ON AUGUST 15, 2002, deputies from the Butte County, California, Sheriff’s Department and federal agents from the Drug Enforcement Administration (DEA) visited the home of Diane Monson to investigate the activities of a tenant who lived on the premises. While there, the agents spotted six marijuana plants that Diane, a forty-five-year-old wife, office manager, and bookkeeper, grew to supply the marijuana she used to relieve her severe back pain and spasms. She had turned to marijuana when various combinations of pharmaceutical medicines proved either to be ineffective or to have side effects that interfered with her ability to function normally. For her, marijuana was her only relief.
Although the deputies determined that the plants were legal under California’s Compassionate Use Act, which the voters had approved by popular initiative in 1996, the DEA agents insisted that they were illegal under federal law. Marijuana is listed as a Schedule I drug under the federal Controlled Substances Act (CSA), which was part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Under the CSA, a Schedule I controlled substance must have a high potential for abuse, no currently accepted medical use in medical treatment, and a lack of accepted safety for use under medical supervision. Marijuana was placed on Schedule I in 1970 by the Congress that enacted the CSA.
At first, the deputies refused to let the DEA agents remove the plants, but the agents were insistent. For three hours Diane and her husband “talked with them, reasoned with them, and finally pleaded with them to leave the plants alone.”1 Mike Ramsey, the Butte County district attorney, went to Diane’s aid by calling the U.S. attorney to ask that he instruct the agents to stand down. When, instead, the U.S. attorney approved the seizure of the plants, the deputies called their sheriff for instructions. He told them to step aside and let the plants be taken and destroyed.
Diane was in tears as she watched the DEA agents chop down her medicinal plants, and she felt the muscles in her back tighten up. After that her spasms returned and she was unable to sleep normally. She was forced to procure marijuana from other sources. Purchased marijuana was not only expensive; it was also of uncertain quality.
Thus did a clash between federal and state laws give rise to a direct conflict between federal and state law enforcement officers and prosecutors, which culminated in a three-hour standoff in the backyard of a citizen of the United States. Here state law enforcement agents attempted to protect the liberty of a sovereign individual for whom they worked. But their efforts were overridden by federal power whose political connection with Diane was far more attenuated.
In 2002, Angel Raich was a seriously ill forty-one-year-old mother of two who used marijuana grown for her by two caregivers to alleviate the life-threatening wasting syndrome from which she suffered. Two years earlier, her weight had dropped to only ninety-four pounds, which became life threatening. She also suffered from an inoperable brain tumor and several seizure disorders, the symptoms of which were alleviated by consuming marijuana in various forms. Raich was confined to a wheelchair when her doctors suggested she try marijuana, which enabled her to walk, as well as to increase her weight to a healthy level and maintain it there.2
In the fall of 2002, Diane and Angel brought a civil suit seeking to enjoin the federal government from enforcing the CSA against them. They claimed that the application of the law to the wholly intrastate and entirely noneconomic activities of growing and consuming marijuana exceeded the power of Congress “to regulate commerce . . . among the several states.” In addition, they claimed that the enforcement unconstitutionally deprived them of their life, liberty, or property under the Due Process Clause of the Fifth Amendment. They also invoked the Ninth Amendment. But it was their Commerce Clause challenge that prevailed in the U.S. Court of Appeals for the Ninth Circuit.
Together with attorney Robert Raich, Angel’s then husband, and Diane’s attorney, David Michael, I represented these women in their lawsuit. I argued their case in the federal district court (where we lost), in the Ninth Circuit (where we prevailed), and eventually in the Supreme Court of the United States in the fall of 2004. Representing the federal government that day was then–acting solicitor general Paul Clement. Eight years later, Clement would be my cocounsel in challenging the constitutionality of the Affordable Care Act for exceeding the commerce power of Congress.
The day of our argument, only eight justices were present in the courtroom. Chief Justice Rehnquist was too ill from the cancer that would take his life the following year, so Justice John Paul Stevens, the next most senior justice, presided over the proceedings. In June 2005, by a vote of 6–3, the Supreme Court rejected Diane and Angel’s claim.
