguish the relevant
conduct surrounding the cultivation and use of the marijuana crop
at issue in this case from the cultivation and use of the wheat
crop that affected interstate commerce in Wickard v. Filburn .” 352 F. 3d, at 1235 (Beam, J., dissenting)
(citation omitted).

															   The obvious importance of the case prompted
our grant of certiorari. 542 U. S. 936 (2004).
The case is made difficult by respondents’ strong arguments that
they will suffer irreparable harm because, despite a congressional
finding to the contrary, marijuana does have valid therapeutic
purposes. The question before us, however, is not whether it is
wise to enforce the statute in these circumstances; rather, it is
whether Congress’ power to regulate interstate markets for
medicinal substances encompasses the portions of those markets that
are supplied with drugs produced and consumed locally. Well-settled
law controls our answer. The CSA is a valid exercise of federal
power, even as applied to the troubling facts of this case. We
accordingly vacate the judgment of the Court of Appeals.

															II

															   Shortly after taking office in
1969, President Nixon declared a national “war on drugs.”[ Footnote 9 ] As the first campaign of
that war, Congress set out to enact legislation that would
consolidate various drug laws on the books into a comprehensive
statute, provide meaningful regulation over legitimate sources of
drugs to prevent diversion into illegal channels, and strengthen
law enforcement tools against the traffic in illicit
drugs.[ Footnote 10 ] That
effort culminated in the passage of the Comprehensive Drug Abuse
Prevention and Control Act of 1970, 84 Stat. 1236.

															   This was not, however, Congress’
first attempt to regulate the national market in drugs. Rather, as
early as 1906 Congress enacted federal legislation imposing
labeling regulations on medications and prohibiting the manufacture
or shipment of any adulterated or misbranded drug traveling in
interstate commerce.[ Footnote
11 ] Aside from these labeling restrictions, most domestic drug
regulations prior to 1970 generally came in the guise of revenue
laws, with the Department of the Treasury serving as the Federal
Government’s primary enforcer.[ Footnote 12 ] For example, the primary drug control law,
before being repealed by the passage of the CSA, was the Harrison
Narcotics Act of 1914, 38 Stat. 785 (repealed 1970). The Harrison
Act sought to exert control over the possession and sale of
narcotics, specifically cocaine and opiates, by requiring
producers, distributors, and purchasers to register with the
Federal Government, by assessing taxes against parties so
registered, and by regulating the issuance of
prescriptions.[ Footnote
13 ]

															   Marijuana itself was not significantly
regulated by the Federal Government until 1937 when accounts of
marijuana’s addictive qualities and physiological effects, paired
with dissatisfaction with enforcement efforts at state and local
levels, prompted Congress to pass the Marihuana Tax Act, Pub. L.
75–238, 50 Stat. 551 (repealed 1970).[ Footnote 14 ] Like the Harrison Act, the Marihuana Tax Act
did not outlaw the possession or sale of marijuana outright.
Rather, it imposed registration and reporting requirements for all
individuals importing, producing, selling, or dealing in marijuana,
and required the payment of annual taxes in addition to transfer
taxes whenever the drug changed hands.[ Footnote 15 ] Moreover, doctors wishing to prescribe
marijuana for medical purposes were required to comply with rather
burdensome administrative requirements.[ Footnote 16 ] Noncompliance exposed traffickers to
severe federal penalties, whereas compliance would often subject
them to prosecution under state law.[ Footnote 17 ] Thus, while the Marihuana Tax Act did not
declare the drug illegal per se , the onerous
administrative requirements, the prohibitively expensive taxes, and
the risks attendant on compliance practically curtailed the
marijuana trade.

															   Then in 1970, after declaration of the
national “war on drugs,” federal drug policy underwent a
significant transformation. A number of noteworthy events
precipitated this policy shift. First, in Leary v. United States, 395 U. S. 6 (1969), this Court held
certain provisions of the Marihuana Tax Act and other narcotics
legislation unconstitutional. Second, at the end of his term,
President Johnson fundamentally reorganized the federal drug
control agencies. The Bureau of Narcotics, then housed in the
Department of Treasury, merged with the Bureau of Drug Abuse
Control, then housed in the Department of Health, Education, and
Welfare (HEW), to create the Bureau of Narcotics and Dangerous
Drugs, currently housed in the Department of Justice.[ Footnote 18 ] Finally, prompted by a
perceived need to consolidate the growing number of piecemeal drug
laws and to enhance federal drug enforcement powers, Congress
enacted the Comprehensive Drug Abuse Prevention and Control
Act.[ Footnote 19 ]

															   Title II of that Act, the CSA, repealed most
of the earlier antidrug laws in favor of a comprehensive regime to
combat the international and interstate traffic in illicit drugs.
The main objectives of the CSA were to conquer drug abuse and to
control the legitimate and illegitimate traffic in controlled
substances.[ Footnote 20 ]
Congress was particularly concerned with the need to prevent the
diversion of drugs from legitimate to illicit channels.[ Footnote 21 ]

															   To effectuate these goals, Congress devised a
closed regulatory system making it unlawful to manufacture,
distribute, dispense, or possess any controlled substance except in
a manner authorized by the CSA. 21 U. S. C. §§841(a)(1),
844(a). The CSA categorizes all controlled substances into five
schedules. §812. The drugs are grouped together based on their
accepted medical uses, the potential for abuse, and their
psychological and physical effects on the body. §§811, 812. Each
schedule is associated with a distinct set of controls regarding
the manufacture, distribution, and use of the substances listed
therein. §§821–830. The CSA and its implementing regulations set
forth strict requirements regarding registration, labeling and
packaging, production quotas, drug security, and recordkeeping. Ibid. 21 CFR §1301 et seq. (2004).

															   In enacting the CSA, Congress classified
marijuana as a Schedule I drug. 21 U. S. C. §812(c). This
preliminary classification was based, in part, on the
recommendation of the Assistant Secretary of HEW “that marihuana be
retained within schedule I at least until the completion of certain
studies now underway.”[ Footnote
22 ] Schedule I drugs are categorized as such because of their
high potential for abuse, lack of any accepted medical use, and
absence of any accepted safety for use in medically supervised
treatment. §812(b)(1). These three factors, in varying gradations,
are also used to categorize drugs in the other four schedules. For
example, Schedule II substances also have a high potential for
abuse which may lead to severe psychological or physical
dependence, but unlike Schedule I drugs, they have a currently
accepted medical use. §812(b)(2). By classifying marijuana as a
Schedule I drug, as opposed to listing it on a lesser schedule, the
manufacture, distribution, or possession of marijuana became a
criminal offense, with the sole exception being use of the drug as
part of a Food and Drug Administration pre-approved research study.
§§823(f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483 , 490
(2001).

															   The CSA provides for the periodic updating of
schedules and delegates authority to the Attorney General, after
consultation with the Secretary of Health and Human Services, to
add, remove, or transfer substances to, from, or between schedules.
§811. Despite considerable efforts to reschedule marijuana, it
remains a Schedule I drug.[ Footnote 23 ]

															III

															   Respondents in this case do not
dispute that passage of the CSA, as part of the Comprehensive Drug
Abuse Prevention and Control Act, was well within Congress’
commerce power. Brief for Respondents 22, 38. Nor do they contend
that any provision or section of the CSA amounts to an
unconstitutional exercise of congressional authority. Rather,
respondents’ challenge is actually quite limited; they argue that
the CSA’s categorical prohibition of the manufacture and possession
of marijuana as applied to the intrastate manufacture and
possession of marijuana for medical purposes pursuant to California
law exceeds Congress’ authority under the Commerce Clause.

															   In assessing the validity of
congressional regulation, none of our Commerce Clause cases can be
viewed in isolation. As charted in considerable detail in United States v. Lopez , our understanding of the
reach of the Commerce Clause, as well as Congress’ assertion of
authority thereunder, has evolved over time.[ Footnote 24 ] The Commerce Clause emerged as the
Framers’ response to the central problem giving rise to the
Constitution itself: the absence of any federal commerce power
under the Articles of Confederation.[ Footnote 25 ] For the first century of our history, the
primary use of the Clause was to preclude the kind of
discriminatory state legislation that had once been
permissible.[ Footnote 26 ]
Then, in response to rapid industrial development and an
increasingly interdependent national economy, Congress “ushered in
a new era of federal regulation under the commerce power,”
beginning with the enactment of the Interstate Commerce Act in
1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat.
209, as amended, 15 U. S. C. §2 et seq.[ Footnote 27 ] Cases decided during that “new era,” which now
spans more than a century, have identified three general categories
of regulation in which Congress is authorized to engage under its
commerce power. First, Congress can regulate the channels of
interstate commerce. Perez v. United States, 402 U. S. 146 ,
150 (1971). Second, Congress has authority to regulate and protect
the instrumentalities of interstate commerce, and persons or things
in interstate commerce. Ibid. Third, Congress has the
power to regulate activities that substantially affect interstate
commerce. Ibid . ; NLRB v. Jones &
Laughlin Steel Corp., 301 U. S. 1 , 37 (1937).
Only the third category is implicated in the case at hand.

															   Our case law firmly establishes Congress’
power to regulate purely local activities that are part of an
economic “class of activities” that have a substantial effect on
interstate commerce. See, e.g., Perez , 402 U. S., at 151; Wickard v. Filburn , 317
U. S. 111 , 128–129 (1942). As we stated in Wickard ,
“even if appellee’s activity be local and though it may not be
regarded as commerce, it may still, whatever its nature, be reached
by Congress if it exerts a substantial economic effect on
interstate commerce.” Id. , at 125. We have never required
Congress to legislate with scientific exactitude. When Congress
decides that the “ ‘total incidence’ ” of a practice
poses a threat to a national market, it may regulate the entire
class. See Perez , 402 U. S., at 154–155 (quoting Westfall v. United States , 274 U. S. 256 , 259
(1927) (“[W]hen it is necessary in order to prevent an evil to make
the law embrace more than the precise thing to be prevented it may
do so”)). In this vein, we have reiterated that when “ ‘a
general regulatory statute bears a substantial relation to
commerce, the de minimis character of individual instances
arising under that statute is of no consequence.’ ” E.g., Lopez , 514 U. S., at 558 (emphasis deleted)
(quoting Maryland v. Wirtz , 392 U. S. 183 , 196,
n. 27 (1968)).

															   Our decision in Wickard, 317
U. S. 111 , is of particular relevance. In Wickard , we
upheld the application of regulations promulgated under the
Agricultural Adjustment Act of 1938, 52 Stat. 31, which were
designed to control the volume of wheat moving in interstate and
foreign commerce in order to avoid surpluses and consequent
abnormally low prices. The regulations established an allotment of
11.1 acres for Filburn’s 1941 wheat crop, but he sowed 23 acres,
intending to use the excess by consuming it on his own farm.
Filburn argued that even though we had sustained Congress’ power to
regulate the production of goods for commerce, that power did not
authorize “federal regulation [of] production not intended in any
part for commerce but wholly for consumption on the farm.” Wickard, 317 U. S., at 118. Justice Jackson’s opinion for
a unanimous Court rejected this submission. He wrote:

															“The effect of the statute before us is to restrict
the amount which may be produced for market and the extent as well
to which one may forestall resort to the market by producing to
meet his own needs. That appellee’s own contribution to the demand
for wheat may be trivial by itself is not enough to remove him from
the scope of federal regulation where, as here, his contribution,
taken together with that of many others similarly situated, is far
from trivial.” Id. , at 127–128. Wickard thus establishes that Congress can
regulate purely intrastate activity that is not itself
“commercial,” in that it is not produced for sale, if it concludes
that failure to regulate that class of activity would undercut the
regulation of the interstate market in that commodity.

															   The similarities between this case and Wickard are striking. Like the farmer in Wickard ,
respondents are cultivating, for home consumption, a fungible
commodity for which there is an established, albeit illegal,
interstate market.[ Footnote
28 ] Just as the Agricultural Adjustment Act was designed “to
control the volume [of wheat] moving in interstate and foreign
commerce in order to avoid surpluses …” and consequently control
the market price, id. , at 115, a primary purpose of the
CSA is to control the supply and demand of controlled substances in
both lawful and unlawful drug markets. See nn. 20–21, supra . In Wickard , we had no difficulty
concluding that Congress had a rational basis for believing that,
when viewed in the aggregate, leaving home-consumed wheat outside
the regulatory scheme would have a substantial influence on price
and market conditions. Here too, Congress had a rational basis for
concluding that leaving home-consumed marijuana outside federal
control would similarly affect price and market conditions.

															   More concretely, one concern prompting
inclusion of wheat grown for home consumption in the 1938 Act was
that rising market prices could draw such wheat into the interstate
market, resulting in lower market prices. Wickard , 317 U.
S., at 128. The parallel concern making it appropriate to include
marijuana grown for home consumption in the CSA is the likelihood
that the high demand in the interstate market will draw such
marijuana into that market. While the diversion of homegrown wheat
tended to frustrate the federal interest in stabilizing prices by
regulating the volume of commercial transactions in the interstate
market, the diversion of homegrown marijuana tends to frustrate the
federal interest in eliminating commercial transactions in the
interstate market in their entirety. In both cases, the regulation
is squarely within Congress’ commerce power because production of
the commodity meant for home consumption, be it wheat or marijuana,
has a substantial effect on supply and demand in the national
market for that commodity.[ Footnote 29 ]

															   Nonetheless, respondents suggest that Wickard differs from this case in three respects: (1) the
Agricultural Adjustment Act, unlike the CSA, exempted small farming
operations; (2) Wickard involved a “quintessential
economic activity”—a commercial farm—whereas respondents do not
sell marijuana; and (3) the Wickard record made it clear
that the aggregate production of wheat for use on farms had a
significant impact on market prices. Those differences, though
factually accurate, do not diminish the precedential force of this
Court’s reasoning.

															   The fact that Wickard’s own impact on the
market was “trivial by itself ” was not a sufficient reason
for removing him from the scope of federal regulation. 317 U. S.,
at 127. That the Secretary of Agriculture elected to exempt even
smaller farms from regulation does not speak to his power to
regulate all those whose aggregated production was significant, nor
did that fact play any role in the Court’s analysis. Moreover, even
though Wickard was indeed a commercial farmer, the activity he was
engaged in—the cultivation of wheat for home consumption—was not
treated by the Court as part of his commercial farming
operation.[ Footnote 30 ] And
while it is true that the record in the Wickard case
itself established the causal connection between the production for
local use and the national market, we have before us findings by
Congress to the same effect.

