Independent study

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KeyCite Yellow Flag - Negative Treatment Declined to Extend by National Federation of Independent Business v.

Sebelius, U.S., June 28, 2012

125 S.Ct. 2195 Supreme Court of the United States

Alberto R. GONZALES, Attorney General, et al., Petitioners,

v. Angel McClary RAICH et al.

No. 03-1454. |

Argued Nov. 29, 2004. |

Decided June 6, 2005.

Synopsis

Background: Users and growers of marijuana for medical

purposes under California Compassionate Use Act sought

declaration that Controlled Substances Act (CSA) was

unconstitutional as applied to them. The United States

District Court for the Northern District of California,

Martin J. Jenkins, J., 248 F.Supp.2d 918, denied plaintiffs’

motion for preliminary injunction. Plaintiffs appealed. The

United States Court of Appeals for the Ninth Circuit,

Pregerson, Circuit Judge, 352 F.3d 1222, reversed and

remanded. Certiorari was granted.

[Holding:] The Supreme Court, Justice Stevens, held that

application of CSA provisions criminalizing manufacture,

distribution, or possession of marijuana to intrastate

growers and users of marijuana for medical purposes did

not violate Commerce Clause.

Vacated and remanded.

Justice Scalia concurred in judgment and filed opinion.

Justice O’Connor dissented and filed opinion in which

Chief Justice Rehnquist and Justice Thomas joined in part.

Justice Thomas dissented and filed opinion.

West Headnotes (4)

[1]

Commerce

Federal Offenses and Prosecutions

Controlled Substances

Validity

Application of Controlled Substances Act (CSA)

provisions criminalizing manufacture,

distribution, or possession of marijuana to

intrastate growers and users of marijuana for

medical purposes, as otherwise authorized by

California Compassionate Use Act, did not

exceed Congress’ authority under Commerce

Clause; prohibition of intrastate growth and use

of marijuana was rationally related to regulation

of interstate commerce in marijuana. U.S.C.A.

Const. Art. 1, § 8, cl. 3; Comprehensive Drug

Abuse Prevention and Control Act of 1970, §§

401(a)(1), 404(a), 21 U.S.C.A. §§ 841(a)(1),

844(a); West’s Ann.Cal.Health & Safety Code §

11362.5.

565 Cases that cite this headnote

[2]

Commerce

Activities Affecting Interstate Commerce

Commerce Clause grants Congress power to

regulate purely local activities that are part of

economic class of activities that have substantial

effect on interstate commerce. U.S.C.A. Const.

Art. 1, § 8, cl. 3.

412 Cases that cite this headnote

[3]

Constitutional Law

Determination of Propriety of Classification

Where class of activities is regulated and that

class is within reach of federal power, courts have

no power to excise, as trivial, individual instances

of class.

61 Cases that cite this headnote

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[4]

Commerce

Commerce Among the States

State action cannot circumscribe Congress’

plenary commerce power. U.S.C.A. Const. Art.

1, § 8, cl. 3.

105 Cases that cite this headnote

West Codenotes

Negative Treatment Vacated

21 U.S.C. § 841(a)(1)

**2196 *1 Syllabus*

California’s Compassionate Use Act authorizes limited

marijuana use for medicinal purposes. Respondents Raich

and Monson are California residents who both use doctor-

recommended marijuana for serious medical conditions.

After federal Drug Enforcement Administration agents

seized and destroyed all six of Monson’s cannabis plants,

respondents brought this action seeking injunctive and

declaratory relief prohibiting the enforcement of the

federal Controlled Substances Act (CSA) to the extent it

prevents them from possessing, obtaining, or

manufacturing cannabis for their personal medical use.

Respondents claim that enforcing the CSA against them

would violate the Commerce Clause and other

constitutional provisions. The District Court denied

respondents’ motion for a preliminary injunction, but the

Ninth Circuit reversed, finding that they had demonstrated

a strong likelihood of success on the claim that the CSA is

an unconstitutional exercise of Congress’ Commerce

Clause authority as applied to 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. The court

relied heavily on United States v. Lopez, 514 U.S. 549, 115

S.Ct. 1624, 131 L.Ed.2d 626, and United States v.

Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658,

to hold that this separate class of purely local activities was

beyond the reach of federal power.

*2 Held: Congress’ Commerce Clause authority includes

the power to prohibit the local cultivation and use of

marijuana in compliance with California law. Pp. 2201-

2215.

(a) For the purposes of consolidating various drug laws into

a comprehensive statute, providing meaningful regulation

over legitimate sources of drugs to prevent diversion into

illegal channels, and strengthening law enforcement tools

**2197 against international and interstate drug

trafficking, Congress enacted the Comprehensive Drug

Abuse Prevention and Control Act of 1970, Title II of

which is the CSA. To effectuate the statutory goals,

Congress devised a closed regulatory system making it

unlawful to manufacture, distribute, dispense, or possess

any controlled substance except as authorized by the CSA.

21 U.S.C. §§ 841(a)(1), 844(a). All controlled substances

are classified into five schedules, § 812, based on their

accepted medical uses, their potential for abuse, and their

psychological and physical effects on the body, §§ 811,

812. Marijuana is classified as a Schedule I substance, §

812(c), based on its high potential for abuse, no accepted

medical use, and no accepted safety for use in medically

supervised treatment, § 812(b)(1). This classification

renders the manufacture, distribution, or possession of

marijuana a criminal offense. §§ 841(a)(1), 844(a). Pp.

2201-2204.

(b) Congress’ power to regulate purely local activities that

are part of an economic “class of activities” that have a

substantial effect on interstate commerce is firmly

established. See, e.g., Perez v. United States, 402 U.S. 146,

151, 91 S.Ct. 1357, 28 L.Ed.2d 686. If Congress decides

that the “ ‘total incidence’ ” of a practice poses a threat to

a national market, it may regulate the entire class. See, e.g.,

id., at 154-155, 91 S.Ct. 1357. Of particular relevance here

is Wickard v. Filburn, 317 U.S. 111, 127-128, 63 S.Ct. 82,

87 L.Ed. 122, where, in rejecting the appellee farmer’s

contention that Congress’ admitted power to regulate the

production of wheat for commerce did not authorize

federal regulation of wheat production intended wholly for

the appellee’s own consumption, the Court established that

Congress can regulate purely intrastate activity that is not

itself “commercial,” i.e., 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. 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. In assessing the scope of Congress’

Commerce Clause authority, the Court 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. E.g.,

Lopez, 514 U.S., at 557, 115 S.Ct. 1624. Given the

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enforcement *3 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, the Court has 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. Pp. 2204-2209.

(c) Respondents’ heavy reliance on Lopez and Morrison

overlooks the larger context of modern-era Commerce

Clause jurisprudence preserved by those cases, while also

reading those cases far too broadly. The statutory

challenges at issue there were markedly different from the

challenge here. Respondents ask the Court to excise

individual applications of a concededly valid

comprehensive 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 the Court has often

reiterated that “[w]here the class of activities is regulated

and that class is within the reach of federal power, the

**2198 courts have no power ‘to excise, as trivial,

individual instances’ of the class.” Perez, 402 U.S., at 154,

91 S.Ct. 1357. Moreover, the Court emphasized that the

laws at issue in Lopez and Morrison had nothing to do with

“commerce” or any sort of economic enterprise. See Lopez,

514 U.S., at 561, 115 S.Ct. 1624; Morrison, 529 U.S., at

610, 120 S.Ct. 1740. In contrast, the CSA regulates

quintessentially economic activities: 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 means of regulating

commerce in that product. The Ninth Circuit cast doubt on

the CSA’s constitutionality by isolating a distinct class of

activities that it held to be beyond the reach of federal

power: 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. However, Congress clearly acted rationally

in determining that this subdivided class of activities is an

essential part of the larger regulatory scheme. The case

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

CSA’s findings and the undisputed magnitude of the

commercial market for marijuana, Wickard and its progeny

foreclose that claim. Pp. 2209-2215.

352 F.3d 1222, vacated and remanded.

STEVENS, J., delivered the opinion of the Court, in which

KENNEDY, SOUTER, GINSBURG, and BREYER, JJ.,

joined. SCALIA, J., filed an opinion concurring in the

judgment, post, p. 2215. O’CONNOR, J., filed a dissenting

opinion, in which REHNQUIST, C. J., and THOMAS, J.,

joined as to all but Part III, post, p. 2220. THOMAS, J.,

filed a dissenting opinion, post, p. 2229.