All four of the more “progressive” justices, Justices Breyer, Ginsburg, Souter, and Stevens, ruled for the government in an opinion by Justice Stevens that was joined by Justice Kennedy. Justice Antonin Scalia concurred in the result. Three of the five more “conservative” justices, the chief justice and Justices Clarence Thomas and Sandra Day O’Connor, dissented. The case was then remanded to the Ninth Circuit to consider our Due Process Clause challenge, which was ultimately rejected by the appellate judges.3
In ruling that the Controlled Substances Act trumped California’s Compassionate Use Act, the four progressive justices put their principled commitment to unfettered federal power above their compassion for the sick, the suffering, and the dying. In contrast, although they upheld this exercise of federal power, both Justices Kennedy and Scalia in other cases, before and since, have affirmed that the commerce power of Congress does indeed have limits.
I tell this story because it illustrates how “federalism”—the doctrine that the federal and state governments each occupy separate spheres—can serve to protect liberty if the federal government is held by the courts to its limited and enumerated powers. Had their federalism argument been accepted by five justices instead of just three, Angel’s and Diane’s personal liberty would have been protected by the laws enacted by the voters of the state of California. There would have been no need for a court to acknowledge and protect their unenumerated right to preserve their lives and avoid pain and suffering under either the Ninth Amendment or the Due Process Clause of the Fifth—legal claims that ultimately failed to vindicate the most personal of their liberties.
In the last chapter, I explained how the federalism of our Republican Constitution can protect liberty without the need to directly protect individual rights. But this requires that courts hold Congress to its enumerated powers, which they failed to do in Gonzales v. Raich. Indeed, even without judicial enforcement, resistance to the CSA by a growing number of states like California has made marijuana for medical use available to thousands of persons under the laws of their state (though those who exercise this liberty are still criminals in the eyes of the federal government). In short, as I used to tell reporters during the pendency of the Raich case, “federalism is not just for conservatives.”
In this chapter, I tell the story of how the federalism of our Republican Constitution has been undermined by judicial abdication.
In practice, federalism has waxed and waned since the founding, as it underwent three distinct phases during three different eras in our constitutional history: from the founding to the Civil War, from Reconstruction to the New Deal and Great Society, and from the Rehnquist Court to today.
Let’s begin at the beginning. As we have seen, in 1787 the Constitution replaced the Articles of Confederation—which was essentially a treaty among sovereign states—with a new national government ratified by the voters themselves in state conventions rather than by the legislatures of existing states. Under this new system, it was important that the national government have certain powers that were lacking under the Articles and that it be able to act on the citizenry directly without going through the state governments.
But it was also very important that states hold a great deal of power over their own citizens. How much power? Well, enough power to authorize some of their people to legally own others of their people. Now that is a whole lot of power. This was accomplished by granting the new national government only limited and enumerated powers that would have nothing at all to do with slavery within existing states.
The scheme of limited and enumerated powers was crucial to the maintenance of this state autonomy with respect to its domestic affairs, and the original meaning of the limited powers of Congress in Article I, Section 8 reflects this imperative. If, for example, the Commerce and Necessary and Proper clauses meant at the founding what the Supreme Court has held they mean today, Congress would have had the power to prohibit the slave trade within the states, not merely with foreign nations, because slavery was an “economic” activity that “substantially affected” interstate commerce. In this way, the evil of slavery establishes beyond any doubt the greatly limited scope of the original meaning of the enumerated powers of Congress in Article I, Section 8.
This is not to say that states had unlimited power, which was then, as now, the definition of tyranny or despotism. But state legislative powers were almost exclusively limited by states’ own constitutions, some of which were more “republican” than others, to say the least.
Federalism at the founding can therefore best be described as “Enumerated Powers Federalism.” The national government was conceived as one of limited and enumerated powers. The powers of states were simply everything left over after that enumeration that the people of each state had delegated to their respective state legislatures in state constitutions.