															   Findings in the introductory sections of the
CSA explain why Congress deemed it appropriate to encompass local
activities within the scope of the CSA. See n. 20, supra . The submissions of the parties and the numerous amici all seem to agree that the national, and
international, market for marijuana has dimensions that are fully
comparable to those defining the class of activities regulated by
the Secretary pursuant to the 1938 statute.[ Footnote 31 ] Respondents nonetheless insist
that the CSA cannot be constitutionally applied to their activities
because Congress did not make a specific finding that the
intrastate cultivation and possession of marijuana for medical
purposes based on the recommendation of a physician would
substantially affect the larger interstate marijuana market. Be
that as it may, we have never required Congress to make
particularized findings in order to legislate, see Lopez ,
514 U. S., at 562; Perez , 402 U. S., at 156, absent a
special concern such as the protection of free speech, see, e.g., Turner Broadcasting System, Inc. v. FCC , 512 U.
S. 622 , 664–668 (1994) (plurality opinion). While congressional
findings are certainly helpful in reviewing the substance of a
congressional statutory scheme, particularly when the connection to
commerce is not self-evident, and while we will consider
congressional findings in our analysis when they are available, the
absence of particularized findings does not call into question
Congress’ authority to legislate.[ Footnote 32 ]

															   In assessing the scope of Congress’ authority
under the Commerce Clause, we stress that the task before us is a
modest one. We need not determine whether respondents’ activities,
taken in the aggregate, substantially affect interstate commerce in
fact, but only whether a “rational basis” exists for so concluding. Lopez , 514 U. S., at 557; see also Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 ,
276–280 (1981); Perez , 402 U. S., at 155–156; Katzenbach v. McClung , 379 U. S. 294 , 299–301
(1964); Heart of Atlanta Motel, Inc. v. United
States , 379 U.
S. 241 , 252–253 (1964). Given the enforcement difficulties that
attend distinguishing between marijuana cultivated locally and
marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns
about diversion into illicit channels,[ Footnote 33 ] we have no difficulty concluding that
Congress had a rational basis for believing that failure to
regulate the intrastate manufacture and possession of marijuana
would leave a gaping hole in the CSA. Thus, as in Wickard ,
when it enacted comprehensive legislation to regulate the
interstate market in a fungible commodity, Congress was acting well
within its authority to “make all Laws which shall be necessary and
proper” to “regulate Commerce … among the several States.” U. S.
Const., Art. I, §8. That the regulation ensnares some purely
intrastate activity is of no moment. As we have done many times
before, we refuse to excise individual components of that larger
scheme.

															IV

															   To support their contrary
submission, respondents rely heavily on two of our more recent
Commerce Clause cases. In their myopic focus, they overlook the
larger context of modern-era Commerce Clause jurisprudence
preserved by those cases. Moreover, even in the narrow prism of
respondents’ creation, they read those cases far too broadly.
   Those two cases, of course, are Lopez , 514
U. S. 549 , and Morrison , 529
U. S. 598 . As an initial matter, the statutory challenges at
issue in those cases were markedly different from the challenge
respondents pursue in the case at hand. Here, respondents ask us to
excise individual applications of a concededly valid statutory
scheme. In contrast, in both Lopez and Morrison ,
the parties asserted that a particular statute or provision fell
outside Congress’ commerce power in its entirety. This distinction
is pivotal for we have often reiterated that “[w]here the class of
activities is regulated and that class is within the reach of
federal power, the courts have no power ‘to excise, as trivial,
individual instances’ of the class.” Perez, 402 U. S., at
154 (emphasis deleted) (quoting Wirtz , 392 U. S., at 193);
see also Hodel, 452 U. S., at 308.

															   At issue in Lopez , 514
U. S. 549 , was the validity of the Gun-Free School Zones Act of
1990, which was a brief, single-subject statute making it a crime
for an individual to possess a gun in a school zone. 104 Stat.
4844–4845, 18 U. S. C. §922(q)(1)(A). The Act did not regulate
any economic activity and did not contain any requirement that the
possession of a gun have any connection to past interstate activity
or a predictable impact on future commercial activity.
Distinguishing our earlier cases holding that comprehensive
regulatory statutes may be validly applied to local conduct that
does not, when viewed in isolation, have a significant impact on
interstate commerce, we held the statute invalid. We explained:

															“Section 922(q) is a criminal statute that by its
terms has nothing to do with ‘commerce’ or any sort of economic
enterprise, however broadly one might define those terms. Section
922(q) is not an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated. It cannot, therefore, be
sustained under our cases upholding regulations of activities that
arise out of or are connected with a commercial transaction, which
viewed in the aggregate, substantially affects interstate
commerce.” 514 U. S., at 561.

															   The statutory scheme that the
Government is defending in this litigation is at the opposite end
of the regulatory spectrum. As explained above, the CSA, enacted in
1970 as part of the Comprehensive Drug Abuse Prevention and Control
Act, 84 Stat. 1242–1284, was a lengthy and detailed statute
creating a comprehensive framework for regulating the production,
distribution, and possession of five classes of “controlled
substances.” Most of those substances—those listed in Schedules II
through V—“have a useful and legitimate medical purpose and are
necessary to maintain the health and general welfare of the
American people.” 21 U. S. C. §801(1). The regulatory scheme
is designed to foster the beneficial use of those medications, to
prevent their misuse, and to prohibit entirely the possession or
use of substances listed in Schedule I, except as a part of a
strictly controlled research project.

															   While the statute provided for the periodic
updating of the five schedules, Congress itself made the initial
classifications. It identified 42 opiates, 22 opium derivatives,
and 17 hallucinogenic substances as Schedule I drugs. 84 Stat.
1248. Marijuana was listed as the 10th item in the third
subcategory. That classification, unlike the discrete prohibition
established by the Gun-Free School Zones Act of 1990, was merely
one of many “essential part[s] of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated.” Lopez , 514 U. S.,
at 561.[ Footnote 34 ] Our
opinion in Lopez casts no doubt on the validity of such a
program.

															   Nor does this Court’s holding in Morrison , 529
U. S. 598 . The Violence Against Women Act of 1994, 108 Stat.
1902, created a federal civil remedy for the victims of
gender-motivated crimes of violence. 42 U. S. C. §13981. The
remedy was enforceable in both state and federal courts, and
generally depended on proof of the violation of a state law.
Despite congressional findings that such crimes had an adverse
impact on interstate commerce, we held the statute unconstitutional
because, like the statute in Lopez , it did not regulate
economic activity. We concluded that “the noneconomic, criminal
nature of the conduct at issue was central to our decision” in Lopez , and that our prior cases had identified a clear
pattern of analysis: “ ‘Where economic activity substantially
affects interstate commerce, legislation regulating that activity
will be sustained.’ ”[ Footnote 35 ] Morrison , 529 U. S., at 610.

															   Unlike those at issue in Lopez and Morrison , the activities regulated by the CSA are
quintessentially economic. “Economics” refers to “the production,
distribution, and consumption of commodities.” Webster’s Third New
International Dictionary 720 (1966). The CSA is a statute that
regulates the production, distribution, and consumption of
commodities for which there is an established, and lucrative,
interstate market. Prohibiting the intrastate possession or
manufacture of an article of commerce is a rational (and commonly
utilized) means of regulating commerce in that product.[ Footnote 36 ] Such prohibitions
include specific decisions requiring that a drug be withdrawn from
the market as a result of the failure to comply with regulatory
requirements as well as decisions excluding Schedule I drugs
entirely from the market. Because the CSA is a statute that
directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality.

															   The Court of Appeals was able to conclude
otherwise only by isolating a “separate and distinct” class of
activities that it held to be beyond the reach of federal power,
defined as “the intrastate, noncommercial cultivation, possession
and use of marijuana for personal medical purposes on the advice of
a physician and in accordance with state law.” 352 F. 3d, at
1229. The court characterized this class as “different in kind from
drug trafficking.” Id., at 1228. The differences between
the members of a class so defined and the principal traffickers in
Schedule I substances might be sufficient to justify a policy
decision exempting the narrower class from the coverage of the CSA.
The question, however, is whether Congress’ contrary policy
judgment, i.e. , its decision to include this narrower
“class of activities” within the larger regulatory scheme, was
constitutionally deficient. We have no difficulty concluding that
Congress acted rationally in determining that none of the
characteristics making up the purported class, whether viewed
individually or in the aggregate, compelled an exemption from the
CSA; rather, the subdivided class of activities defined by the
Court of Appeals was an essential part of the larger regulatory
scheme.

															   First, the fact that marijuana is used “for
personal medical purposes on the advice of a physician” cannot
itself serve as a distinguishing factor. 352 F. 3d, at 1229.
The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug,
Congress expressly found that the drug has no acceptable medical
uses. Moreover, the CSA is a comprehensive regulatory regime
specifically designed to regulate which controlled substances can
be utilized for medicinal purposes, and in what manner. Indeed,
most of the substances classified in the CSA “have a useful and
legitimate medical purpose.” 21 U. S. C. §801(1). Thus, even
if respondents are correct that marijuana does have accepted
medical uses and thus should be redesignated as a lesser schedule
drug,[ Footnote 37 ] the CSA
would still impose controls beyond what is required by California
law. The CSA requires manufacturers, physicians, pharmacies, and
other handlers of controlled substances to comply with statutory
and regulatory provisions mandating registration with the DEA,
compliance with specific production quotas, security controls to
guard against diversion, recordkeeping and reporting obligations,
and prescription requirements. See 21 U. S. C. §§821–830; 21
CFR §1301 et seq. (2004). Furthermore, the dispensing of
new drugs, even when doctors approve their use, must await federal
approval. United States v. Rutherford , 442 U. S. 544 (1979).
Accordingly, the mere fact that marijuana—like virtually every
other controlled substance regulated by the CSA—is used for
medicinal purposes cannot possibly serve to distinguish it from the
core activities regulated by the CSA.

															   Nor can it serve as an “objective marke[r]” or
“objective facto[r]” to arbitrarily narrow the relevant class as
the dissenters suggest, post , at 6 (O’Connor, J.,
dissenting); post , at 12 (Thomas, J., dissenting). More
fundamentally, if, as the principal dissent contends, the personal
cultivation, possession, and use of marijuana for medicinal
purposes is beyond the “ ‘outer limits’ of Congress’ Commerce
Clause authority,” post , at 1 (O’Connor, J., dissenting),
it must also be true that such personal use of marijuana (or any
other homegrown drug) for recreational purposes is also beyond
those “ ‘outer limits,’ ” whether or not a State elects
to authorize or even regulate such use. Justice Thomas’ separate
dissent suffers from the same sweeping implications. That is, the
dissenters’ rationale logically extends to place any federal regulation (including quality, prescription, or quantity
controls) of any locally cultivated and possessed
controlled substance for any purpose beyond the
“ ‘outer limits’ ” of Congress’ Commerce Clause
authority. One need not have a degree in economics to understand
why a nationwide exemption for the vast quantity of marijuana (or
other drugs) locally cultivated for personal use (which presumably
would include use by friends, neighbors, and family members) may
have a substantial impact on the interstate market for this
extraordinarily popular substance. The congressional judgment that
an exemption for such a significant segment of the total market
would undermine the orderly enforcement of the entire regulatory
scheme is entitled to a strong presumption of validity. Indeed,
that judgment is not only rational, but “visible to the naked eye,” Lopez , 514 U. S., at 563, under any commonsense appraisal
of the probable consequences of such an open-ended exemption.

															   Second, limiting the activity to marijuana
possession and cultivation “in accordance with state law” cannot
serve to place respondents’ activities beyond congressional reach.
The Supremacy Clause unambiguously provides that if there is any
conflict between federal and state law, federal law shall prevail.
It is beyond peradventure that federal power over commerce is
“ ‘superior to that of the States to provide for the welfare
or necessities of their inhabitants,’ ” however legitimate or
dire those necessities may be. Wirtz , 392 U. S., at 196
(quoting Sanitary Dist. of Chicago v. United
States , 266 U.
S. 405 , 426 (1925)). See also 392 U. S., at 195–196; Wickard , 317 U. S., at 124 (“ ‘[N]o form of state
activity can constitutionally thwart the regulatory power granted
by the commerce clause to Congress’ ”). Just as state
acquiescence to federal regulation cannot expand the bounds of the
Commerce Clause, see, e.g ., Morrison , 529 U. S.,
at 661–662 (Breyer, J., dissenting) (noting that 38 States
requested federal intervention), so too state action cannot
circumscribe Congress’ plenary commerce power. See United
States v. Darby , 312 U. S. 100 , 114
(1941) (“That power can neither be enlarged nor diminished by the
exercise or non-exercise of state power”).[ Footnote 38 ]

															   Respondents acknowledge this proposition, but
nonetheless contend that their activities were not “an essential
part of a larger regulatory scheme” because they had been “isolated
by the State of California, and [are] policed by the State of
California,” and thus remain “entirely separated from the market.”
Tr. of Oral Arg. 27. The dissenters fall prey to similar reasoning.
See n. 38, supra this page. The notion that California law
has surgically excised a discrete activity that is hermetically
sealed off from the larger interstate marijuana market is a dubious
proposition, and, more importantly, one that Congress could have
rationally rejected.

															   Indeed, that the California exemptions will
have a significant impact on both the supply and demand sides of
the market for marijuana is not just “plausible” as the principal
dissent concedes, post , at 16 (O’Connor, J., dissenting),
it is readily apparent. The exemption for physicians provides them
with an economic incentive to grant their patients permission to
use the drug. In contrast to most prescriptions for legal drugs,
which limit the dosage and duration of the usage, under California
law the doctor’s permission to recommend marijuana use is
open-ended. The authority to grant permission whenever the doctor
determines that a patient is afflicted with “any other illness for
which marijuana provides relief,” Cal. Health & Safety Code
Ann. §11362.5(b)(1)(A) (West Supp. 2005), is broad enough to allow
even the most scrupulous doctor to conclude that some recreational
uses would be therapeutic.[ Footnote 39 ] And our cases have taught us that there are
some unscrupulous physicians who overprescribe when it is
sufficiently profitable to do so.[ Footnote 40 ]

															   The exemption for cultivation by patients and
caregivers can only increase the supply of marijuana in the
California market.[ Footnote
41 ] The likelihood that all such production will promptly
terminate when patients recover or will precisely match the
patients’ medical needs during their convalescence seems remote;
whereas the danger that excesses will satisfy some of the
admittedly enormous demand for recreational use seems
obvious.[ Footnote 42 ]
Moreover, that the national and international narcotics trade has
thrived in the face of vigorous criminal enforcement efforts
suggests that no small number of unscrupulous people will make use
of the California exemptions to serve their commercial ends
whenever it is feasible to do so.[ Footnote 43 ] Taking into account the fact that California
is only one of at least nine States to have authorized the medical
use of marijuana, a fact Justice O’Connor’s dissent conveniently
disregards in arguing that the demonstrated effect on commerce
while admittedly “plausible” is ultimately “unsubstantiated,” post, at 14, 16, Congress could have rationally concluded
that the aggregate impact on the national market of all the
transactions exempted from federal supervision is unquestionably
substantial.

															   So, from the “separate and distinct” class of
activities identified by the Court of Appeals (and adopted by the
dissenters), we are left with “the intrastate, noncommercial
cultivation, possession and use of marijuana.” 352 F. 3d, at
1229. Thus the case for the exemption comes down to the claim that
a locally cultivated product that is used domestically rather than
sold on the open market is not subject to federal regulation. Given
the findings in the CSA and the undisputed magnitude of the
commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases endorsing its reasoning
foreclose that claim.