Attorneys and Law Firms

Robert A. Raich, Oakland, David M. Michael, The

DeMartini Historical, Landmark Building, San Francisco,

CA, Randy E. Barnett, Boston University, School of Law,

Boston, MA, Robert A. Long, Jr., Counsel of Record, Heidi

C. Doerhoff, Joshua D. Greenberg, Covington & Burling,

Washington, DC, for Respondents.

Paul D. Clement, Acting Solicitor General, Counsel of

Record, Peter D. Keisler, Assistant Attorney General,

Edwin S. Kneedler, Deputy Solicitor General, Lisa S. Blatt,

Assistant to the Solicitor General, Mark B. Stern, Alisa B.

Klein, Mark T. Quinlivan, Attorneys, Department of

Justice, Washington, D.C., Brief for the Petitioners.

Opinion

Justice STEVENS delivered the opinion of the Court.

*5 California is one of at least nine States that authorize the

use of marijuana for medicinal purposes.1 The question

presented **2199 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,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 1996.3 The

proposition was designed *6 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 toward ensuring the safe and affordable

distribution of the drug to patients in need.4 The Act creates

an exemption from criminal prosecution for physicians,5 as

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well as for patients and primary caregivers who possess or

cultivate marijuana for medicinal purposes with the

recommendation or approval of a physician.6 A “primary

caregiver” is a person who has consistently assumed

responsibility for the housing, health, or safety of the

patient.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 **2200 terms of the

Compassionate Use *7 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 *8 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 (N.D.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.8 Raich v. Ashcroft, 352 F.3d 1222

(2003). The court found that respondents had

“demonstrated a strong likelihood **2201 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 *9

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, 115 S.Ct. 1624, 131

L.Ed.2d 626 (1995), and United States v. Morrison, 529

U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (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 (opinion of Beam,

J.).

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The obvious importance of the case prompted our grant of

certiorari. 542 U.S. 936, 124 S.Ct. 2909, 159 L.Ed.2d 811

(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.

*10 II

Shortly after taking office in 1969, President Nixon

declared a national “war on drugs.”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.10 That effort culminated in the

passage of the Comprehensive Drug Abuse Prevention and

Control Act of 1970, 84 Stat. 1236.

**2202 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.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.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 *11 parties

so registered, and by regulating the issuance of

prescriptions.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, 50 Stat. 551 (repealed 1970).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.15 Moreover,

doctors wishing to prescribe marijuana for medical

purposes were required to comply with rather burdensome

administrative requirements.16 Noncompliance exposed

traffickers to severe federal penalties, whereas compliance

would often subject them to prosecution under state law.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 *12 this policy shift. First, in Leary v. United

States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (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 **2203 of Narcotics, then housed in

the Department of the 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.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.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.20 Congress was particularly

concerned with the *13 need to prevent the diversion of

drugs from legitimate to illicit channels.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

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grouped together based on their accepted medical uses, the

potential for abuse, and **2204 their psychological and

physical effects on the body. *14 §§ 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.”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

preapproved research study. §§ 823(f), 841(a)(1), 844(a);

see also United States v. Oakland Cannabis Buyers’

Cooperative, 532 U.S. 483, 490, 121 S.Ct. 1711, 149

L.Ed.2d 722 (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 *15 schedules. § 811. Despite considerable

efforts to reschedule marijuana, it remains a Schedule I

drug.23

III

[1] 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 **2205 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

*16 evolved over time.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.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.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.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, 91 S.Ct. 1357, 28

L.Ed.2d 686 (1971). Second, Congress has authority to

regulate and protect the instrumentalities of interstate

commerce, and persons or things in interstate *17

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, 57 S.Ct. 615, 81 L.Ed. 893 (1937). Only the third

category is implicated in the case at hand.

