In The
Supreme Court of the United States
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JEFFERSON B. SESSIONS III,
ATTORNEY GENERALOF THE UNITED STATES, ET AL,
Petitioner,
v.
MIRANDA BETTS, ET AL,
Respondent.
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On Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit
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OPINION OF ASSOCIATE JUSTICE AHMET SIRRIK
November 7, 2018
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STATEMENT OF THE CASE AND FACTS
This appeal arose from the state of North Carolina’s “Death with Dignity Act” that was passed on March 20, 2019. In April 2019, the House of Representatives and the Senate passed an amendment to the Controlled Substances Act (the “CSA”). The 2019 amendment to the CSA (the “2019 Amendment”) authorized the Attorney General of the United States and the Secretary for Health and Human Services to jointly interpret which controlled substances meets the “legitimate medical purposes” requirement of the CSA. Afterwards, the Attorney General and the Secretary for Health issues an Interpretive Rule that physician-assisted suicide was not a legitimate purpose and that administering these drugs were in violation of the CSA.
In September 2019, Dr. Miranda Betts filed suits in the United States District Court for the Middle District of North Carolina, joined by the North Carolina Attorney General and a group of North Carolina physicians and patients. The party challenged the constitutionality of the 2019 Amendment and are seeking an stop the enforcement of the Interpretive Rule. In March 2020, the District Court entered an injunction and ruled in favor of the plaintiffs. The United States Court of Appeals for the Fourth Circuit ruled 2-1 to affirm the decision of the District Court that Congress had exceeded its power under the Commerce Clause. The federal government appealed this decision of the Fourth Circuit to the United States Supreme Court and the Supreme Court of the United States granted cert in early 2021. Now we consider the following two issues before the Court: (I) Whether the Court’s ruling in Gonzales v. Raich should be overruled, and (II) Whether the 2019 Amendment and the Interpretive Rule exceeds Congress’ authority under the Commerce Clause.
I. THE COURT’S HOLDING IN GONZALES V. RAICH SHOULD NOT BE OVERTURNED.
I agree with the Court’s holding in Gonzales v. Raich (“Raich”) that the Controlled Substances Act (CSA) may be validly applied to the cultivation, distribution, and possession of marijuana for personal and medicinal use. My understanding of the doctrine is consistent with that of the Court and I find it to be compliant with the Constitution of the United States and therefore believe that Raich should not be overturned. Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. The reasons for upholding are as follows: (1) It serves the purpose of consolidating various drug laws into a broad and comprehensive statute, (2) It provides regulation of legitimate sources of drugs to prevent diversion into illegal channels, and (3) It strengthens law enforcement tools against interstate drug trafficking. The Commerce Clause of the Constitution of the United States describes an enumerated power of the Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Specifically, the Interstate Commerce Clause is the source of the federal drug prohibition laws under the CSA. Congress enacted the CSA to create a regulated system making it unlawful to manufacture, dispense, or possess any controlled substance except those authorized by the CSA. Marijuana is classified as a Schedule I substance based on its high potential for abuse and lack of accepted medical use. Therefore, this classification makes the manufacture, distribution, or possession of marijuana a criminal offense.
It is firmly established that Congress has the power to regulate local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. If Congress decides that the individual occurrence of an economic practice poses a threat to the national market, it may regulate the entirety of that practice. Wickard v. Fullburn (“Wickard”) is of particular relevance here. The Court rejected the appellee’s argument that Congress’ federal regulation of wheat production intended for the individual’s own consumption was unconstitutional. In doing so, it held that Congress could regulate activity within a single state under the Commerce Clause, even when that activity is not commercial in nature, meaning the item was not produced for sale. Congress has the power to regulate such activity if it concludes that a failure to regulate would weaken the interstate market for that commodity.