															V

															   Respondents also raise a
substantive due process claim and seek to avail themselves of the
medical necessity defense. These theories of relief were set forth
in their complaint but were not reached by the Court of Appeals. We
therefore do not address the question whether judicial relief is
available to respondents on these alternative bases. We do note,
however, the presence of another avenue of relief. As the Solicitor
General confirmed during oral argument, the statute authorizes
procedures for the reclassification of Schedule I drugs. But
perhaps even more important than these legal avenues is the
democratic process, in which the voices of voters allied with these
respondents may one day be heard in the halls of Congress. Under
the present state of the law, however, the judgment of the Court of
Appeals must be vacated. The case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. Footnote 1 See Alaska Stat. §§11.71.090,
17.37.010–17.37.080 (Lexis 2004); Colo. Const., Art. XVIII, §14,
Colo. Rev. Stat. §18–18–406.3 (Lexis 2004); Haw. Rev. Stat.
§§329–121 to 329–128 (2004 Cum. Supp.); Me. Rev. Stat. Ann., Tit.
22, §2383–B(5) (West 2004); Nev. Const., Art. 4, §38, Nev. Rev.
Stat. §§453A.010–453A.810 (2003); Ore. Rev. Stat. §§475.300–475.346
(2003); Vt. Stat. Ann., Tit. 18, §§4472–4474d (Supp. 2004); Wash.
Rev. Code §§69.51.010–69.51.080 (2004); see also Ariz. Rev. Stat.
Ann. §13–3412.01 (West Supp. 2004) (voter initiative permitting
physicians to prescribe Schedule I substances for medical purposes
that was purportedly repealed in 1997, but the repeal was rejected
by voters in 1998). In November 2004, Montana voters approved
Initiative 148, adding to the number of States authorizing the use
of marijuana for medical purposes. Footnote 2 1913 Cal. Stats. ch. 324, §8 a; see
also Gieringer, The Origins of Cannabis Prohibition in California,
Contemporary Drug Problems, 21–23 (rev. 2005). Footnote 3 Cal. Health & Safety Code Ann. §11362.5
(West Supp. 2005). The California Legislature recently enacted
additional legislation supplementing the Compassionate Use Act.
§§11362.7–11362.9 (West Supp. 2005). Footnote 4 “The people of the State of California hereby
find and declare that the purposes of the Compassionate Use Act of
1996 are as follows:

															   “(A) To ensure that seriously ill Californians
have the right to obtain and use marijuana for medical purposes
where that medical use is deemed appropriate and has been
recommended by a physician who has determined that the person’s
health would benefit from the use of marijuana in the treatment of
cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which marijuana
provides relief.

															   “(B) To ensure that patients and their primary
caregivers who obtain and use marijuana for medical purposes upon
the recommendation of a physician are not subject to criminal
prosecution or sanction.

															   “(C) To encourage the federal and state
governments to implement a plan to provide for the safe and
affordable distribution of marijuana to all patients in medical
need of marijuana.” §11362.5(b)(1) (West Supp. 2005). Footnote 5 “Notwithstanding any other provision of law,
no physician in this state shall be punished, or denied any right
or privilege, for having recommended marijuana to a patient for
medical purposes.” §11362.5(c) (West Supp. 2005). Footnote 6 “Section 11357, relating to the possession of
marijuana, and Section 11358, relating to the cultivation of
marijuana, shall not apply to a patient, or to a patient’s primary
caregiver, who possesses or cultivates marijuana for the personal
medical purposes of the patient upon the written or oral
recommendation or approval of a physician.” §11362.5(d) (West Supp.
2005). Footnote 7 §11362.5(e) (West Supp. 2005). Footnote 8 On remand, the District Court entered a
preliminary injunction enjoining petitioners “ ‘from arresting
or prosecuting Plaintiffs Angel McClary Raich and Diane Monson,
seizing their medical cannabis, forfeiting their property, or
seeking civil or administrative sanctions against them with respect
to the intrastate, non-commercial cultivation, possession, use, and
obtaining without charge of cannabis for personal medical purposes
on the advice of a physician and in accordance with state law, and
which is not used for distribution, sale, or exchange.’ ”
Brief for Petitioners 9. Footnote 9 See D. Musto & P. Korsmeyer, The Quest
for Drug Control 60 (2002) (hereinafter Musto & Korsmeyer). Footnote 10 H. R. Rep. No. 91–1444, pt. 2,
p. 22 (1970) (hereinafter H. R. Rep.); 26 Congressional
Quarterly Almanac 531 (1970) (hereinafter Almanac); Musto &
Korsmeyer 56–57. Footnote 11 Pure Food and Drug Act of 1906, ch. 3915, 34
Stat. 768, repealed by Act of June 25, 1938, ch. 675, §902(a), 52
Stat. 1059. Footnote 12 See United States v. Doremus, 249 U. S. 86 (1919); Leary v. United States, 395 U. S. 6 , 14–16 (1969). Footnote 13 See Doremus , 249 U. S., at
90–93. Footnote 14 R. Bonnie & C. Whitebread, The Marijuana
Conviction 154–174 (1999); L. Grinspoon & J. Bakalar,
Marihuana, the Forbidden Medicine 7–8 (rev. ed. 1997) (hereinafter
Grinspoon & Bakalar). Although this was the Federal
Government’s first attempt to regulate the marijuana trade, by this
time all States had in place some form of legislation regulating
the sale, use, or possession of marijuana. R. Isralowitz, Drug Use,
Policy, and Management 134 (2d ed. 2002). Footnote 15 Leary , 395 U. S., at 14–16. Footnote 16 Grinspoon & Bakalar 8. Footnote 17 Leary , 395 U. S., at 16–18. Footnote 18 Musto & Korsmeyer 32–35; 26 Almanac 533.
In 1973, the Bureau of Narcotics and Dangerous Drugs became the
Drug Enforcement Administration (DEA). See Reorg. Plan No. 2 of
1973, §1, 28 CFR §0.100 (1973). Footnote 19 The Comprehensive Drug Abuse Prevention and
Control Act of 1970 consists of three titles. Title I relates to
the prevention and treatment of narcotic addicts through HEW (now
the Department of Health and Human Services). 84 Stat. 1238. Title
II, as discussed in more detail above, addresses drug control and
enforcement as administered by the Attorney General and the DEA. Id., at 1242. Title III concerns the import and export of
controlled substances. Id., at 1285. Footnote 20 In particular, Congress made the following
findings:

															   “(1) Many of the drugs included within this
subchapter have a useful and legitimate medical purpose and are
necessary to maintain the health and general welfare of the
American people.

															   “(2) The illegal importation, manufacture,
distribution, and possession and improper use of controlled
substances have a substantial and detrimental effect on the health
and general welfare of the American people.

															   “(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(1)–(6). Footnote 21 See United States v. Moore, 423 U. S. 122 , 135 (1975); see
also H. R. Rep., at 22. Footnote 22 H. R. Rep. , at 61 (quoting
letter from Roger E. Egeberg, M. D. to Hon. Harley O. Staggers
(Aug. 14, 1970)). Footnote 23 Starting in 1972, the National Organization
for the Reform of Marijuana Laws (NORML) began its campaign to
reclassify marijuana. Grinspoon & Bakalar 13–17. After some
fleeting success in 1988 when an Administrative Law Judge (ALJ)
declared that the DEA would be acting in an “unreasonable,
arbitrary, and capricious” manner if it continued to deny marijuana
access to seriously ill patients, and concluded that it should be
reclassified as a Schedule III substance, Grinspoon v. DEA , 828 F. 2d 881, 883–884 (CA1 1987), the campaign
has proved unsuccessful. The DEA Administrator did not endorse the
ALJ’s findings, 54 Fed. Reg. 53767 (1989), and since that time has
routinely denied petitions to reschedule the drug, most recently in
2001. 66 Fed. Reg. 20038 (2001). The Court of Appeals for the
District of Columbia Circuit has reviewed the petition to
reschedule marijuana on five separate occasions over the course of
30 years, ultimately upholding the Administrator’s final order. See Alliance for Cannabis Therapeutics v. DEA , 15
F. 3d 1131, 1133 (1994). Footnote 24 United States v. Lopez , 514
U. S. 549 , 552–558 (1995); id., at 568–574 (Kennedy,
J., concurring); id ., at 604–607 (Souter, J.,
dissenting). Footnote 25 See Gibbons v. Ogden, 9
Wheat. 1, 224 (1824) (opinion of Johnson, J.); Stern, That Commerce
Which Concerns More States Than One, 47 Harv. L. Rev. 1335,
1337, 1340–1341 (1934); G. Gunther, Constitutional Law 127 (9th ed.
1975). Footnote 26 See Lopez, 514 U. S., at 553–554; id., at 568–569 (Kennedy, J., concurring); see also Granholm v. Heald , 544 U. S. __, __ (2005) (slip
op., at 8–9). Footnote 27 Lopez, 514 U. S., at 554; see also Wickard v. Filburn , 317
U. S. 111 , 121 (1942) (“It was not until 1887, with the
enactment of the Interstate Commerce Act, that the interstate
commerce power began to exert positive influence in American law
and life. This first important federal resort to the commerce power
was followed in 1890 by the Sherman Anti-Trust Act and, thereafter,
mainly after 1903, by many others. These statutes ushered in new
phases of adjudication, which required the Court to approach the
interpretation of the Commerce Clause in the light of an actual
exercise by Congress of its power thereunder” (footnotes
omitted)). Footnote 28 Even respondents acknowledge the existence of
an illicit market in marijuana; indeed, Raich has personally
participated in that market, and Monson expresses a willingness to
do so in the future. App. 59, 74, 87. See also Department of
Revenue of Mont. v. Kurth Ranch , 511 U. S. 767 , 770, 774,
n. 12, and 780, n. 17 (1994) (discussing the “market
value” of marijuana); id. , at 790 (Rehnquist, C. J.,
dissenting); id. , at 792 (O’Connor, J., dissenting); Whalen v. Roe , 429 U. S. 589 , 591
(1977) (addressing prescription drugs “for which there is both a
lawful and an unlawful market”); Turner v. United
States , 396 U.
S. 398 , 417, n. 33 (1970) (referring to the purchase of
drugs on the “retail market”). Footnote 29 To be sure, the wheat market is a lawful
market that Congress sought to protect and stabilize, whereas the
marijuana market is an unlawful market that Congress sought to
eradicate. This difference, however, is of no constitutional
import. It has long been settled that Congress’ power to regulate
commerce includes the power to prohibit commerce in a particular
commodity. Lopez, 514 U. S., at 571 (Kennedy, J.,
concurring) (“In the Lottery Case , 188 U. S. 321 (1903),
the Court rejected the argument that Congress lacked [the] power to
prohibit the interstate movement of lottery tickets because it had
power only to regulate, not to prohibit”); see also Wickard , 317 U. S., at 128 (“The stimulation of commerce
is a use of the regulatory function quite as definitely as
prohibitions or restrictions thereon”). Footnote 30 See Wickard, 317 U. S., at 125
(recognizing that Wickard’s activity “may not be regarded as
commerce”). Footnote 31 The Executive Office of the President has
estimated that in 2000 American users spent $10.5 billion on the purchase of marijuana. Office of Nat. Drug Control Policy,
Marijuana Fact Sheet 5 (Feb. 2004), available at
http://www.whitehousedrugpolicy.gov/publications/factsht/marijuana/
(all Internet materials as visited June 2, 2005, and available in
Clerk of Court’s case file). Footnote 32 Moreover, as discussed in more detail above,
Congress did make findings regarding the effects of intrastate drug
activity on interstate commerce. See n. 20, supra .
Indeed, even the Court of Appeals found that those findings
“weigh[ed] in favor” of upholding the constitutionality of the CSA.
352 F. 3d 1222, 1232 (CA9 2003) (case below). The dissenters,
however, would impose a new and heightened burden on Congress
(unless the litigants can garner evidence sufficient to cure
Congress’ perceived “inadequa[cies]”)—that legislation must contain
detailed findings proving that each activity regulated within a
comprehensive statute is essential to the statutory scheme. Post, at 13–15 (O’Connor, J., dissenting); post ,
at 8 (Thomas, J., dissenting). Such an exacting requirement is not
only unprecedented, it is also impractical. Indeed, the principal
dissent’s critique of Congress for “not even” including
“declarations” specific to marijuana is particularly unpersuasive
given that the CSA initially identified 80 other substances subject
to regulation as Schedule I drugs, not to mention those categorized
in Schedules II–V. Post , at 14 (O’Connor, J.,
dissenting) . Surely, Congress cannot be expected (and
certainly should not be required) to include specific findings on
each and every substance contained therein in order to satisfy the
dissenters’ unfounded skepticism. Footnote 33 See n. 21, supra (citing
sources that evince Congress’ particular concern with the diversion
of drugs from legitimate to illicit channels). Footnote 34 The principal dissent asserts that by
“[s]eizing upon our language in Lopez ,” post , at
5 (opinion of O’Connor, J.), i.e., giving effect to our
well-established case law, Congress will now have an incentive to
legislate broadly. Even putting aside the political checks that
would generally curb Congress’ power to enact a broad and
comprehensive scheme for the purpose of targeting purely local
activity, there is no suggestion that the CSA constitutes the type
of “evasive” legislation the dissent fears, nor could such an
argument plausibly be made. Post , at 6 (O’Connor, J.,
dissenting) . Footnote 35 Lopez, 514 U. S., at 560; see also id. , at 573–574 (Kennedy, J., concurring) (stating that Lopez did not alter our “practical conception of
commercial regulation” and that Congress may “regulate in the
commercial sphere on the assumption that we have a single market
and a unified purpose to build a stable national economy”). Footnote 36 See 16 U. S. C. §668(a) (bald and golden
eagles); 18 U. S. C. §175(a) (biological weapons); §831(a)
(nuclear material); §842(n)(1) (certain plastic explosives);
§2342(a) (contraband cigarettes). Footnote 37 We acknowledge that evidence proffered by
respondents in this case regarding the effective medical uses for
marijuana, if found credible after trial, would cast serious doubt
on the accuracy of the findings that require marijuana to be listed
in Schedule I. See, e.g., Institute of Medicine, Marijuana
and Medicine: Assessing the Science Base 179 (J. Joy, S. Watson,
& J. Benson eds. 1999) (recognizing that “[s]cientific data
indicate the potential therapeutic value of cannabinoid drugs,
primarily THC [Tetrahydrocannabinol] for pain relief, control of
nausea and vomiting, and appetite stimulation”); see also Conant v. Walters , 309 F. 3d 629, 640–643
(CA9 2002) (Kozinski, J., concurring) (chronicling medical studies
recognizing valid medical uses for marijuana and its derivatives).
But the possibility that the drug may be reclassified in the future
has no relevance to the question whether Congress now has the power
to regulate its production and distribution. Respondents’
submission, if accepted, would place all homegrown medical
substances beyond the reach of Congress’ regulatory
jurisdiction. Footnote 38 That is so even if California’s current
controls (enacted eight years after the Compassionate Use Act was
passed) are “[e]ffective,” as the dissenters would have us blindly
presume, post , at 15 (O’Connor, J., dissenting); post , at 6, 12 (Thomas, J., dissenting). California’s
decision (made 34 years after the CSA was enacted) to impose
“stric[t] controls” on the “cultivation and possession of marijuana
for medical purposes,” post , at 6 (Thomas, J.,
dissenting), cannot retroactively divest Congress of its authority
under the Commerce Clause. Indeed, Justice Thomas’ urgings to the
contrary would turn the Supremacy Clause on its head, and would
resurrect limits on congressional power that have long since been
rejected. See post , at 8 (Scalia, J., concurring in
judgment) (quoting McCulloch v. Maryland, 4
Wheat. 316, 424 (1819)) (“ ‘To impose on [Congress] the
necessity of resorting to means which it cannot control, which
another government may furnish or withhold, would render its course
precarious, the result of its measures uncertain, and create a
dependence on other governments, which might disappoint its most
important designs, and is incompatible with the language of the
constitution’ ”).