[2] 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, 91

S.Ct. 1357; Wickard v. Filburn, 317 U.S. 111, 128-129, 63

S.Ct. 82, 87 L.Ed. 122 (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 **2206 it exerts a substantial

economic effect on interstate commerce.” Id., at 125, 63

S.Ct. 82. We have never required Congress to legislate with

scientific exactitude. When Congress decides that the “

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‘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, 91 S.Ct. 1357 ( “ ‘[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’

”(quoting Westfall v. United States, 274 U.S. 256, 259, 47

S.Ct. 629, 71 L.Ed. 1036 (1927))). 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, 115 S.Ct.

1624 (quoting Maryland v. Wirtz, 392 U.S. 183, 196, n. 27,

88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); emphasis deleted).

Our decision in Wickard, 317 U.S. 111, 63 S.Ct. 82, 87

L.Ed. 122, 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 *18 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, 63 S.Ct. 82. 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, 63

S.Ct. 82.

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.28 Just as

the Agricultural Adjustment Act was designed “to *19

control the volume [of wheat] moving in interstate and

foreign commerce in order **2207 to avoid surpluses ...”

and consequently control the market price, id., at 115, 63

S.Ct. 82, 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, 63 S.Ct. 82. 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.29

*20 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 Filburn’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,

63 S.Ct. 82. 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 Filburn was

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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.30 And while it **2208 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 *21 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.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, 115 S.Ct. 1624; Perez, 402 U.S.,

at 156, 91 S.Ct. 1357, 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, 114 S.Ct.

2445, 129 L.Ed.2d 497 (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.32

*22 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,

115 S.Ct. 1624; see also Hodel v. Virginia Surface Mining

& Reclamation Assn., Inc., 452 U.S. 264, 276-280, 101

S.Ct. 2352, 69 L.Ed.2d 1 (1981); Perez, 402 U.S., at 155-

156, 91 S.Ct. 1357; **2209 Katzenbach v. McClung, 379

U.S. 294, 299-301, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964);

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,

252-253, 85 S.Ct. 348, 13 L.Ed.2d 258 (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,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.

*23 IV

[3] 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, 115

S.Ct. 1624, and Morrison, 529 U.S. 598, 120 S.Ct. 1740.

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, 91 S.Ct.

1357 (quoting Wirtz, 392 U.S., at 193, 88 S.Ct. 2017

(emphasis deleted)); see also Hodel, 452 U.S., at 308, 101

S.Ct. 2352.

At issue in Lopez, 514 U.S. 549, 115 S.Ct. 1624, 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

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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:

*24 “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 **2210 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, 115 S.Ct. 1624.

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 3d 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 *25 unless the

intrastate activity were regulated.” Lopez, 514 U.S., at 561,

115 S.Ct. 1624.34 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,

120 S.Ct. 1740. 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.’ ”35 Morrison, 529 U.S., at 610, 120 S.Ct.

1740.

**2211 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 *26 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.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 *27 of

Appeals was an essential part of the larger regulatory

scheme.

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First, the fact that marijuana is used “for personal medical

purposes on the advice of a physician” cannot itself serve

as a distinguishing factor. Id., 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,37 the CSA

would still **2212 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

*28 §§ 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, 99 S.Ct. 2470,

61 L.Ed.2d 68 (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 2223 (opinion of O’CONNOR,

J.); post, at 2235 (opinion of THOMAS, J.). 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 2220

(opinion of O’CONNOR, J.), 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 *29 naked

eye,” Lopez, 514 U.S., at 563, 115 S.Ct. 1624, under any

commonsense appraisal of the probable consequences of

such an open-ended exemption.

[4] 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.

**2213 Wirtz, 392 U.S., at 196, 88 S.Ct. 2017 (quoting

Sanitary Dist. of Chicago v. United States, 266 U.S. 405,

426, 45 S.Ct. 176, 69 L.Ed. 352 (1925)). See also 392 U.S.,

at 195-196, 88 S.Ct. 2017; Wickard, 317 U.S., at 124, 63

S.Ct. 82 (“ ‘[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, 120 S.Ct.