Enumerated Powers Federalism is expressed in the first words of Article I, which created Congress: “All legislative powers herein granted shall be vested in a Congress of the United States.”4 This principle is then reinforced by the words of the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”5
It is useful to remember that, while versions of the Tenth Amendment were proposed by several state ratification conventions, James Madison considered it to be superfluous and unnecessary. “Perhaps words which may define this more precisely, than the whole of the instrument now does, may be considered as superfluous,” he said to the House of Representatives during his speech proposing various amendments.6 “I admit they may be deemed unnecessary,” he continued, “but there can be no harm in making such a declaration. . . .”7
Madison’s blasé attitude about the Tenth Amendment was in stark contrast with the imperative he felt to add what eventually became the Ninth Amendment. This provision was needed, he said, to guard against “one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system,” namely, that “by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration.”8 And “it might follow by implication” that those rights that had not been “singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.”9
In the original Constitution, then, the “reserved” powers of states are defined solely in terms of what is left over after powers are “delegated to the United States” and then delegated to the states by their constitutions. There is no affirmative statement about the scope of state powers in the Constitution itself. Indeed, the Tenth Amendment is entirely noncommittal about which of the reserved powers are allocated to state governments and which are reserved “to the people” themselves. This allocation of “reserved” powers was to be determined by state constitutions.
States have many powers, including the power to tax and to spend, and the power to take property for public use. They also have the power to regulate and prohibit the activities of the persons within their borders. Soon after the founding, these “reserved” powers of states to regulate and prohibit activity came to be called the “police power,” though that term does not appear in the Constitution and has proved notoriously difficult to define with precision. “The police power of the state,” one commentator observed in 1921, “is one of the most difficult phases of our law to understand, and it is even more difficult to define it and to place it within any bounds.”10 Difficult no doubt, but not impossible.
The phrase “internal police” was used seven times by delegates to the Constitutional Convention to refer to the power of state governments; once this power was referred to as “their police.” The issue of the police power of states arose when the convention was still considering making a general grant of power to the national government but wished to ensure that the national legislature not “interfere with the governments of the individual States in any matters of internal police, [in] which the general welfare of the United States is not concerned.”11 In The Federalist, Hamilton employs the phrase “domestic police” twice in essays denying that the national government was a threat to state power.12
Because at this time the scope of the “internal police” was simply whatever powers were left over after delegating enumerated powers to Congress, there was no pressing need to define it any more precisely. As we will soon see, however, the situation changed with the enactment of the Fourteenth Amendment, which empowered Congress and the federal courts to protect the privileges or immunities of citizens of the United States from being abridged by the laws of their own states. To implement this protection, it became necessary to identify the proper scope of the police power of states.
With Enumerated Powers Federalism, however, the powers of states are not protected by affirmatively defining their scope. Instead they are protected by holding Congress to its delegated powers, which means that it falls to the federal judiciary to preserve the federalist structure. Unless states violate the few constraints imposed on them by Article I, Section 10 or are interfering with one of Congress’s enumerated powers, what states do with their reserved police powers is not a matter for the national government in general, or the federal courts in particular, to decide.
Early on, however, Enumerated Powers Federalism was undermined by the Supreme Court over the issue of slavery. Some today associate federalism and “states’ rights” with slavery and segregation. But as we have repeatedly seen, from the very beginning, southern slave states were not content with the powers reserved to them by Enumerated Powers Federalism. Instead, they sought to enlist and expand national power in service of slavery.
Perhaps the earliest invocation of national power on behalf of slavery was the Fugitive Slave Act of 1793. But it was not until some fifty years later, in the 1842 case of Prigg v. Pennsylvania,13 that the Supreme Court upheld the act by finding an implied congressional power to enforce the provision of Article IV, Section 2 that read:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.14
You will recall from Chapter 4 that, in the Matilda case, Salmon Chase had argued that this provision, like all the provisions of Article IV, were articles of compact or treaty between the several states to be honored solely by what is called the “comity” or reciprocal respect of other state governments. Just as treaties with foreign nations do not expand the delegated powers of Congress, neither do these articles of compact or treaty among the several states.