															Moreover, in addition to casting aside more than a century of
this Court’s Commerce Clause jurisprudence, it is noteworthy that
Justice Thomas’ suggestion that States possess the power to dictate
the extent of Congress’ commerce power would have far-reaching
implications beyond the facts of this case. For example, under his
reasoning, Congress would be equally powerless to regulate, let
alone prohibit, the intrastate possession, cultivation, and use of
marijuana for recreational purposes, an activity which all
States “strictly contro[l].” Indeed, his rationale seemingly would
require Congress to cede its constitutional power to regulate
commerce whenever a State opts to exercise its “traditional police
powers to define the criminal law and to protect the health,
safety, and welfare of their citizens.” Post , at 9–10
(dissenting opinion). Footnote 39 California’s Compassionate Use Act has since
been amended, limiting the catchall category to “[a]ny other
chronic or persistent medical symptom that either: …
[s]ubstantially limits the ability of the person to conduct one or
more major life activities as defined” in the Americans with
Disabilities Act of 1990, or “[i]f not alleviated, may cause
serious harm to the patient’s safety or physical or mental health.”
Cal. Health & Safety Code Ann. §§11362.7(h)(12)(A) to (12)(B)
(West Supp. 2005). Footnote 40 See, e.g., United States v. Moore, 423 U. S. 122 (1975); United
States v. Doremus , 249 U. S. 86 (1919). Footnote 41 The state policy allows patients to possess
up to eight ounces of dried marijuana, and to cultivate up to 6
mature or 12 immature plants. Cal. Health & Safety Code Ann.
§11362.77(a) (West Supp. 2005). However, the quantity limitations
serve only as a floor. Based on a doctor’s recommendation, a
patient can possess whatever quantity is necessary to satisfy his
medical needs, and cities and counties are given carte
blanche to establish more generous limits. Indeed, several
cities and counties have done just that. For example, patients
residing in the cities of Oakland and Santa Cruz and in the
counties of Sonoma and Tehama are permitted to possess up to 3
pounds of processed marijuana. Reply Brief for United States 19
(citing Proposition 215 Enforcement Guidelines). Putting that
quantity in perspective, 3 pounds of marijuana yields roughly 3,000
joints or cigarettes. Executive Office of the President, Office of
National Drug Control Policy, What America’s Users Spend on Illegal
Drugs 24 (Dec. 2001),
http://www.whitehousedrugpolicy.gov/publications/pdf/american_users_spend_2002.pdf.
And the street price for that amount can range anywhere from $900
to $24,000. DEA, Illegal Drug Price and Purity Report (Apr. 2003)
(DEA–02058). Footnote 42 For example, respondent Raich attests that
she uses 2.5 ounces of cannabis a week. App. 82. Yet as a resident
of Oakland, she is entitled to possess up to 3 pounds of processed
marijuana at any given time, nearly 20 times more than she uses on
a weekly basis. Footnote 43 See, e.g., People ex rel.
Lungren v. Peron , 59 Cal. App. 4th 1383, 1386–1387
(1997) (recounting how a Cannabis Buyers’ Club engaged in an
“indiscriminate and uncontrolled pattern of sale to thousands of
persons among the general public, including persons who had not
demonstrated any recommendation or approval of a physician and, in
fact, some of whom were not under the care of a physician, such as
undercover officers,” and noting that “some persons who had
purchased marijuana on respondents’ premises were reselling it
unlawfully on the street”). SCALIA, J., CONCURRING IN JUDGMENT GONZALES V. RAICH 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1454 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al.,
PETITIONERS v. ANGEL McCLARY RAICH et al.

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[June 6, 2005]

															   Justice Scalia, concurring in the
judgment.

															   I agree with the Court’s holding
that the Controlled Substances Act (CSA) may validly be applied to
respondents’ cultivation, distribution, and possession of marijuana
for personal, medicinal use. I write separately because my
understanding of the doctrinal foundation on which that holding
rests is, if not inconsistent with that of the Court, at least more
nuanced.

															   Since Perez v. United
States, 402 U.
S. 146 (1971), our cases have mechanically recited that the
Commerce Clause permits congressional regulation of three
categories: (1) the channels of interstate commerce; (2) the
instrumentalities of interstate commerce, and persons or things in
interstate commerce; and (3) activities that “substantially affect”
interstate commerce. Id. , at 150; see United
States v. Morrison , 529 U. S. 598 , 608–609
(2000); United States v. Lopez , 514 U. S. 549 , 558–559 (1995); Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U. S. 264 , 276–277
(1981). The first two categories are self-evident, since they are
the ingredients of interstate commerce itself. See Gibbons v. Ogden , 9 Wheat. 1, 189–190 (1824). The third category,
however, is different in kind, and its recitation without
explanation is misleading and incomplete.

															   It is misleading because, unlike the
channels, instrumentalities, and agents of interstate commerce,
activities that substantially affect interstate commerce are not
themselves part of interstate commerce, and thus the power to
regulate them cannot come from the Commerce Clause alone. Rather,
as this Court has acknowledged since at least United
States v. Coombs, 12 Pet. 72 (1838), Congress’s
regulatory authority over intrastate activities that are not
themselves part of interstate commerce (including activities that
have a substantial effect on interstate commerce) derives from the
Necessary and Proper Clause. Id. , at 78; Katzenbach v. McClung , 379 U. S. 294 , 301–302
(1964); United States v. Wrightwood Dairy Co., 315 U. S. 110 ,
119 (1942); Shreveport Rate Cases, 234 U. S. 342 , 353
(1914); United States v. E. C. Knight Co., 156 U. S. 1 , 39–40
(1895) (Harlan, J., dissenting).[ Footnote 1 ] And the category of “activities that
substantially affect interstate commerce,” Lopez , supra , at 559, is incomplete because the
authority to enact laws necessary and proper for the regulation of
interstate commerce is not limited to laws governing intrastate
activities that substantially affect interstate commerce. Where
necessary to make a regulation of interstate commerce effective,
Congress may regulate even those intrastate activities that do not
themselves substantially affect interstate commerce.

															I

															   Our cases show that the
regulation of intrastate activities may be necessary to and proper
for the regulation of interstate commerce in two general
circumstances. Most directly, the commerce power permits Congress
not only to devise rules for the governance of commerce between
States but also to facilitate interstate commerce by eliminating
potential obstructions, and to restrict it by eliminating potential
stimulants. See NLRB v. Jones & Laughlin Steel
Corp., 301 U. S.
1 , 36–37 (1937). That is why the Court has repeatedly sustained
congressional legislation on the ground that the regulated
activities had a substantial effect on interstate commerce. See, e.g. , Hodel, supra , at 281 (surface coal
mining); Katzenbach , supra , at 300
(discrimination by restaurants); Heart of Atlanta Motel,
Inc. v. United States , 379 U. S. 241 , 258
(1964) (discrimination by hotels); Mandeville Island Farms v. American Crystal Sugar Co. , 334 U. S. 219 , 237
(1948) (intrastate price-fixing); Board of Trade of
Chicago v. Olsen, 262 U. S. 1 , 40 (1923)
(activities of a local grain exchange); Stafford v. Wallace, 258 U. S. 495 , 517,
524–525 (1922) (intrastate transactions at stockyard). Lopez and Morrison recognized the expansive scope
of Congress’s authority in this regard: “[T]he pattern is clear.
Where economic activity substantially affects interstate commerce,
legislation regulating that activity will be sustained.” Lopez , supra , at 560; Morrison , supra , at 610 (same).

															   This principle is not without
limitation. In Lopez and Morrison , the
Court—conscious of the potential of the “substantially affects”
test to “ ‘obliterate the distinction between what is national
and what is local,’ ” Lopez , supra , at
566–567 (quoting A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 , 554
(1935)); see also Morrison , supra , at
615–616—rejected the argument that Congress may regulate noneconomic activity based solely on the effect that it
may have on interstate commerce through a remote chain of
inferences. Lopez , supra , at 564–566; Morrison , supra , at 617–618. “[I]f we were to
accept [such] arguments,” the Court reasoned in Lopez , “we
are hard pressed to posit any activity by an individual that
Congress is without power to regulate.” Lopez , supra , at 564; see also Morrison , supra ,
at 615–616. Thus, although Congress’s authority to regulate
intrastate activity that substantially affects interstate commerce
is broad, it does not permit the Court to “pile inference upon
inference,” Lopez , supra , at 567, in order to
establish that noneconomic activity has a substantial effect on
interstate commerce.

															   As we implicitly acknowledged in Lopez , however, Congress’s authority to enact laws
necessary and proper for the regulation of interstate commerce is
not limited to laws directed against economic activities that have
a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized
that it could be regulated as “an essential part of a larger
regulation of economic activity, in which the regulatory scheme
could be undercut unless the intrastate activity were regulated.”
514 U. S., at 561. This statement referred to those cases
permitting the regulation of intrastate activities “which in a
substantial way interfere with or obstruct the exercise of the
granted power.” Wrightwood Dairy Co. , 315 U. S., at 119;
see also United States v. Darby , 312 U. S. 100 , 118–119
(1941); Shreveport Rate Cases , 234 U. S., at 353. As the
Court put it in Wrightwood Dairy , where Congress has the
authority to enact a regulation of interstate commerce, “it
possesses every power needed to make that regulation effective.”
315 U. S., at 118–119.

															   Although this power “to make … regulation
effective” commonly overlaps with the authority to regulate
economic activities that substantially affect interstate
commerce,[ Footnote 2 ] and may
in some cases have been confused with that authority, the two are
distinct. The regulation of an intrastate activity may be essential
to a comprehensive regulation of interstate commerce even though
the intrastate activity does not itself “substantially affect”
interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local
activity if that regulation is a necessary part of a more general
regulation of interstate commerce. See Lopez , supra , at 561. The relevant question is simply whether the
means chosen are “reasonably adapted” to the attainment of a
legitimate end under the commerce power. See Darby , supra , at 121.

															   In Darby , for instance, the Court
explained that “Congress, having … adopted the policy of excluding
from interstate commerce all goods produced for the commerce which
do not conform to the specified labor standards,” 312 U. S., at
121, could not only require employers engaged in the production of
goods for interstate commerce to conform to wage and hour
standards, id. , at 119–121, but could also require those
employers to keep employment records in order to demonstrate
compliance with the regulatory scheme, id. , at 125. While
the Court sustained the former regulation on the alternative ground
that the activity it regulated could have a “great effect” on
interstate commerce, id. , at 122–123, it affirmed the
latter on the sole ground that “[t]he requirement for records even
of the intrastate transaction is an appropriate means to a
legitimate end,” id ., at 125.

															   As the Court said in the Shreveport Rate
Cases , the Necessary and Proper Clause does not give “Congress
… the authority to regulate the internal commerce of a State, as
such,” but it does allow Congress “to take all measures necessary
or appropriate to” the effective regulation of the interstate
market, “although intrastate transactions … may thereby be
controlled.” 234 U. S., at 353; see also Jones & Laughlin
Steel Corp. , 301 U. S., at 38 (the logic of the Shreveport Rate Cases is not limited to instrumentalities
of commerce).

															II

															   Today’s principal dissent objects
that, by permitting Congress to regulate activities necessary to
effective interstate regulation, the Court reduces Lopez and Morrison to “little more than a drafting guide.” Post , at 5 (opinion of O’Connor, J.). I think that
criticism unjustified. Unlike the power to regulate activities that
have a substantial effect on interstate commerce, the power to
enact laws enabling effective regulation of interstate commerce can
only be exercised in conjunction with congressional regulation of
an interstate market, and it extends only to those measures
necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress
may regulate noneconomic intrastate activities only where the
failure to do so “could … undercut” its regulation of interstate
commerce. See Lopez , supra , at 561; ante , at 15, 21, 22. This is not a power that threatens to
obliterate the line between “what is truly national and what is
truly local.” Lopez , supra , at 567–568. Lopez and Morrison affirm that Congress may not regulate certain
“purely local” activity within the States based solely on the
attenuated effect that such activity may have in the interstate
market. But those decisions do not declare noneconomic intrastate
activities to be categorically beyond the reach of the Federal
Government. Neither case involved the power of Congress to exert
control over intrastate activities in connection with a more
comprehensive scheme of regulation; Lopez expressly
disclaimed that it was such a case, 514 U. S., at 561, and Morrison did not even discuss the possibility that it was.
(The Court of Appeals in Morrison made clear that it was
not. See Brzonkala v. Virginia Polytechnic Inst. ,
169 F. 3d 820, 834–835 (CA4 1999) (en banc).) To dismiss this
distinction as “superficial and formalistic,” see post , at
6 (O’Connor, J., dissenting), is to misunderstand the nature of the
Necessary and Proper Clause, which empowers Congress to enact laws
in effectuation of its enumerated powers that are not within its
authority to enact in isolation. See McCulloch v. Maryland , 4 Wheat. 316, 421–422 (1819).

															   And there are other restraints upon the
Necessary and Proper Clause authority. As Chief Justice Marshall
wrote in McCulloch v. Maryland , even when the end
is constitutional and legitimate, the means must be “appropriate”
and “plainly adapted” to that end. Id. , at 421. Moreover,
they may not be otherwise “prohibited” and must be “consistent with
the letter and spirit of the constitution.” Ibid. These
phrases are not merely hortatory. For example, cases such as Printz v. United States , 521 U. S. 898 (1997),
and New York v. United States , 505 U. S. 144 (1992),
affirm that a law is not “ ‘ proper for carrying into
Execution the Commerce Clause’ ” “[w]hen [it] violates [a
constitutional] principle of state sovereignty.” Printz , supra , at 923–924; see also New York , supra , at 166.

															III

															   The application of these
principles to the case before us is straightforward. In the CSA,
Congress has undertaken to extinguish the interstate market in
Schedule I controlled substances, including marijuana. The Commerce
Clause unquestionably permits this. The power to regulate
interstate commerce “extends not only to those regulations which
aid, foster and protect the commerce, but embraces those which
prohibit it.” Darby , 312 U. S., at 113. See also Hipolite Egg Co. v. United States, 220 U. S. 45 , 58 (1911); Lottery Case, 188 U. S. 321 , 354
(1903). To effectuate its objective, Congress has prohibited almost
all intrastate activities related to Schedule I substances—both
economic activities (manufacture, distribution, possession with the
intent to distribute) and noneconomic activities (simple
possession). See 21 U. S. C. §§841(a), 844(a). That simple
possession is a noneconomic activity is immaterial to whether it
can be prohibited as a necessary part of a larger regulation.
Rather, Congress’s authority to enact all of these prohibitions of
intrastate controlled-substance activities depends only upon
whether they are appropriate means of achieving the legitimate end
of eradicating Schedule I substances from interstate commerce.

															   By this measure, I think the
regulation must be sustained. Not only is it impossible to
distinguish “controlled substances manufactured and distributed
intrastate” from “controlled substances manufactured and
distributed interstate,” but it hardly makes sense to speak in such
terms. Drugs like marijuana are fungible commodities. As the Court
explains, marijuana that is grown at home and possessed for
personal use is never more than an instant from the interstate
market—and this is so whether or not the possession is for
medicinal use or lawful use under the laws of a particular
State.[ Footnote 3 ] See ante , at 23–30. Congress need not accept on faith that
state law will be effective in maintaining a strict division
between a lawful market for “medical” marijuana and the more
general marijuana market. See id. , at 26–27, and n. 38.
“To impose on [Congress] the necessity of resorting to means which
it cannot control, which another government may furnish or
withhold, would render its course precarious, the result of its
measures uncertain, and create a dependence on other governments,
which might disappoint its most important designs, and is
incompatible with the language of the constitution.” McCulloch , supra , at 424.