1740 (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, 61 S.Ct. 451,

85 L.Ed. 609 (1941) (“That power can neither be enlarged

nor diminished by the exercise or non-exercise of state

power”).38

*30 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

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principal dissent concedes, post, at 2229 (opinion of

O’CONNOR, J.), 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 *31 recommend marijuana use is

open-ended. **2214 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.39 And our

cases have taught us that there are some unscrupulous

physicians who overprescribe when it is sufficiently

profitable to do so.40

The exemption for cultivation by patients and caregivers

can only increase the supply of marijuana in the California

market.41 The likelihood that all such production will *32

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.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.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

**2215 effect on commerce while admittedly “plausible”

is ultimately “unsubstantiated,” post, at 2229, 2227-2228,

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 *33 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.

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, 91 S.Ct. 1357,

28 L.Ed.2d 686 (1971), our cases have mechanically

recited that the Commerce Clause permits congressional

regulation of three categories: (1) the *34 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, 91 S.Ct. 1357; see United States v.

Morrison, 529 U.S. 598, 608-609, 120 S.Ct. 1740, 146

L.Ed.2d 658 (2000); United States v. Lopez, 514 U.S. 549,

558-559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); Hodel

v. Virginia Surface Mining & Reclamation Assn., Inc., 452

U.S. 264, 276-277, 101 S.Ct. 2352, 69 L.Ed.2d 1 (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, 6 L.Ed. 23 (1824). The third

category, however, is different in kind, and its recitation

without explanation is misleading and incomplete.

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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 **2216 them cannot come from the

Commerce Clause alone. Rather, as this Court has

acknowledged since at least United States v. Coombs, 12

Pet. 72, 9 L.Ed. 1004 (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, 85 S.Ct. 377, 13 L.Ed.2d

290 (1964); United States v. Wrightwood Dairy Co., 315

U.S. 110, 119, 62 S.Ct. 523, 86 L.Ed. 726 (1942);

Shreveport Rate Cases, 234 U.S. 342, 353, 34 S.Ct. 833,

58 L.Ed. 1341 (1914); United States v. E.C. Knight Co.,

156 U.S. 1, 39-40, 15 S.Ct. 249, 39 L.Ed. 325 (1895)

(Harlan, J., dissenting).1 And the category of “activities that

substantially affect interstate commerce,” Lopez, supra, at

559, 115 S.Ct. 1624, is incomplete because the authority to

enact laws necessary and proper for the regulation of

interstate commerce is not limited to laws *35 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, 57 S.Ct. 615, 81

L.Ed. 893 (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, 101 S.Ct. 2352

(surface coal mining); Katzenbach, supra, at 300, 85 S.Ct.

377 (discrimination by restaurants); Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct.

348, 13 L.Ed.2d 258 (1964) (discrimination by hotels);

Mandeville Island Farms, Inc. v. American Crystal Sugar

Co., 334 U.S. 219, 237, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)

(intrastate price fixing); Board of Trade of Chicago v.

Olsen, 262 U.S. 1, 40, 43 S.Ct. 470, 67 L.Ed. 839 (1923)

(activities of a local grain exchange); Stafford v. Wallace,

258 U.S. 495, 517, 524-525, 42 S.Ct. 397, 66 L.Ed. 735

(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, 115 S.Ct. 1624; Morrison,

supra, at 610, 120 S.Ct. 1740 (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, 115 S.Ct. 1624 *36 quoting A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495, 554, 55 S.Ct.

837, 79 L.Ed. 1570 (1935)); see also **2217 Morrison,

supra, at 615-616, 120 S.Ct. 1740-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, 115 S.Ct. 1624; Morrison, supra, at 617-618, 120

S.Ct. 1740. “[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.” 514 U.S., at 564, 115 S.Ct. 1624; see also

Morrison, supra, at 615-616, 120 S.Ct. 1740. 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, 115 S.Ct. 1624, 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, 115 S.Ct. 1624.

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., supra, at 119, 62 S.Ct.

523; see also United States v. Darby, 312 U.S. 100, 118-

119, 61 S.Ct. 451, 85 L.Ed. 609 (1941); Shreveport Rate

Cases, supra, at 353, 34 S.Ct. 833. As the Court put it in

Wrightwood Dairy, where Congress has the authority to

enact a regulation of interstate commerce, “it possesses

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every power needed to make that regulation effective.” 315

U.S., at 118-119, 62 S.Ct. 523.