As evidence that Congress lacked the power to enforce these articles of compact, Chase pointed to the exceptional grant of congressional power to enforce the Full Faith and Credit Clause in Article IV. Section 1 expressly states that “the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”15 The presence of such a power here, and its absence in the clause governing persons “held to service or labor,” strongly implied that such a power does not exist to enforce that clause.
In Prigg, however, the Supreme Court held that Congress did have the power to enforce this clause by enacting the Fugitive Slave Act. Moreover, this national power overrode the police power of individual states that were trying to protect free blacks within their borders from being wrongfully seized as slaves. Given that Article IV, Section 2 contained no express congressional enforcement power, how did the Court reach its conclusion?
Writing for the Court, Justice Joseph Story implied it by combining the injunction of Article IV with the Necessary and Proper Clause of Article I, Section 8, which gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.”16 With the “end being required” by Article IV, Story reasoned that “it has been deemed a just and necessary implication, that the means to accomplish it are given also.”17
In this way, an unenumerated or implied federal power was deemed by the Court to override the reserved police power of states. Yet the Necessary and Proper Clause only grants Congress power to enact laws to carry into execution “all other Powers vested by the Constitution in the Government of the United States.” And Article IV, Section 2 vested no such powers in the federal government.
Prigg is an early and egregious example of how a judicially sanctioned expansion of congressional power—often by invoking the Necessary and Proper Clause—can overwhelm Federalism 1.0 by overriding the enumerated limits on the powers of Congress that operate to reserve powers to the states and the people. For this version of federalism to work, judges must be engaged and willing to hold the line. By expanding the scope of federal power to uphold an act of Congress, Justice Story had failed to do his job as a servant of the people. Unfortunately, Story’s judicial abdication was a harbinger of things to come.
After the Civil War, the Republicans in the Thirty-Eighth Congress enacted the Thirteenth Amendment, eliminating the power of states to enforce slavery within their borders. But southern states almost immediately used the rest of their vast police powers to enact “Black Codes” to restrict the economic and personal liberties of the freedmen. Their aim was to come as close as possible to restoring slavery in everything but name. By exerting their reserved police powers—together with their countenancing private violence—these states sought to consign free blacks to a subordinate legal class akin to slavery, and to make life treacherous in the South for white Unionists and Republicans.
In response to this, as we have seen, the Republicans in the Thirty-Ninth Congress used their enforcement power under the Thirteenth Amendment to enact the Civil Rights Act of 1866. Although they overrode the veto of President Johnson by supermajorities in both houses, some in Congress saw the need to write these protections into the Constitution lest courts question their power to enact the Civil Rights Act. And only a constitutional amendment would prevent a future Congress containing southern Democrats from repealing the Civil Rights Act, which Democrats were loudly threatening to do.
So the Republicans created the Fourteenth Amendment, which can be viewed as a sort of “do over” of the Thirteenth. The amendment was drafted to eliminate any doubt that they were “amending” Federalism 1.0 by curtailing the power of states to violate the fundamental economic and personal liberties of their own citizens. Section 1 of the amendment defined a new Federalism 2.0 that qualified the previously hands-off approach of Federalism 1.0 by placing new federal constraints on all three branches of state governments:
• First, the new Privileges or Immunities Clause expressly prohibited states from enacting any law that infringed upon the fundamental rights of any or all of their citizens: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In other words, this clause prohibited legislation that either violated fundamental rights across the board, or discriminated in their recognition and protection.
• Second, the new Due Process Clause said that no state shall “deprive any person of life, liberty, or property, without due process of law.” This authorized federal judicial scrutiny of whether a citizen of the United States was subject to death (“life”), imprisonment (“liberty”), or fine (“property”) either (a) by a legislative act that was not truly a “law” because it was irrational or arbitrary, or (b) by a state judicial process that did not accurately apply constitutional laws to particular persons.
• Third, the new Equal Protection Clause specified that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” State executive branch officials were now required to enforce otherwise constitutional laws in a nondiscriminatory fashion.