															   Finally, neither respondents nor the
dissenters suggest any violation of state sovereignty of the sort
that would render this regulation “inappropriate,” id. , at
421—except to argue that the CSA regulates an area typically left
to state regulation. See post , at 6–7, 11 (opinion of
O’Connor, J.); post , at 8–9 (opinion of Thomas, J.); Brief
for Respondents 39–42. That is not enough to render federal
regulation an inappropriate means. The Court has repeatedly
recognized that, if authorized by the commerce power, Congress may
regulate private endeavors “even when [that regulation] may
pre-empt express state-law determinations contrary to the result
which has commended itself to the collective wisdom of Congress.” National League of Cities v. Usery , 426 U. S. 833 , 840
(1976); see Cleveland v. United States , 329 U. S. 14 , 19 (1946); McCulloch, supra , at 424. At bottom, respondents’
state-sovereignty argument reduces to the contention that federal
regulation of the activities permitted by California’s
Compassionate Use Act is not sufficiently necessary to be
“necessary and proper” to Congress’s regulation of the interstate
market. For the reasons given above and in the Court’s opinion, I
cannot agree.

															***

															   I thus agree with the Court that,
however the class of regulated activities is subdivided, Congress
could reasonably conclude that its objective of prohibiting
marijuana from the interstate market “could be undercut” if those
activities were excepted from its general scheme of regulation. See Lopez , 514 U. S., at 561. That is sufficient to authorize
the application of the CSA to respondents. Footnote 1 See also Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S. 528 , 584–585
(1985) (O’Connor, J., dissenting) (explaining that it is through
the Necessary and Proper Clause that “an intrastate activity
‘affecting’ interstate commerce can be reached through the commerce
power”). Footnote 2 Wickard v. Filburn , 317 U. S. 111 (1942), presented such a case. Because the unregulated production
of wheat for personal consumption diminished demand in the
regulated wheat market, the Court said, it carried with it the
potential to disrupt Congress’s price regulation by driving down
prices in the market. Id ., at 127–129. This potential
disruption of Congress’s interstate regulation, and not only the
effect that personal consumption of wheat had on interstate
commerce, justified Congress’s regulation of that conduct. Id. , at 128–129. Footnote 3 The principal dissent claims that, if this is
sufficient to sustain the regulation at issue in this case, then it
should also have been sufficient to sustain the regulation at issue
in United States v. Lopez , 514 U. S. 549 (1995). See post , at 11–12 (arguing that “we could have surmised in Lopez that guns in school zones are ‘never more than an
instant from the interstate market’ in guns already subject to
federal regulation, recast Lopez as a Necessary and Proper
Clause case, and thereby upheld the Gun-Free School Zones Act”).
This claim founders upon the shoals of Lopez itself, which
made clear that the statute there at issue was “ not an
essential part of a larger regulation of economic activity.” Lopez , supra , at 561 (emphasis added). On the
dissent’s view of things, that statement is inexplicable. Of course
it is in addition difficult to imagine what intelligible scheme of
regulation of the interstate market in guns could have as an
appropriate means of effectuation the prohibition of guns within
1000 feet of schools (and nowhere else). The dissent points to a
federal law, 18 U. S. C. §922(b)(1), barring licensed dealers
from selling guns to minors, see post , at 12, but the
relationship between the regulatory scheme of which §922(b)(1) is a
part (requiring all dealers in firearms that have traveled in
interstate commerce to be licensed, see §922(a)) and the statute at
issue in Lopez approaches the nonexistent—which is
doubtless why the Government did not attempt to justify the statute
on the basis of that relationship. O'CONNOR, J., DISSENTING GONZALES V. RAICH 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1454 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al.,
PETITIONERS v. ANGEL McCLARY RAICH et al.

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[June 6, 2005]

															   Justice O’Connor, with whom The
Chief Justice and Justice Thomas join as to all but Part III,
dissenting.

															   We enforce the “outer limits” of
Congress’ Commerce Clause authority not for their own sake, but to
protect historic spheres of state sovereignty from excessive
federal encroachment and thereby to maintain the distribution of
power fundamental to our federalist system of government. United States v. Lopez , 514 U. S. 549 , 557
(1995); NLRB v. Jones & Laughlin Steel Corp ., 301 U. S. 1 , 37
(1937). One of federalism’s chief virtues, of course, is that it
promotes 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 without
risk to the rest of the country.” New State Ice Co. v. Liebmann , 285 U. S. 262 , 311
(1932) (Brandeis, J., dissenting).

															   This case exemplifies the role of States as
laboratories. The States’ core police powers have always included
authority to define criminal law and to protect the health, safety,
and welfare of their citizens. Brecht v. Abrahamson , 507 U. S. 619 , 635
(1993); Whalen v. Roe , 429 U. S. 589 , 603,
n. 30 (1977). Exercising those powers, California (by ballot
initiative and then by legislative codification) has come to its
own conclusion about the difficult and sensitive question of
whether marijuana should be available to relieve severe pain and
suffering. Today the Court sanctions an application of the federal
Controlled Substances Act that extinguishes that experiment,
without any proof that the personal cultivation, possession, and
use of marijuana for medicinal purposes, if economic activity in
the first place, has a substantial effect on interstate commerce
and is therefore an appropriate subject of federal regulation. In
so doing, the Court announces a rule that gives Congress a perverse
incentive to legislate broadly pursuant to the Commerce
Clause—nestling questionable assertions of its authority into
comprehensive regulatory schemes—rather than with precision. That
rule and the result it produces in this case are irreconcilable
with our decisions in Lopez, supra , and United
States v. Morrison , 529 U. S. 598 (2000).
Accordingly I dissent.

															I

															   In Lopez , we considered
the constitutionality of the Gun-Free School Zones Act of 1990,
which made it a federal offense “for any individual knowingly to
possess a firearm … at a place the individual knows, or has
reasonable cause to believe, is a school zone,” 18 U. S. C.
§922(q)(2)(A). We explained that “Congress’ commerce authority
includes the power to regulate those activities having a
substantial relation to interstate commerce … , i.e. ,
those activities that substantially affect interstate commerce.”
514 U. S., at 558–559 (citation omitted). This power derives from
the conjunction of the Commerce Clause and the Necessary and Proper
Clause. Garcia v. San Antonio Metropolitan Transit
Authority , 469
U. S. 528 , 585–586 (1985) (O’Connor, J., dissenting)
(explaining that United States v. Darby , 312 U. S. 100 (1941), United States v. Wrightwood Dairy Co. , 315 U. S. 110 (1942),
and Wickard v. Filburn , 317 U. S. 111 (1942),
based their expansion of the commerce power on the Necessary and
Proper Clause, and that “the reasoning of these cases underlies
every recent decision concerning the reach of Congress to
activities affecting interstate commerce”); ante , at 2
(Scalia, J., concurring in judgment). We held in Lopez that the Gun-Free School Zones Act could not be sustained as an
exercise of that power.

															   Our decision about whether gun
possession in school zones substantially affected interstate
commerce turned on four considerations. Lopez , supra , at 559–567; see also Morrison , supra , at 609–613. First, we observed that our
“substantial effects” cases generally have upheld federal
regulation of economic activity that affected interstate commerce,
but that §922(q) was a criminal statute having “nothing to do with
‘commerce’ or any sort of economic enterprise.” Lopez , 514
U. S., at 561. In this regard, we also noted that “[s]ection 922(q)
is not an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated. It cannot, therefore, be
sustained under our cases upholding regulations of activities that
arise out of or are connected with a commercial transaction, which
viewed in the aggregate, substantially affects interstate
commerce.” Ibid. Second, we noted that the statute
contained no express jurisdictional requirement establishing its
connection to interstate commerce. Ibid .

															   Third, we found telling the absence of
legislative findings about the regulated conduct’s impact on
interstate commerce. We explained that while express legislative
findings are neither required nor, when provided, dispositive,
findings “enable us to evaluate the legislative judgment that the
activity in question substantially affect[s] interstate commerce,
even though no such substantial effect [is] visible to the naked
eye.” Id ., at 563. Finally, we rejected as too attenuated
the Government’s argument that firearm possession in school zones
could result in violent crime which in turn could adversely affect
the national economy. Id. , at 563–567. The Constitution,
we said, does not tolerate reasoning that would “convert
congressional authority under the Commerce Clause to a general
police power of the sort retained by the States.” Id ., at
567. Later in Morrison , supra , we relied on the
same four considerations to hold that §40302 of the Violence
Against Women Act of 1994, 42 U. S. C. §13981, exceeded
Congress’ authority under the Commerce Clause.

															   In my view, the case before us is materially
indistinguishable from Lopez and Morrison when
the same considerations are taken into account.

															II

															A

															   What is the relevant conduct
subject to Commerce Clause analysis in this case? The Court takes
its cues from Congress, applying the above considerations to the
activity regulated by the Controlled Substances Act (CSA) in
general. The Court’s decision rests on two facts about the CSA: (1)
Congress chose to enact a single statute providing a comprehensive
prohibition on the production, distribution, and possession of all
controlled substances, and (2) Congress did not distinguish between
various forms of intrastate noncommercial cultivation, possession,
and use of marijuana. See 21 U. S. C. §§841(a)(1), 844(a).
Today’s decision suggests that the federal regulation of local
activity is immune to Commerce Clause challenge because Congress
chose to act with an ambitious, all-encompassing statute, rather
than piecemeal. In my view, allowing Congress to set the terms of
the constitutional debate in this way, i.e. , by packaging
regulation of local activity in broader schemes, is tantamount to
removing meaningful limits on the Commerce Clause.

															   The Court’s principal means of
distinguishing Lopez from this case is to observe that the
Gun-Free School Zones Act of 1990 was a “brief, single-subject
statute,” ante , at 20, see also ante, at 19,
whereas the CSA is “a lengthy and detailed statute creating a
comprehensive framework for regulating the production,
distribution, and possession of five classes of ‘controlled
substances,’ ” ibid . Thus, according to the Court, it
was possible in Lopez to evaluate in isolation the
constitutionality of criminalizing local activity (there gun
possession in school zones), whereas the local activity that the
CSA targets (in this case cultivation and possession of marijuana
for personal medicinal use) cannot be separated from the general
drug control scheme of which it is a part.

															   Today’s decision allows Congress to regulate
intrastate activity without check, so long as there is some
implication by legislative design that regulating intrastate
activity is essential (and the Court appears to equate “essential”
with “necessary”) to the interstate regulatory scheme. Seizing upon
our language in Lopez that the statute prohibiting gun
possession in school zones was “not an essential part of a larger
regulation of economic activity, in which the regulatory scheme
could be undercut unless the intrastate activity were regulated,”
514 U. S., at 561, the Court appears to reason that the placement
of local activity in a comprehensive scheme confirms that it is
essential to that scheme. Ante , at 21–22. If the Court is
right, then Lopez stands for nothing more than a drafting
guide: Congress should have described the relevant crime as
“transfer or possession of a firearm anywhere in the nation”—thus
including commercial and noncommercial activity, and clearly
encompassing some activity with assuredly substantial effect on
interstate commerce. Had it done so, the majority hints, we would
have sustained its authority to regulate possession of firearms in
school zones. Furthermore, today’s decision suggests we would
readily sustain a congressional decision to attach the regulation
of intrastate activity to a pre-existing comprehensive (or even
not-so-comprehensive) scheme. If so, the Court invites increased
federal regulation of local activity even if, as it suggests,
Congress would not enact a new interstate scheme
exclusively for the sake of reaching intrastate activity, see ante , at 22, n. 33; ante , at 6 (Scalia, J.,
concurring in judgment).

															   I cannot agree that our decision in Lopez contemplated such evasive or overbroad legislative
strategies with approval. Until today, such arguments have been
made only in dissent. See Morrison , 529 U. S., at 657
(Breyer, J., dissenting) (given that Congress can regulate
“ ‘an essential part of a larger regulation of economic
activity,’ ” “can Congress save the present law by including
it, or much of it, in a broader ‘Safe Transport’ or ‘Worker Safety’
act?”). Lopez and Morrison did not indicate that
the constitutionality of federal regulation depends on superficial
and formalistic distinctions. Likewise I did not understand our
discussion of the role of courts in enforcing outer limits of the
Commerce Clause for the sake of maintaining the federalist balance
our Constitution requires, see Lopez , 514 U. S., at 557; id. , at 578 (Kennedy, J., concurring), as a signal to
Congress to enact legislation that is more extensive and more
intrusive into the domain of state power. If the Court always
defers to Congress as it does today, little may be left to the
notion of enumerated powers.

															   The hard work for courts, then, is to identify
objective markers for confining the analysis in Commerce Clause
cases. Here, respondents challenge the constitutionality of the CSA
as applied to them and those similarly situated. I agree with the
Court that we must look beyond respondents’ own activities.
Otherwise, individual litigants could always exempt themselves from
Commerce Clause regulation merely by pointing to the obvious—that
their personal activities do not have a substantial effect on
interstate commerce. See Maryland v. Wirtz , 392 U. S. 183 ,
193 (1968); Wickard , 317 U. S., at 127–128. The task is to
identify a mode of analysis that allows Congress to regulate more
than nothing (by declining to reduce each case to its litigants)
and less than everything (by declining to let Congress set the
terms of analysis). The analysis may not be the same in every case,
for it depends on the regulatory scheme at issue and the federalism
concerns implicated. See generally Lopez , 514 U. S., at
567; id ., at 579 (Kennedy, J., concurring).

															   A number of objective markers are available to
confine the scope of constitutional review here. Both federal and
state legislation—including the CSA itself, the California
Compassionate Use Act, and other state medical marijuana
legislation—recognize that medical and nonmedical ( i.e. ,
recreational) uses of drugs are realistically distinct and can be
segregated, and regulate them differently. See 21 U. S. C.
§812; Cal. Health & Safety Code Ann. §11362.5 (West Supp.
2005); ante , at 1 (opinion of the Court). Respondents
challenge only the application of the CSA to medicinal use of
marijuana. Cf. United States v. Raines , 362 U. S. 17 , 20–22
(1960) (describing our preference for as-applied rather than facial
challenges). Moreover, because fundamental structural concerns
about dual sovereignty animate our Commerce Clause cases, it is
relevant that this case involves the interplay of federal and state
regulation in areas of criminal law and social policy, where
“States lay claim by right of history and expertise.” Lopez , supra , at 583 (Kennedy, J., concurring);
see also Morrison , supra , at 617–619; Lopez , supra , at 580 (Kennedy, J., concurring)
(“The statute before us upsets the federal balance to a degree that
renders it an unconstitutional assertion of the commerce power, and
our intervention is required”); cf. Garcia , 469 U. S., at
586 (O’Connor, J., dissenting) (“[S]tate autonomy is a relevant
factor in assessing the means by which Congress exercises its
powers” under the Commerce Clause). California, like other States,
has drawn on its reserved powers to distinguish the regulation of
medicinal marijuana. To ascertain whether Congress’ encroachment is
constitutionally justified in this case, then, I would focus here
on the personal cultivation, possession, and use of marijuana for
medicinal purposes.

															B

															   Having thus defined the relevant
conduct, we must determine whether, under our precedents, the
conduct is economic and, in the aggregate, substantially affects
interstate commerce. Even if intrastate cultivation and possession
of marijuana for one’s own medicinal use can properly be
characterized as economic, and I question whether it can, it has
not been shown that such activity substantially affects interstate
commerce. Similarly, it is neither self-evident nor demonstrated
that regulating such activity is necessary to the interstate drug
control scheme.