*37 Although this power “to make ... regulation effective”

commonly overlaps with the authority to regulate

economic activities that substantially affect interstate

commerce,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, 115 S.Ct. 1624. 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, 61

S.Ct. 451.

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,” **2218 312

U.S., at 121, 61 S.Ct. 451, 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, 61 S.Ct. 451, but could also require those

employers to keep employment records in order to

demonstrate compliance with the regulatory scheme, id., at

125, 61 S.Ct. 451. 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, 61 S.Ct. 451, it affirmed the

latter on the sole ground that “[t]he requirement *38 for

records even of the intrastate transaction is an appropriate

means to the legitimate end,” id., at 125, 61 S.Ct. 451.

As the Court said in the Shreveport R. Co., 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, 34 S.Ct. 833; see also Jones

& Laughlin Steel Corp., 301 U.S., at 38, 57 S.Ct. 615 (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

2223 (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, 115 S.Ct. 1624;

ante, at 2206, 2210. 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, 115 S.Ct. 1624.

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 *39 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, 115

S.Ct. 1624, 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 (C.A.4 1999) (en

banc).) To dismiss this distinction as “superficial and

formalistic,” see post, at 2223 (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, 4 L.Ed. 579 (1819).

And there are other restraints upon the Necessary and

Proper Clause authority. As Chief Justice Marshall wrote

in McCulloch **2219 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, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), and

New York v. United States, 505 U.S. 144, 112 S.Ct. 2408,

120 L.Ed.2d 120 (1992), affirm that a law is not “ ‘proper

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for carrying into Execution the Commerce Clause’ ”

“[w]hen [it] violates [a constitutional] principle of state

sovereignty.” Printz, supra, at 923-924, 117 S.Ct. 2365;

see also New York, supra, at 166, 112 S.Ct. 2408.

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, *40 foster and protect the commerce, but

embraces those which prohibit it.” Darby, 312 U.S., at 113,

61 S.Ct. 451. See also Hipolite Egg Co. v. United States,

220 U.S. 45, 58, 31 S.Ct. 364, 55 L.Ed. 364 (1911); Lottery

Case, 188 U.S. 321, 354, 23 S.Ct. 321, 47 L.Ed. 492

(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.3 *41 See **2220 ante, at 2211-2215.

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 ante, at 2213, 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, 4 Wheat. 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 2224, 2226 (opinion of

O’CONNOR, J.); post, at 2234 (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, 96

S.Ct. 2465, 49 L.Ed.2d 245 (1976); see Cleveland v. United

States, 329 U.S. 14, 19, 67 S.Ct. 13, 91 L.Ed. 12 (1946);

McCulloch, supra, at 424. At bottom, respondents’ *42

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, 115 S.Ct. 1624.

That is sufficient to authorize the application of the CSA to

respondents.

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, 115 S.Ct. 1624,

131 L.Ed.2d 626 (1995); NLRB v. Jones & Laughlin Steel

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Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (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, 52 S.Ct. 371,

76 L.Ed. 747 (1932) (Brandeis, J., dissenting).

**2221 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, 113 S.Ct. 1710, 123

L.Ed.2d 353 (1993); *43 Whalen v. Roe, 429 U.S. 589, 603,

n. 30, 97 S.Ct. 869, 51 L.Ed.2d 64 (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, 120 S.Ct. 1740,

146 L.Ed.2d 658 (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 that 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, 115 S.Ct. 1624 (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, 105 S.Ct. 1005, 83 L.Ed.2d 1016

(1985) (O’CONNOR, J., dissenting) (explaining that

United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85

L.Ed. 609 (1941), United States v. Wrightwood Dairy Co.,

315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942), and

Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed.

122 (1942), *44 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 2215-2216 (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, 115 S.Ct. 1624;

see also Morrison, supra, at 609-613, 120 S.Ct. 1740. 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,

115 S.Ct. 1624. 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 **2222 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, 115 S.Ct.

1624. 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 *45

adversely affect the national economy. Id., at 563-567, 115

S.Ct. 1624. 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, 115 S.Ct. 1624.