There are noticeable similarities between Wickard and Raich that leave no difficulty concluding that Raich should be upheld as good law and precedent. In both cases, the commodity was meant for home consumption. Whether the commodity was wheat or marijuana, it has a sizeable effect on the supply and demand in the national market for that commodity. The regulation of these activities is rightly within Congress’ commerce power. There difficulties that arise when trying to distinguish between marijuana that was grown locally and grown elsewhere
combined with potential for diversion into illegal channels gives the Court no doubt that Congress has a rational basis for regulating the intrastate manufacture, possession, and use of marijuana. Even if no goods were sold or transported across state line, there could be an indirect effect on interstate commerce and more generally, the CSA.
Raich is unlike U.S. v. Lopez (“Lopez”) and U.S. v. Morrison (“Morrison”) in that the statutory challenges at issue there were considerably different from the challenge here. Both Lopez and Morrison asserted that a particular provision fell outside of Congress’ commerce power, but it has been the case that the Court cannot act on a class of activities that is regulated by Congress. Furthermore, the respective issues in Lopez and Morrison were not related to “commerce” or any form of economic enterprise. The CSA regulates purely economic activities, which includes the production, distribution, and consumption of a commodity. This commodity must also have an established and profitable interstate market. Prohibiting the intrastate ownership and manufacture of a commodity, specifically marijuana, is a meaningful way of regulating the commerce of that product. It was the case that the Ninth Circuit Court of Appeals ruled that the CSA was unconstitutional as it applied to intrastate commerce and held it beyond the reach of federal power. Specifically, it came down to the claim that a locally cultivated product used domestically is not subject to federal regulation. Given the large commercial market marijuana, the CSA can counter that claim. Congress acted rationally in determining that this seemingly segmented activity was part of its the regulatory scope. To conclude, it is my understanding that Lopez and Morrison do not undermine Raich.
Justice O’Connor’s dissenting opinion, joined by Chief Justice William Rehnquist, authored the belief that Congress’ authority under the Commerce Clause was limited “to protect historic spheres of state sovereignty from excessive federal encroachment” and “maintain the distribution of power fundamental to our federalist system of government.” I think that opinion is unjustified. The power to enact laws enable regulation of interstate commerce can only be exercised in combination with congressional regulation of an interstate market. Otherwise, it would not extend to those measures which are needed to make interstate regulation effective. The distinction here is to determine what constitutes as “a rational basis” for the regulation of interstate economic activity. I believe that the federal government needs to suggest “substantial” evidence that an intrastate commercial activity requires federal regulation and currently, this power is reserved to Congress.
II. THE 2019 AMENDMENT, AND THE INTERPRATIVE RULE ISSUED PURSUANT THERETO, EXCEEDS CONGRESS’ AUTHORITY UNDER THE COMMERCE CLAUSE.
Considering Betts v. Sessions (“Betts”), I believe that the Court must rule in accordance to Betts. Applying Raich as precedent, the facts of this case are sufficiently different from that case such that it should be decided in a different manner. The reasons for my opinion are as follows: (1) Unlike in Raich, the attorney general has moved away from regulating economic activity and entered into the realm of the patient and doctor relationship in Betts, and (2) Prescription medical aid-in-dying medication is a legal drug that is issued for a legitimate medical purpose; therefore, the 2019 Amendment and the Interpretive Rule issued afterwards exceed Congress’ authority under the Commerce Clause.
In the case of Raich, the intrastate manufacture, distribution, and consumption of marijuana has a noticeable effect on the supply and demand of the national marijuana market. When individuals grow marijuana in their homes, their actions can cause the prices on marijuana nationwide to go down based on the excess supply. The widespread effects that individual manufacture and consumption of marijuana are what gives Congress the authority to regulate this activity under the Commerce Clause. Although it is true that the aid-in-dying medication is manufactured, marketed, and sold like any other drug, this similarity is not enough to lead to a different analysis as to whether Congress has the power to regulate this activity. The aid-in-dying medication has no substantial effect on interstate commerce; it cannot be distributed across state borders and no financial incentives exists for individuals who use this medication in their private lives. Even when considering the cumulative effect of all patients who use aid-in-dying medication, this effect is nowhere substantial enough that Congress can rationally conclude to regulate such an activity. Unlike Raich, where the individual activity of marijuana production has the potential to affect interstate commerce, the aid-in-dying medication has no potential whatsoever. Consequently, Congress is overstepping its constitutional authority when it attempts to regulate such an activity.