															   The Court’s definition of
economic activity is breathtaking. It defines as economic any
activity involving the production, distribution, and consumption of
commodities. And it appears to reason that when an interstate
market for a commodity exists, regulating the intrastate
manufacture or possession of that commodity is constitutional
either because that intrastate activity is itself economic, or
because regulating it is a rational part of regulating its market.
Putting to one side the problem endemic to the Court’s opinion—the
shift in focus from the activity at issue in this case to the
entirety of what the CSA regulates, see Lopez , supra , at 565 (“depending on the level of generality, any
activity can be looked upon as commercial”)—the Court’s definition
of economic activity for purposes of Commerce Clause jurisprudence
threatens to sweep all of productive human activity into federal
regulatory reach.

															   The Court uses a dictionary definition of
economics to skirt the real problem of drawing a meaningful line
between “what is national and what is local,” Jones &
Laughlin Steel , 301 U. S., at 37. It will not do to say that
Congress may regulate noncommercial activity simply because it may
have an effect on the demand for commercial goods, or because the
noncommercial endeavor can, in some sense, substitute for
commercial activity. Most commercial goods or services have some
sort of privately producible analogue. Home care substitutes for
daycare. Charades games substitute for movie tickets. Backyard or
windowsill gardening substitutes for going to the supermarket. To
draw the line wherever private activity affects the demand for
market goods is to draw no line at all, and to declare everything
economic. We have already rejected the result that would follow—a
federal police power. Lopez , supra , at 564.

															   In Lopez and Morrison , we
suggested that economic activity usually relates directly to
commercial activity. See Morrison , 529 U. S., at 611,
n. 4 (intrastate activities that have been within Congress’
power to regulate have been “of an apparent commercial character”); Lopez , 514 U. S., at 561 (distinguishing the Gun-Free
School Zones Act of 1990 from “activities that arise out of or are
connected with a commercial transaction”). The homegrown
cultivation and personal possession and use of marijuana for
medicinal purposes has no apparent commercial character. Everyone
agrees that the marijuana at issue in this case was never in the
stream of commerce, and neither were the supplies for growing it.
(Marijuana is highly unusual among the substances subject to the
CSA in that it can be cultivated without any materials that have
traveled in interstate commerce.) Lopez makes clear that
possession is not itself commercial activity. Ibid . And
respondents have not come into possession by means of any
commercial transaction; they have simply grown, in their own homes,
marijuana for their own use, without acquiring, buying, selling, or
bartering a thing of value. Cf. id., at 583 (Kennedy, J.,
concurring) (“The statute now before us forecloses the States from
experimenting … and it does so by regulating an activity beyond the
realm of commerce in the ordinary and usual sense of that
term”).

															   The Court suggests that Wickard ,
which we have identified as “perhaps the most far reaching example
of Commerce Clause authority over intrastate activity,” Lopez,
supra, at 560, established federal regulatory power over any
home consumption of a commodity for which a national market exists.
I disagree. Wickard involved a challenge to the
Agricultural Adjustment Act of 1938 (AAA), which directed the
Secretary of Agriculture to set national quotas on wheat
production, and penalties for excess production. 317 U. S., at
115–116. The AAA itself confirmed that Congress made an explicit
choice not to reach—and thus the Court could not possibly have
approved of federal control over—small-scale, noncommercial wheat
farming. In contrast to the CSA’s limitless assertion of power,
Congress provided an exemption within the AAA for small producers.
When Filburn planted the wheat at issue in Wickard , the
statute exempted plantings less than 200 bushels (about six tons),
and when he harvested his wheat it exempted plantings less than six
acres. Id ., at 130, n. 30. Wickard, then,
did not extend Commerce Clause authority to something as modest as
the home cook’s herb garden. This is not to say that Congress may
never regulate small quantities of commodities possessed or
produced for personal use, or to deny that it sometimes needs to
enact a zero tolerance regime for such commodities. It is merely to
say that Wickard did not hold or imply that small-scale
production of commodities is always economic, and automatically
within Congress’ reach.

															   Even assuming that economic activity is at
issue in this case, the Government has made no showing in fact that
the possession and use of homegrown marijuana for medical purposes,
in California or elsewhere, has a substantial effect on interstate
commerce. Similarly, the Government has not shown that regulating
such activity is necessary to an interstate regulatory scheme.
Whatever the specific theory of “substantial effects” at issue
( i.e. , whether the activity substantially affects
interstate commerce, whether its regulation is necessary to an
interstate regulatory scheme, or both), a concern for dual
sovereignty requires that Congress’ excursion into the traditional
domain of States be justified.

															   That is why characterizing this as a case
about the Necessary and Proper Clause does not change the analysis
significantly. Congress must exercise its authority under the
Necessary and Proper Clause in a manner consistent with basic
constitutional principles. Garcia , 469 U. S., at 585
(O’Connor, J., dissenting) (“It is not enough that the ‘end be
legitimate’; the means to that end chosen by Congress must not
contravene the spirit of the Constitution”). As Justice Scalia
recognizes, see ante , at 7 (opinion concurring in
judgment), Congress cannot use its authority under the Clause to
contravene the principle of state sovereignty embodied in the Tenth
Amendment. Ibid . Likewise, that authority must be used in
a manner consistent with the notion of enumerated powers—a
structural principle that is as much part of the Constitution as
the Tenth Amendment’s explicit textual command. Accordingly,
something more than mere assertion is required when Congress
purports to have power over local activity whose connection to an
intrastate market is not self-evident. Otherwise, the Necessary and
Proper Clause will always be a back door for unconstitutional
federal regulation. Cf. Printz v. United States , 521 U. S. 898 ,
923 (1997) (the Necessary and Proper Clause is “the last, best hope
of those who defend ultra vires congressional action”). Indeed, if
it were enough in “substantial effects” cases for the Court to
supply conceivable justifications for intrastate regulation related
to an interstate market, then we could have surmised in Lopez that guns in school zones are “never more than an
instant from the interstate market” in guns already subject to
extensive federal regulation, ante , at 8 (Scalia, J.,
concurring in judgment), recast Lopez as a Necessary and
Proper Clause case, and thereby upheld the Gun-Free School Zones
Act of 1990. (According to the Court’s and the concurrence’s logic,
for example, the Lopez court should have reasoned that the
prohibition on gun possession in school zones could be an
appropriate means of effectuating a related prohibition on
“sell[ing]” or “deliver[ing]” firearms or ammunition to “any
individual who the licensee knows or has reasonable cause to
believe is less than eighteen years of age.” 18 U. S. C.
§922(b)(1) (1988 ed., Supp. II).)

															   There is simply no evidence that homegrown
medicinal marijuana users constitute, in the aggregate, a sizable
enough class to have a discernable, let alone substantial, impact
on the national illicit drug market—or otherwise to threaten the
CSA regime. Explicit evidence is helpful when substantial effect is
not “visible to the naked eye.” See Lopez , 514 U. S., at
563. And here, in part because common sense suggests that medical
marijuana users may be limited in number and that California’s
Compassionate Use Act and similar state legislation may well
isolate activities relating to medicinal marijuana from the illicit
market, the effect of those activities on interstate drug traffic
is not self-evidently substantial.

															   In this regard, again, this case is readily
distinguishable from Wickard . To decide whether the
Secretary could regulate local wheat farming, the Court looked to
“the actual effects of the activity in question upon interstate
commerce.” 317 U. S., at 120. Critically, the Court was able to
consider “actual effects” because the parties had “stipulated a
summary of the economics of the wheat industry.” Id ., at
125. After reviewing in detail the picture of the industry provided
in that summary, the Court explained that consumption of homegrown
wheat was the most variable factor in the size of the national
wheat crop, and that on-site consumption could have the effect of
varying the amount of wheat sent to market by as much as 20
percent. Id ., at 127. With real numbers at hand, the Wickard Court could easily conclude that “a factor of such
volume and variability as home-consumed wheat would have a
substantial influence on price and market conditions” nationwide. Id ., at 128; see also id ., at 128–129 (“This
record leaves us in no doubt” about substantial effects).

															   The Court recognizes that “the record in the Wickard case itself established the causal connection
between the production for local use and the national market” and
argues that “we have before us findings by Congress to the same
effect .” Ante , at 17 (emphasis added). The Court
refers to a series of declarations in the introduction to the CSA
saying that (1) local distribution and possession of controlled
substances causes “swelling” in interstate traffic; (2) local
production and distribution cannot be distinguished from interstate
production and distribution; (3) federal control over intrastate
incidents “is essential to effective control” over interstate drug
trafficking. 21 U. S. C. §§801(1)–(6). These bare declarations
cannot be compared to the record before the Court in Wickard .

															   They amount to nothing more than a legislative
insistence that the regulation of controlled substances must be
absolute. They are asserted without any supporting
evidence—descriptive, statistical, or otherwise. “[S]imply because
Congress may conclude a particular activity substantially affects
interstate commerce does not necessarily make it so.” Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc. , 452 U. S. 264 , 311
(1981) (Rehnquist, J., concurring in judgment). Indeed, if
declarations like these suffice to justify federal regulation, and
if the Court today is right about what passes rationality review
before us, then our decision in Morrison should have come
out the other way. In that case, Congress had supplied numerous
findings regarding the impact gender-motivated violence had on the
national economy. 529 U. S., at 614; id ., at 628–636
(Souter, J., dissenting) (chronicling findings). But, recognizing
that “ ‘ “[w]hether particular operations affect
interstate commerce sufficiently to come under the constitutional
power of Congress to regulate them is ultimately a judicial rather
than a legislative question,” ’ ” we found Congress’
detailed findings inadequate. Id., at 614 (quoting Lopez, supra, at 557, n. 2, in turn quoting Heart
of Atlanta Motel, Inc. v. United States , 379 U. S. 241 , 273
(1964) (Black, J., concurring)). If, as the Court claims, today’s
decision does not break with precedent, how can it be that
voluminous findings, documenting extensive hearings about the
specific topic of violence against women, did not pass
constitutional muster in Morrison , while the CSA’s
abstract, unsubstantiated, generalized findings about controlled
substances do?

															   In particular, the CSA’s introductory
declarations are too vague and unspecific to demonstrate that the
federal statutory scheme will be undermined if Congress cannot
exert power over individuals like respondents. The declarations are
not even specific to marijuana. (Facts about substantial effects
may be developed in litigation to compensate for the inadequacy of
Congress’ findings; in part because this case comes to us from the
grant of a preliminary injunction, there has been no such
development.) Because here California, like other States, has
carved out a limited class of activity for distinct regulation, the
inadequacy of the CSA’s findings is especially glaring. The
California Compassionate Use Act exempts from other state drug laws
patients and their caregivers “who posses[s] or cultivat[e]
marijuana for the personal medical purposes of the patient
upon the written or oral recommendation of a physician” to treat a
list of serious medical conditions. Cal. Health & Safety Code
Ann. §§11362.5(d), 11362.7(h) (West Supp. 2005) (emphasis added).
Compare ibid . with, e.g. , §11357(b) (West 1991)
(criminalizing marijuana possession in excess of 28.5 grams);
§11358 (criminalizing marijuana cultivation). The Act specifies
that it should not be construed to supersede legislation
prohibiting persons from engaging in acts dangerous to others, or
to condone the diversion of marijuana for nonmedical purposes.
§11362.5(b)(2) (West Supp. 2005). To promote the Act’s operation
and to facilitate law enforcement, California recently enacted an
identification card system for qualified patients.
§§11362.7–11362.83. We generally assume States enforce their laws,
see Riley v. National Federation of Blind of
N. C., Inc., 487 U. S. 781 , 795
(1988), and have no reason to think otherwise here.

															   The Government has not overcome empirical
doubt that the number of Californians engaged in personal
cultivation, possession, and use of medical marijuana, or the
amount of marijuana they produce, is enough to threaten the federal
regime. Nor has it shown that Compassionate Use Act marijuana users
have been or are realistically likely to be responsible for the
drug’s seeping into the market in a significant way. The Government
does cite one estimate that there were over 100,000 Compassionate
Use Act users in California in 2004, Reply Brief for Petitioners
16, but does not explain, in terms of proportions, what their
presence means for the national illicit drug market. See generally Wirtz , 392 U. S., at 196, n. 27 (Congress cannot use
“a relatively trivial impact on commerce as an excuse for broad
general regulation of state or private activities”); cf. General
Accounting Office, Marijuana: Early Experience with Four States’
Laws That Allow Use for Medical Purposes 21–23 (Rep. No. 03–189,
Nov. 2002), http://www.gao.gov/new.items/d03189.pdf (as visited
June 3, 2005 and available in Clerk of Court’s case file) (in four
California counties before the identification card system was
enacted, voluntarily registered medical marijuana patients were
less than 0.5 percent of the population; in Alaska, Hawaii, and
Oregon, statewide medical marijuana registrants represented less
than 0.05 percent of the States’ populations). It also provides
anecdotal evidence about the CSA’s enforcement. See Reply Brief for
Petitioners 17–18. The Court also offers some arguments about the
effect of the Compassionate Use Act on the national market. It says
that the California statute might be vulnerable to exploitation by
unscrupulous physicians, that Compassionate Use Act patients may
overproduce, and that the history of the narcotics trade shows the
difficulty of cordoning off any drug use from the rest of the
market. These arguments are plausible; if borne out in fact they
could justify prosecuting Compassionate Use Act patients under the
federal CSA. But, without substantiation, they add little to the
CSA’s conclusory statements about diversion, essentiality, and
market effect. Piling assertion upon assertion does not, in my
view, satisfy the substantiality test of Lopez and Morrison .

															III

															   We would do well to recall how
James Madison, the father of the Constitution, described our system
of joint sovereignty to the people of New York: “The powers
delegated by the proposed constitution to the federal government
are few and defined. Those which are to remain in the State
governments are numerous and indefinite… . The powers reserved
to the several States will extend to all the objects which, in the
ordinary course of affairs, concern the lives, liberties, and
properties of the people, and the internal order, improvement, and
prosperity of the State.” The Federalist No. 45, pp. 292–293 (C.
Rossiter ed. 1961). Relying on Congress’
abstract assertions, the Court has endorsed making it a federal
crime to grow small amounts of marijuana in one’s own home for
one’s own medicinal use. This overreaching stifles an express
choice by some States, concerned for the lives and liberties of
their people, to regulate medical marijuana differently. If I were
a California citizen, I would not have voted for the medical
marijuana ballot initiative; if I were a California legislator I
would not have supported the Compassionate Use Act. But whatever
the wisdom of California’s experiment with medical marijuana, the
federalism principles that have driven our Commerce Clause cases
require that room for experiment be protected in this case. For
these reasons I dissent. THOMAS, J., DISSENTING GONZALES V. RAICH 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1454 ALBERTO R. GONZALES, ATTORNEY GENERAL, et al.,
PETITIONERS v. ANGEL McCLARY RAICH et al.

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[June 6, 2005]

															   Justice Thomas, dissenting.

															   Respondents Diane Monson and
Angel Raich use marijuana that has never been bought or sold, that
has never crossed state lines, and that has had no demonstrable
effect on the national market for marijuana. If Congress can
regulate this under the Commerce Clause, then it can regulate
virtually anything—and the Federal Government is no longer one of
limited and enumerated powers.