In addition, while by itself Section 1 would only have authorized federal courts to police the states, the Republicans in Congress sought also to empower themselves. Section 5 of the Fourteenth Amendment gave Congress the enumerated “power to enforce, by appropriate legislation, the provisions of this article.” By refusing to rely on the Supreme Court’s implied powers doctrine of Prigg v. Pennsylvania, the Republicans reinforced Enumerated Powers Federalism by adding an additional enumerated power of Congress, as they had done with the Thirteenth Amendment.
In short, Enumerated Powers Federalism was now supplemented by new federal judicial and legislative powers to protect the fundamental rights of citizens from being violated by (a) creating or maintaining irrational or arbitrary statutes enacted by state legislatures, (b) inaccurately applying those laws to particular persons by state courts, or (c) unequally enforcing those laws by state executive branch officials. We can call Federalism 2.0 “Fundamental Rights Federalism” because it protected the fundamental rights of citizens of the United States from being abridged by their own state governments.
The reaction of the South to this and other measures to restrict its power over the freed blacks was a campaign of terrorism unwitnessed in this country before or since, from lynchings up to and including mass murders. Then, as we have seen, in such cases as the Slaughter-House Cases, Cruikshank, the Civil Rights Cases, and Plessy, the Supreme Court systematically neutered the Fundamental Rights Federalism of the Fourteenth Amendment.
Later, in such cases as Lochner v. New York and Buchanan v. Warley, the Supreme Court used the Due Process Clause to place some limits on the police powers of states. But its efforts were bitterly opposed by progressives who favored the rights of states to enact progressive economic legislation, and by their coalition partners, the southern Democrats, who favored the rights of states to enact the economic system of Jim Crow.
Eventually, this partial revival of Fundamental Rights Federalism using the Due Process Clause of the Fourteenth Amendment was beaten back by the Thayer-Holmes-Brandeis doctrine of judicial restraint. Then, with the New Deal Court’s expansion of federal regulatory power—relying primarily, as had Justice Story in Prigg, on a capacious reading of the Necessary and Proper Clause18—came the demise of the Enumerated Powers Federalism 1.0 of the Founding Era. The Supreme Court held that Congress could regulate or prohibit any intrastate economic activity that had a substantial effect on interstate commerce, even though such activity was not itself “commerce . . . among the several states.”
When these two developments were combined, Congress now had free rein to regulate or prohibit every economic activity in the country—whether interstate or intrastate—unconstrained by the Due Process Clause of the Fifth Amendment that applied to the federal government. True, under the Footnote Four approach of Carolene Products, individuals might still protect themselves from federal or state laws if they could assert that a statute violated an express prohibition of the Constitution or that they were members of a suspect class of persons facing discrimination. But what about the states?
If under the Necessary and Proper Clause, Congress now had the power to reach wholly intrastate economic activity that substantially affects interstate commerce, Congress also has the power to regulate the states themselves. After all, much of what state governments do is economic in nature and certainly affects interstate commerce.
So what becomes of federalism?
Enter the Rehnquist Court. By 1992, during their three terms, Republican presidents Ronald Reagan and George H. W. Bush were able to nominate a majority of the justices, five of whom evinced great sympathy for our system of federalism. Their challenge was somehow to preserve the role of states in our constitutional system without questioning or rolling back the tremendous expansion of federal power that had been approved by the New Deal Court and further expanded by the Warren and Burger Courts.
After William Rehnquist became chief justice in 1986, the Court began developing what came to be known as the “New Federalism,” but which in this story could be called “Federalism 3.0” or “State Sovereignty Federalism.”
First came the Court’s so-called Tenth Amendment cases of New York v. United States,19 Gregory v. Ashcroft,20 and Printz v. United States.21 In each of these cases, the Court attempted to create a special state exemption from federal powers that would easily have reached the conduct in question if performed by a private party. Then came its so-called Eleventh Amendment cases of Seminole Tribe of Florida v. Florida22 and Alden v. Maine,23 immunizing states from some lawsuits in federal court.