Another major distinction remains between the Betts and Raich cases. In Raich, the commodity that Congress is attempting to introduce regulation over is illegal. Federal law clearly indicates the manufacture, distribution, or possession of marijuana is a criminal offense. Therefore, it has no place in any doctor’s office or amongst any medicine prescribed by a doctor. In Betts though, the Court is considering a commodity that is completely legal. Congress itself, through the CSA, has ruled that aid-in-dying medication should be legal. The Court is not dealing illegal drugs in a legal marketplace, but a legal drug that doctors can prescribe to their patients. For this reason, I believe that the attorney general has moved away from regulating economic activity and entered a whole other realm. The implications of giving Congress such a power has to be considered by the Court. Once a drug is legal, the Commerce Clause does not give Congress the right to step into the shoes of doctors and control when these medications should be prescribed or not. Such behavior encroaches on the patient and doctor relationship that Congress is best left out of. The fact that one of these marketplaces are legal and the other is illegal is important enough of a distinction to rule against the 2019 Amendment and the Interpretive Rule issued pursuant to it.
Justice Steven’s concurrence on Vacco v. Quill (“Quill”) provides further valuable insight. Although Quill ruled that a state prohibition on physician-assisted suicide does not violate the Equal Protection Clause of the Fourteenth Amendment, Justice Steven noted the debate of capital punishment constitutionally permissible, writing that “the morality, legality, and practicality of capital punishment have been the subject of debate for many years. In 1976, this Court upheld the constitutionality of the practice in cases coming to us from Georgia, Florida, and Texas. In those cases we concluded that a State does have the power to place a lesser value on some lives than on others; there is no absolute requirement that a State treat all human life as having an equal right to preservation.” Vacco v. Quill, 521 US, 793 (1997). As such, deciding that a certain statute outlawing assisted suicide was constitutional does not mean that every possible application would be viewed in a similar fashion. Justice Steven continues to say that the State has a compelling interest in preventing suicide because of depression or coercion, but this interest does not apply to an individual who makes a rational and voluntary decision to seek assistance in dying. The North Carolina “Death with Dignity Act” clearly indicates that the individual must express the wish to receive a prescription for aid-in-dying medication multiple times. Additionally, the individual’s attending physician must determine whether the individual has the mental capacity to receive such medication. Considering these facts, I believe that the North Carolina statute is wholly constitutional and free from Congressional regulation. To conclude, I acknowledge that some of the facts in this case are similar to Raich, but there are sufficiently different circumstances here that the Court must rule in favor of Betts and against the 2019 Amendment.
III. CONCLUSION
For the foregoing reasons, I respectfully believe that the Court’s holding in Raich should be upheld. It serves the purpose of consolidating precedent into a comprehensive statute and provides regulation of legitimate sources of drugs to prevent diversion into illegal channels. Congress solely has the power to regulate local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce under the Commerce Clause, even when that activity is not commercial in nature A failure to regulate an individual’s production and consumption of marijuana can weaken the interstate market for that commodity. Moreover, the 2019 Amendment and the Interpretive Rule exceed Congress’ authority under the Commerce Clause because the aid-in-dying medication has no substantial effect on interstate commerce; it cannot be distributed across state borders and no financial incentives exists for individuals to use this drug. This medication is completely legal as defined by the CSA and therefore serves a legitimate medical purpose.
Respectfully Submitted,
Justice Ahmet Sirrik