															I

															   Respondents’ local cultivation
and consumption of marijuana is not “Commerce … among the several
States.” U. S. Const., Art. I, §8, cl. 3. By holding that
Congress may regulate activity that is neither interstate nor
commerce under the Interstate Commerce Clause, the Court abandons
any attempt to enforce the Constitution’s limits on federal power.
The majority supports this conclusion by invoking, without
explanation, the Necessary and Proper Clause. Regulating
respondents’ conduct, however, is not “necessary and proper for
carrying into Execution” Congress’ restrictions on the interstate
drug trade. Art. I, §8, cl. 18. Thus, neither the
Commerce Clause nor the Necessary and Proper Clause grants Congress
the power to regulate respondents’ conduct.

															A

															   As I explained at length in United States v. Lopez, 514 U. S. 549 (1995), the Commerce
Clause empowers Congress to regulate the buying and selling of
goods and services trafficked across state lines. Id. , at
586–589 (concurring opinion). The Clause’s text, structure, and
history all indicate that, at the time of the founding, the term
“ ‘commerce’ consisted of selling, buying, and bartering, as
well as transporting for these purposes.” Id. , at 585
(Thomas, J., concurring). Commerce, or trade, stood in contrast to
productive activities like manufacturing and agriculture. Id. , at 586–587 (Thomas, J., concurring). Throughout
founding-era dictionaries, Madison’s notes from the Constitutional
Convention, The Federalist Papers, and the ratification debates,
the term “commerce” is consistently used to mean trade or
exchange—not all economic or gainful activity that has some
attenuated connection to trade or exchange. Ibid. (Thomas,
J., concurring); Barnett, The Original Meaning of the Commerce
Clause, 68 U. Chi. L. Rev. 101, 112–125 (2001). The term “commerce”
commonly meant trade or exchange (and shipping for these purposes)
not simply to those involved in the drafting and ratification
processes, but also to the general public. Barnett, New Evidence of
the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847,
857–862 (2003).

															   Even the majority does not argue
that respondents’ conduct is itself “Commerce among the several
States.” Art. I, §8, cl. 3. Ante , at 19. Monson
and Raich neither buy nor sell the marijuana that they consume.
They cultivate their cannabis entirely in the State of
California—it never crosses state lines, much less as part of a
commercial transaction. Certainly no evidence from the founding
suggests that “commerce” included the mere possession of a good or
some purely personal activity that did not involve trade or
exchange for value. In the early days of the Republic, it would
have been unthinkable that Congress could prohibit the local
cultivation, possession, and consumption of marijuana.

															   On this traditional understanding of
“commerce,” the Controlled Substances Act (CSA), 21 U. S. C.
§801 et seq. , regulates a great deal of marijuana
trafficking that is interstate and commercial in character. The CSA
does not, however, criminalize only the interstate buying and
selling of marijuana. Instead, it bans the entire market—intrastate
or interstate, noncommercial or commercial—for marijuana.
Respondents are correct that the CSA exceeds Congress’ commerce
power as applied to their conduct, which is purely intrastate and
noncommercial.

															B

															   More difficult, however, is
whether the CSA is a valid exercise of Congress’ power to enact
laws that are “necessary and proper for carrying into Execution”
its power to regulate interstate commerce. Art. I, §8,
cl. 18. The Necessary and Proper Clause is not a warrant to
Congress to enact any law that bears some conceivable connection to
the exercise of an enumerated power.[ Footnote 1 ] Nor is it, however, a command to Congress to
enact only laws that are absolutely indispensable to the exercise
of an enumerated power.[ Footnote
2 ]

															   In McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court, speaking
through Chief Justice Marshall, set forth a test for determining
when an Act of Congress is permissible under the Necessary and
Proper Clause:

															“Let the end be legitimate, let it be within the
scope of the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited,
but consist with the letter and spirit of the constitution, are
constitutional.” Id. , at 421.

															To act under the Necessary and Proper Clause, then,
Congress must select a means that is “appropriate” and “plainly
adapted” to executing an enumerated power; the means cannot be
otherwise “prohibited” by the Constitution; and the means cannot be
inconsistent with “the letter and spirit of the [C]onstitution.” Ibid.; D. Currie, The Constitution in the Supreme Court:
The First Hundred Years 1789–1888, pp. 163–164 (1985). The CSA, as
applied to respondents’ conduct, is not a valid exercise of
Congress’ power under the Necessary and Proper Clause.

															1

															   Congress has exercised its power
over interstate commerce to criminalize trafficking in marijuana
across state lines. The Government contends that banning Monson and
Raich’s intrastate drug activity is “necessary and proper for
carrying into Execution” its regulation of interstate drug
trafficking. Art. I, §8, cl. 18. See 21 U. S. C.
§801(6). However, in order to be “necessary,” the intrastate ban
must be more than “a reasonable means [of] effectuat[ing] the
regulation of interstate commerce.” Brief for Petitioners 14; see ante , at 19 (majority opinion) (employing rational-basis
review). It must be “plainly adapted” to regulating interstate
marijuana trafficking—in other words, there must be an “obvious,
simple, and direct relation” between the intrastate ban and the
regulation of interstate commerce. Sabri v. United
States, 541 U.
S. 600 , 613 (2004) (Thomas, J., concurring in judgment); see
also United States v. Dewitt, 9 Wall. 41, 44
(1870) (finding ban on intrastate sale of lighting oils not
“appropriate and plainly adapted means for carrying into execution”
Congress’ taxing power).

															   On its face, a ban on the
intrastate cultivation, possession and distribution of marijuana
may be plainly adapted to stopping the interstate flow of
marijuana. Unregulated local growers and users could swell both the
supply and the demand sides of the interstate marijuana market,
making the market more difficult to regulate. Ante , at
9–10, 19 (majority opinion). But respondents do not challenge the
CSA on its face. Instead, they challenge it as applied to their
conduct. The question is thus whether the intrastate ban is
“necessary and proper” as applied to medical marijuana users like
respondents.[ Footnote 3 ]

															   Respondents are not regulable simply because
they belong to a large class (local growers and users of marijuana)
that Congress might need to reach, if they also belong to a
distinct and separable subclass (local growers and users of
state-authorized, medical marijuana) that does not undermine the
CSA’s interstate ban. Ante , at 6–7 (O’Connor, J.,
dissenting). The Court of Appeals found that respondents’ “limited
use is distinct from the broader illicit drug market,” because
“th[eir] medicinal marijuana … is not intended for, nor does it
enter, the stream of commerce.” Raich v. Ashcroft , 352 F. 3d 1222, 1228 (CA9 2003). If that is
generally true of individuals who grow and use marijuana for
medical purposes under state law, then even assuming Congress has
“obvious” and “plain” reasons why regulating intrastate cultivation
and possession is necessary to regulating the interstate drug
trade, none of those reasons applies to medical marijuana patients
like Monson and Raich.

															   California’s Compassionate Use Act sets
respondents’ conduct apart from other intrastate producers and
users of marijuana. The Act channels marijuana use to “seriously
ill Californians,” Cal. Health & Safety Code Ann.
§11362.5(b)(1)(A) (West Supp. 2005), and prohibits “the diversion
of marijuana for nonmedical purposes,” §11362.5(b)(2).[ Footnote 4 ] California strictly controls the
cultivation and possession of marijuana for medical purposes. To be
eligible for its program, California requires that a patient have
an illness that cannabis can relieve, such as cancer, AIDS, or
arthritis, §11362.5(b)(1)(A), and that he obtain a physician’s
recommendation or approval, §11362.5(d). Qualified patients must
provide personal and medical information to obtain medical
identification cards, and there is a statewide registry of
cardholders. §§11362.715–.76. Moreover, the Medical Board of
California has issued guidelines for physicians’ cannabis
recommendations, and it sanctions physicians who do not comply with
the guidelines. See, e.g. , People v. Spark , 121 Cal. App. 4th 259, 263, 16 Cal. Rptr. 3d 840,
843 (2004).

															   This class of intrastate users is therefore
distinguishable from others. We normally presume that States
enforce their own laws, Riley v. National Federation
of Blind of N. C., Inc., 487 U. S. 781 , 795
(1988), and there is no reason to depart from that presumption
here: Nothing suggests that California’s controls are ineffective.
The scant evidence that exists suggests that few people—the vast
majority of whom are aged 40 or older—register to use medical
marijuana. General Accounting Office, Marijuana: Early Experiences
with Four States’ Laws That Allow Use for Medical Purposes 22–23
(Rep. No. 03–189, Nov. 2002),
http://www.gao.gov/new.items/d01389.pdf (all Internet materials as
visited on June 3, 2005, and available in Clerk of Court’s case
file). In part because of the low incidence of medical marijuana
use, many law enforcement officials report that the introduction of
medical marijuana laws has not affected their law enforcement
efforts. Id. , at 32.

															   These controls belie the Government’s
assertion that placing medical marijuana outside the CSA’s reach
“would prevent effective enforcement of the interstate ban on drug
trafficking.” Brief for Petitioners 33. Enforcement of the CSA can
continue as it did prior to the Compassionate Use Act. Only now, a
qualified patient could avoid arrest or prosecution by presenting
his identification card to law enforcement officers. In the event
that a qualified patient is arrested for possession or his cannabis
is seized, he could seek to prove as an affirmative defense that,
in conformity with state law, he possessed or cultivated small
quantities of marijuana intrastate solely for personal medical use. People v. Mower , 28 Cal. 4th 457, 469–470, 49
P. 3d 1067, 1073–1075 (2002); People v. Trippet , 56 Cal. App. 4th 1532, 1549 (1997). Moreover,
under the CSA, certain drugs that present a high risk of abuse and
addiction but that nevertheless have an accepted medical use—drugs
like morphine and amphetamines—are available by prescription. 21 U.
S. C. §§812(b)(2)(A)–(B); 21 CFR §1308.12 (2004). No one
argues that permitting use of these drugs under medical supervision
has undermined the CSA’s restrictions.

															   But even assuming that States’ controls allow
some seepage of medical marijuana into the illicit drug market,
there is a multibillion-dollar interstate market for marijuana.
Executive Office of the President, Office of Nat. Drug Control
Policy, Marijuana Fact Sheet 5 (Feb. 2004),
http://www.whitehousedrugpolicy.gov/publications/factsht/marijuana/.
It is difficult to see how this vast market could be affected by
diverted medical cannabis, let alone in a way that makes regulating
intrastate medical marijuana obviously essential to controlling the
interstate drug market.

															   To be sure, Congress declared that state
policy would disrupt federal law enforcement. It believed the
across-the-board ban essential to policing interstate drug
trafficking. 21 U. S. C. §801(6). But as Justice O’Connor
points out, Congress presented no evidence in support of its
conclusions, which are not so much findings of fact as assertions
of power. Ante , at 13–14 (dissenting opinion). Congress
cannot define the scope of its own power merely by declaring the
necessity of its enactments.

															   In sum, neither in enacting the CSA nor in
defending its application to respondents has the Government offered
any obvious reason why banning medical marijuana use is necessary
to stem the tide of interstate drug trafficking. Congress’ goal of
curtailing the interstate drug trade would not plainly be thwarted
if it could not apply the CSA to patients like Monson and Raich.
That is, unless Congress’ aim is really to exercise police power of
the sort reserved to the States in order to eliminate even the
intrastate possession and use of marijuana.

															2

															   Even assuming the CSA’s ban on
locally cultivated and consumed marijuana is “necessary,” that does
not mean it is also “proper.” The means selected by Congress to
regulate interstate commerce cannot be “prohibited” by, or
inconsistent with the “letter and spirit” of, the Constitution. McCulloch , 4 Wheat., at 421.

															   In Lopez , I argued that
allowing Congress to regulate intrastate, noncommercial activity
under the Commerce Clause would confer on Congress a general
“police power” over the Nation. 514 U. S., at 584, 600 (concurring
opinion). This is no less the case if Congress ties its power to
the Necessary and Proper Clause rather than the Commerce Clause.
When agents from the Drug Enforcement Administration raided
Monson’s home, they seized six cannabis plants. If the Federal
Government can regulate growing a half-dozen cannabis plants for
personal consumption (not because it is interstate commerce, but
because it is inextricably bound up with interstate commerce), then
Congress’ Article I powers—as expanded by the Necessary and Proper
Clause—have no meaningful limits. Whether Congress aims at the
possession of drugs, guns, or any number of other items, it may
continue to “appropria[te] state police powers under the guise of
regulating commerce.” United States v. Morrison, 529 U. S. 598 , 627 (2000) (Thomas, J.,
concurring).

															   Even if Congress may regulate purely
intrastate activity when essential to exercising some enumerated
power, see Dewitt, 9 Wall., at 44; but see Barnett, The
Original Meaning of the Necessary and Proper Clause, 6 U. Pa.
J. Const. L. 183, 186 (2003) (detailing statements by Founders that
the Necessary and Proper Clause was not intended to expand the
scope of Congress’ enumerated powers), Congress may not use its
incidental authority to subvert basic principles of federalism and
dual sovereignty. Printz v. United States, 521 U. S. 898 ,
923–924 (1997); Alden v. Maine, 527 U. S. 706 , 732–733
(1999); Garcia v. San Antonio Metropolitan Transit
Authority, 469
U. S. 528 , 585 (1985) (O’Connor, J., dissenting); The
Federalist No. 33, pp. 204–205 (J. Cooke ed. 1961) (A. Hamilton)
(hereinafter The Federalist).

															   Here, Congress has encroached on States’
traditional police powers to define the criminal law and to protect
the health, safety, and welfare of their citizens.[ Footnote 5 ] Brecht v. Abrahamson, 507 U. S. 619 , 635
(1993); Hillsborough County v. Automated Medical
Laboratories, Inc., 471 U. S. 707 , 719
(1985). Further, the Government’s rationale—that it may regulate
the production or possession of any commodity for which there is an
interstate market—threatens to remove the remaining vestiges of
States’ traditional police powers. See Brief for Petitioners 21–22;
cf. Ehrlich, The Increasing Federalization of Crime, 32 Ariz. St.
L. J. 825, 826, 841 (2000) (describing both the relative
recency of a large percentage of federal crimes and the lack of a
relationship between some of these crimes and interstate commerce).
This would convert the Necessary and Proper Clause into precisely
what Chief Justice Marshall did not envision, a “pretext … for the
accomplishment of objects not intrusted to the government.” McCulloch , supra , at 423.

															II

															   The majority advances three
reasons why the CSA is a legitimate exercise of Congress’ authority
under the Commerce Clause: First, respondents’ conduct, taken in
the aggregate, may substantially affect interstate commerce, ante , at 19; second, regulation of respondents’ conduct is
essential to regulating the interstate marijuana market, ante , at 21–22; and, third, regulation of respondents’
conduct is incidental to regulating the interstate marijuana
market, ante , at 19–20. Justice O’Connor explains why the
majority’s reasons cannot be reconciled with our recent Commerce
Clause jurisprudence. The majority’s justifications, however,
suffer from even more fundamental flaws.

															A

															   The majority holds that Congress
may regulate intrastate cultivation and possession of medical
marijuana under the Commerce Clause, because such conduct arguably
has a substantial effect on interstate commerce. The majority’s
decision is further proof that the “substantial effects” test is a
“rootless and malleable standard” at odds with the constitutional
design. Morrison , supra , at 627 (Thomas, J.,
concurring).