In Seminole Tribe, Chief Justice Rehnquist endorsed Justice Bradley’s repudiation of Chisholm v. Georgia in favor of state sovereignty. Under the Rehnquist Court’s New Federalism, it was the sovereignty of states that justified the Court in carving out affirmative protections of state governments from the expansive post–New Deal interpretations of federal power. Its approach was reminiscent of Footnote Four, which had carved out special exceptions for discrete and insular minorities. Federalism 3.0 added states to the list of specially protected groups.
Although the New Federalism preserved some autonomy for states from the control of Congress, the more textually faithful way to protect states is to combine Enumerated Powers Federalism 1.0 with Fundamental Rights Federalism 2.0. This would involve (a) limiting Congress to its enumerated powers and letting states take up the slack except (b) where states have violated the Fourteenth Amendment or other constitutional restrictions on their power like the Contracts Clause. Very tentatively, the Rehnquist Court also began to move in this direction.
In 1995, in United States v. Lopez,24 the Supreme Court invalidated a law making it a federal crime to possess a gun within one thousand feet of a school, ruling that it was beyond the commerce power of Congress. Then, in 2000, in United States v. Morrison,25 the Court similarly held that the creation of a civil cause of action for gender-motivated violence was also beyond the limited and enumerated powers of Congress.
Notice that, by striking down the Gun-Free School Zone Act in Lopez as beyond the power of Congress to enact, the Court protected the right of the people to keep and bear arms, but did so without having to apply the specific prohibition of the Second Amendment.26 Likewise, it also served to protect the reserved powers of states without having to appeal to any unenumerated principle underlying the Tenth or Eleventh Amendments.
Rather than returning to the scheme of limited and enumerated powers, however, the Rehnquist Court sought to preserve the New Deal vision of national economic regulation. It did this by allowing Congress to continue to reach wholly intrastate economic activity that had a substantial effect on interstate commerce, while drawing a line at the power to regulate noneconomic intrastate activity, such as possessing guns within a thousand feet of a school, or engaging in gender-motivated violence.
Rather than unwind or repudiate the so-called New Deal settlement, which accepted a vast expansion of federal power, the Rehnquist Court adopted an approach that can be summarized as (a) this far and no farther without (b) a justification that will not end the enumerated powers scheme altogether. As Chief Justice Rehnquist wrote in his opinion in Morrison, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”27
In this way, the New Deal settlement was to be reconceived rather than “unsettled.” First, the post–New Deal expansion of federal power to reach activity within states was taken to be a high-water mark of federal power. That power could not go any higher without special justification that would not lead to an unlimited power in Congress. Second, affirmative carve-outs from this New Deal expansion of power would be made to accommodate some continued autonomy for “sovereign states,” thereby preserving some semblance of federalism.
With Obamacare, Congress pushed its regulatory power to new heights by commanding that the people buy health insurance from a private company or else pay a penalty. Further, it threatened states with the loss of all current funding for Medicaid if they did not use their police power to vastly increase their Medicaid coverage. But would the Supreme Court find that Congress had exceeded its powers, as it had in Lopez and Morrison?
After what some took to be the abandonment of the New Federalism by Justices Kennedy and Scalia in Raich, the death of Chief Justice Rehnquist, and the retirement of Justice O’Connor, it was reasonable to question whether there were still five votes to uphold the New Federalism of the Rehnquist Court. Most law professors thought not. But, as we have seen, the Roberts Court found both exercises of power to be unconstitutional.
Justices Kennedy and Scalia returned to the federalism fold. With their votes, a mandate to engage in economic activities was held by five justices to be beyond both the Commerce and the Necessary and Proper clause powers of Congress. Although we failed to defeat Obamacare, the principle that the federal government is one of limited and enumerated powers was vindicated.
At the same time, Chief Justice Roberts’s approach of adopting a “saving construction” to uphold the rest of the statute opened the eyes of many constitutional conservatives to the problem with “judicial restraint.” This highly visible refusal to enforce the Constitution’s limits on federal power may well have been a political inflection point. Now, more than at any time since the New Deal, there is a burning desire among many conservatives and libertarians for judges who will have the courage to more fully revive and redeem our Republican Constitution.