															   The majority’s treatment of the
substantial effects test is rootless, because it is not tethered to
either the Commerce Clause or the Necessary and Proper Clause.
Under the Commerce Clause, Congress may regulate interstate
commerce, not activities that substantially affect interstate
commerce—any more than Congress may regulate activities that do not
fall within, but that affect, the subjects of its other Article I
powers. Lopez , supra, at 589 (Thomas, J.,
concurring). Whatever additional latitude the Necessary and Proper
Clause affords, supra , at 9–10, the question is whether
Congress’ legislation is essential to the regulation of interstate
commerce itself—not whether the legislation extends only to
economic activities that substantially affect interstate commerce. Supra , at 4; ante , at 5 (Scalia, J., concurring
in judgment).

															   The majority’s treatment of the substantial
effects test is malleable, because the majority expands the
relevant conduct. By defining the class at a high level of
generality (as the intrastate manufacture and possession of
marijuana), the majority overlooks that individuals authorized by
state law to manufacture and possess medical marijuana exert no
demonstrable effect on the interstate drug market. Supra ,
at 7–8. The majority ignores that whether a particular activity
substantially affects interstate commerce—and thus comes within
Congress’ reach on the majority’s approach—can turn on a number of
objective factors, like state action or features of the regulated
activity itself. Ante , at 6–7 (O’Connor, J., dissenting).
For instance, here, if California and other States are effectively
regulating medical marijuana users, then these users have little
effect on the interstate drug trade.[ Footnote 6 ]

															   The substantial effects test is easily
manipulated for another reason. This Court has never held that
Congress can regulate noneconomic activity that substantially
affects interstate commerce. Morrison , 529 U. S., at 613
(“[T]hus far in our Nation’s history our cases have upheld Commerce
Clause regulation of intrastate activity only where that activity
is economic in nature” (emphasis added)); Lopez , supra , at 560. To evade even that modest restriction on
federal power, the majority defines economic activity in the
broadest possible terms as the “ ‘the production,
distribution, and consumption of commodities.’ ”[ Footnote 7 ] Ante , at 23 (quoting
Webster’s Third New International Dictionary 720 (1966)
(hereinafter Webster’s 3d). This carves out a vast swath of
activities that are subject to federal regulation. See ante , at 8–9 (O’Connor, J., dissenting). If the majority
is to be taken seriously, the Federal Government may now regulate
quilting bees, clothes drives, and potluck suppers throughout the
50 States. This makes a mockery of Madison’s assurance to the
people of New York that the “powers delegated” to the Federal
Government are “few and defined,” while those of the States are
“numerous and indefinite.” The Federalist No. 45, at 313 (J.
Madison).

															   Moreover, even a Court interested more in the
modern than the original understanding of the Constitution ought to
resolve cases based on the meaning of words that are actually in
the document. Congress is authorized to regulate “Commerce,” and
respondents’ conduct does not qualify under any definition of that
term.[ Footnote 8 ] The
majority’s opinion only illustrates the steady drift away from the
text of the Commerce Clause. There is an inexorable expansion from
“ ‘commerce,’ ” ante , at 1, to “commercial” and
“economic” activity, ante , at 20, and finally to all
“production, distribution, and consumption” of goods or services
for which there is an “established … interstate market,” ante , at 23. Federal power expands, but never contracts,
with each new locution. The majority is not interpreting the
Commerce Clause, but rewriting it.

															   The majority’s rewriting of the Commerce
Clause seems to be rooted in the belief that, unless the Commerce
Clause covers the entire web of human activity, Congress will be
left powerless to regulate the national economy effectively. Ante , at 15–16; Lopez , 514 U. S., at 573–574
(Kennedy, J., concurring). The interconnectedness of economic
activity is not a modern phenomenon unfamiliar to the Framers. Id. , at 590–593 (Thomas, J., concurring); Letter from J.
Madison to S. Roane (Sept. 2, 1819), in 3 The Founders’
Constitution 259–260 (P. Kurland & R. Lerner eds. 1987).
Moreover, the Framers understood what the majority does not appear
to fully appreciate: There is a danger to concentrating too much,
as well as too little, power in the Federal Government. This Court
has carefully avoided stripping Congress of its ability to regulate inter state commerce, but it has casually allowed the
Federal Government to strip States of their ability to regulate intra state commerce—not to mention a host of local
activities, like mere drug possession, that are not commercial.

															   One searches the Court’s opinion in vain for
any hint of what aspect of American life is reserved to the States.
Yet this Court knows that “ ‘[t]he Constitution created a
Federal Government of limited powers.’ ” New York v. United States, 505 U. S. 144 , 155
(1992) (quoting Gregory v. Ashcroft, 501 U. S. 452 , 457
(1991)). That is why today’s decision will add no measure of
stability to our Commerce Clause jurisprudence: This Court is
willing neither to enforce limits on federal power, nor to declare
the Tenth Amendment a dead letter. If stability is possible, it is
only by discarding the stand-alone substantial effects test and
revisiting our definition of “Commerce among the several States.”
Congress may regulate interstate commerce—not things that affect
it, even when summed together, unless truly “necessary and proper”
to regulating interstate commerce.

															B

															   The majority also inconsistently
contends that regulating respondents’ conduct is both incidental
and essential to a comprehensive legislative scheme. Ante ,
at 19–20, 21–22. I have already explained why the CSA’s ban on
local activity is not essential. Supra , at 7–8. However,
the majority further claims that, because the CSA covers a great
deal of interstate commerce, it “is of no moment” if it also
“ensnares some purely intrastate activity.” Ante , at 19.
So long as Congress casts its net broadly over an interstate
market, according to the majority, it is free to regulate
interstate and intrastate activity alike. This cannot be justified
under either the Commerce Clause or the Necessary and Proper
Clause. If the activity is purely intrastate, then it may not be
regulated under the Commerce Clause. And if the regulation of the
intrastate activity is purely incidental, then it may not be
regulated under the Necessary and Proper Clause.

															   Nevertheless, the majority terms
this the “pivotal” distinction between the present case and Lopez and Morrison . Ante , at 20. In Lopez and Morrison , the parties asserted facial
challenges, claiming “that a particular statute or provision fell
outside Congress’ commerce power in its entirety.” Ante, at 20. Here, by contrast, respondents claim only that the CSA falls
outside Congress’ commerce power as applied to their individual
conduct. According to the majority, while courts may set aside
whole statutes or provisions, they may not “excise individual
applications of a concededly valid statutory scheme.” Ante , at 20–21 ; see also Perez v. United States, 402 U. S. 146 , 154
(1971); Maryland v. Wirtz, 392 U. S. 183 , 192–193
(1968).

															   It is true that if respondents’ conduct is
part of a “class of activities … and that class is within the reach
of federal power,” Perez , supra , at 154 (emphases
deleted), then respondents may not point to the de minimis effect of their own personal conduct on the interstate drug market, Wirtz , supra , at 196, n. 27. Ante , at 6
(O’Connor, J., dissenting). But that begs the question at issue:
whether respondents’ “class of activities” is “within the reach of
federal power,” which depends in turn on whether the class is
defined at a low or a high level of generality. Supra , at
5. If medical marijuana patients like Monson and Raich largely
stand outside the interstate drug market, then courts must excise
them from the CSA’s coverage. Congress expressly provided that if
“a provision [of the CSA] is held invalid in one of more of its applications , the provision shall remain in effect in all
its valid applications that are severable.” 21 U. S. C. §901
(emphasis added); see also United States v. Booker, 543 U. S. ___, ___ (2005) (slip op., at 9, and
n. 9) (Thomas, J., dissenting in part).

															   Even in the absence of an express severability
provision, it is implausible that this Court could set aside entire
portions of the United States Code as outside Congress’ power in Lopez and Morrison , but it cannot engage in the
more restrained practice of invalidating particular applications of
the CSA that are beyond Congress’ power. This Court has regularly
entertained as-applied challenges under constitutional provisions,
see United States v. Raines, 362 U. S. 17 , 20–21
(1960), including the Commerce Clause, see Katzenbach v. McClung, 379 U. S. 294 , 295
(1964); Heart of Atlanta Motel, Inc. v. United
States, 379 U.
S. 241 , 249 (1964); Wickard v. Filburn, 317 U. S. 111 ,
113–114 (1942). There is no reason why, when Congress exceeds the
scope of its commerce power, courts may not invalidate Congress’
overreaching on a case-by-case basis. The CSA undoubtedly regulates
a great deal of interstate commerce, but that is no license to
regulate conduct that is neither interstate nor commercial, however
minor or incidental.

															   If the majority is correct that Lopez and Morrison are distinct because they were facial
challenges to “particular statute[s] or provision[s],” ante , at 20, then congressional power turns on the manner
in which Congress packages legislation. Under the majority’s
reasoning, Congress could not enact—either as a single-subject
statute or as a separate provision in the CSA—a prohibition on the
intrastate possession or cultivation of marijuana. Nor could it
enact an intrastate ban simply to supplement existing drug
regulations. However, that same prohibition is perfectly
constitutional when integrated into a piece of legislation that
reaches other regulable conduct. Lopez , 514 U. S., at
600–601 (Thomas, J., concurring).

															   Finally, the majority’s view—that because some of the CSA’s applications are constitutional, they
must all be constitutional—undermines its reliance on the
substantial effects test. The intrastate conduct swept within a
general regulatory scheme may or may not have a substantial effect
on the relevant interstate market. “[O]ne always can draw
the circle broadly enough to cover an activity that, when taken in
isolation, would not have substantial effects on commerce.” Id. , at 600 (Thomas, J., concurring). The breadth of
legislation that Congress enacts says nothing about whether the
intrastate activity substantially affects interstate commerce, let
alone whether it is necessary to the scheme. Because medical
marijuana users in California and elsewhere are not placing
substantial amounts of cannabis into the stream of interstate
commerce, Congress may not regulate them under the substantial
effects test, no matter how broadly it drafts the CSA.

															***

															   The majority prevents States like
California from devising drug policies that they have concluded
provide much-needed respite to the seriously ill. It does so
without any serious inquiry into the necessity for federal
regulation or the propriety of “displac[ing] state regulation in
areas of traditional state concern,” id., at 583 (Kennedy,
J., concurring). The majority’s rush to embrace federal power “is
especially unfortunate given the importance of showing respect for
the sovereign States that comprise our Federal Union.” United
States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483 ,
502 (2001) (Stevens, J., concurring in judgment). Our federalist
system, properly understood, allows California and a growing number
of other States to decide for themselves how to safeguard the
health and welfare of their citizens. I would affirm the judgment
of the Court of Appeals. I respectfully dissent. Footnote 1 McCulloch v. Maryland, 4
Wheat. 316, 419–421 (1819); Madison, The Bank Bill, House of
Representatives (Feb. 2, 1791), in 3 The Founders’ Constitution 244
(P. Kurland & R. Lerner eds. 1987) (requiring “direct” rather
than “remote” means-end fit); Hamilton, Opinion on the
Constitutionality of the Bank (Feb. 23, 1791), in id. , at
248, 250 (requiring “obvious” means-end fit, where the end was
“clearly comprehended within any of the specified powers” of
Congress). Footnote 2 McCulloch , supra , at
413–415; D. Currie, The Constitution in the Supreme Court: The
First Hundred Years 1789–1888, p. 162 (1985). Footnote 3 Because respondents do not challenge on its
face the CSA’s ban on marijuana, 21 U. S. C. §§841(a)(1),
844(a), our adjudication of their as-applied challenge casts no
doubt on this Court’s practice in United States v. Lopez, 514 U. S. 549 (1995), and United
States v. Morrison, 529 U. S. 598 (2000). In those cases,
we held that Congress, in enacting the statutes at issue, had
exceeded its Article I powers. Footnote 4 Other States likewise prohibit diversion of
marijuana for nonmedical purposes. See, e.g. , Colo.
Const., Art. XVIII, §14(2)(d); Nev. Rev. Stat. §§453A.300(1)(e)–(f)
(2003); Ore. Rev. Stat. §§475.316(1)(c)–(d) (2003). Footnote 5 In fact, the Anti-Federalists objected that
the Necessary and Proper Clause would allow Congress, inter
alia , to “ constitute new Crimes , . . . and extend
[its] Power as far as [it] shall think proper; so that the State
Legislatures have no Security for the Powers now presumed to remain
to them; or the People for their Rights.” Mason, Objections to the
Constitution Formed by the Convention (1787), in 2 The Complete
Anti-Federalist 11, 12–13 (H. Storing ed. 1981) (emphasis added).
Hamilton responded that these objections were gross
“misrepresentation[s].” The Federalist No. 33, at 204. He termed
the Clause “perfectly harmless,” for it merely confirmed Congress’
implied authority to enact laws in exercising its enumerated
powers. Id. , at 205; see also Lopez, 514 U. S.,
at 597, n. 6 (Thomas, J., concurring) (discussing Congress’
limited ability to establish nationwide criminal prohibitions); Cohens v. Virginia, 6 Wheat. 264, 426–428 (1821)
(finding it “clear that [C]ongress cannot punish felonies
generally,” except in areas over which it possesses plenary power).
According to Hamilton, the Clause was needed only “to guard against
cavilling refinements” by those seeking to cripple federal power.
The Federalist No. 33, at 205; id. , No. 44, at 303–304 (J.
Madison). Footnote 6 Remarkably, the majority goes so far as to
declare this question irrelevant. It asserts that the CSA is
constitutional even if California’s current controls are effective,
because state action can neither expand nor contract Congress’
powers. Ante , at 27, n. 38. The majority’s assertion is
misleading. Regardless of state action, Congress has the power to
regulate intrastate economic activities that substantially affect
interstate commerce (on the majority’s view) or activities that are
necessary and proper to effectuating its commerce power (on my
view). But on either approach, whether an intrastate activity falls
within the scope of Congress’ powers turns on factors that the
majority is unwilling to confront. The majority apparently believes
that even if States prevented any medical marijuana from entering
the illicit drug market, and thus even if there were no need for
the CSA to govern medical marijuana users, we should uphold the CSA
under the Commerce Clause and the Necessary and
Proper Clause. Finally, to invoke the Supremacy Clause, as the
majority does, ibid. , is to beg the question. The CSA
displaces California’s Compassionate Use Act if the CSA is
constitutional as applied to respondents’ conduct, but that is the
very question at issue. Footnote 7 Other dictionaries do not define the term
“economic” as broadly as the majority does. See, e.g. , The
American Heritage Dictionary of the English Language 583 (3d ed.
1992) (defining “economic” as “[o]f or relating to the production,
development, and management of material wealth , as of a
country, household, or business enterprise” (emphasis added)). The
majority does not explain why it selects a remarkably expansive
40-year-old definition. Footnote 8 See, e.g. , id. , at 380
(“[t]he buying and selling of goods, especially on a large scale,
as between cities or nations”); The Random House Dictionary of the
English Language 411 (2d ed. 1987) (“an interchange of goods or
commodities, esp. on a large scale between different countries … or
between different parts of the same country”); Webster’s 3d 456
(“the exchange or buying and selling of commodities esp. on a large
scale and involving transportation from place to place”).

Summary: The Supreme Court ruled that the federal government has the power to prohibit the local cultivation and use of marijuana, even in states like California that have legalized its use for medicinal purposes. The Court found that the regulation of marijuana falls within Congress' power to regulate interstate commerce and is a valid exercise of the Necessary and Proper Clause. This means that federal law prohibiting marijuana use supersedes state laws that allow it for medicinal purposes.