Later in Morrison, supra, we relied on the same four

considerations to hold that § 40302 of the Violence Against

Women Act of 1994, 108 Stat. 1941, 42 U.S.C. § 13981,

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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 2209,

*46 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,’ ” ante, at 2210. 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

**2223 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, 115

S.Ct. 1624, 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 2209-2210. 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 *47 scheme exclusively for the sake

of reaching intrastate activity, see ante, at 2209, n. 33; ante,

at 2218-2219 (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, 120 S.Ct.

1740 (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, 115

S.Ct. 1624; id., at 578, 115 S.Ct. 1624 (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

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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, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); Wickard, 317

U.S., at 127-128, 63 S.Ct. 82. 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 *48 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 **2224 Lopez, 514 U.S., at 567, 115 S.Ct. 1624;

id., at 579, 115 S.Ct. 1624 (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 2198-2199 (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, 80 S.Ct. 519, 4 L.Ed.2d 524 (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, 115 S.Ct. 1624

(KENNEDY, J., concurring); see also Morrison, supra, at

617-619, 120 S.Ct. 1740; Lopez, supra, at 580, 115 S.Ct.

1624 (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, 105

S.Ct. 1005 (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.

*49 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, 115 S.Ct. 1624 (“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 & **2225

Laughlin Steel, 301 U.S., at 37, 57 S.Ct. 615. 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 *50

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, 115

S.Ct. 1624.

In Lopez and Morrison, we suggested that economic

activity usually relates directly to commercial activity. See

Morrison, 529 U.S., at 611, n. 4, 120 S.Ct. 1740 (intrastate

activities that have been within Congress’ power to

regulate have been “of an apparent commercial

character”); Lopez, 514 U.S., at 561, 115 S.Ct. 1624

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(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, 115 S.Ct. 1624

(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, 115 S.Ct. 1624, established federal regulatory power

over any home consumption of a commodity for which a

national market exists. *51 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, 63 S.Ct. 82. 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, 63 S.Ct. 82. 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- **2226 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. *52 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, 105 S.Ct. 1005 (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 2218-2219 (opinion concurring in judgment),

Congress cannot use its authority under the Clause to

contravene the principle of state sovereignty embodied in

the Tenth Amendment. 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 interstate

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, 117 S.Ct. 2365, 138 L.Ed.2d 914

(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 2219 (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 *53 eighteen years of age.”

18 U.S.C. § 922(b)(1) (1988 ed., Supp. II).)

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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, 115 S.Ct. 1624. 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

**2227 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, 63 S.Ct. 82. 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, 63 S.Ct. 82. 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, 63 S.Ct.

82. 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, 63 S.Ct. 82; see also id., at 128-

129, 63 S.Ct. 82 (“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 *54 for local use and the national market” and

argues that “we have before us findings by Congress to the

same effect.” Ante, at 2208 (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

the 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 that 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, 101 S.Ct.

2352 (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, 120 S.Ct. 1740; id., at 628-636, 120 S.Ct.

1740 (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, 120 S.Ct. 1740 (quoting Lopez, supra, at 557, n. 2,

115 S.Ct. 1624, in turn quoting Heart of Atlanta Motel, Inc.

v. United States, 379 U.S. 241, 273, 85 S.Ct. 348, 13

L.Ed.2d 258 (1964) (Black, J., concurring)). If, as the Court

claims, today’s decision does not *55 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,

**2228 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 or approval 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

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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, 108 S.Ct. 2667,

101 L.Ed.2d 669 (1988), and have no reason to think

otherwise here.

*56 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, 88 S.Ct. 2017 (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 Experiences 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

**2229 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, *57 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.

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 *58 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

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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, 115 S.Ct. 1624 (1995), the Commerce Clause

empowers Congress to regulate the buying and selling of

goods and services trafficked across state lines. Id., at 586-

589, 115 S.Ct. 1624 (concurring opinion). The Clause’s

text, structure, and history all **2230 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, 115 S.Ct. 1624 (THOMAS, J.,

concurring). Commerce, or trade, stood in contrast to

productive activities like manufacturing and agriculture.

Id., at 586-587, 115 S.Ct. 1624 (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, *59 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 2209. 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 *60 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.1 Nor is

it, however, a command to Congress to enact only laws that

are absolutely indispensable to the exercise of an

enumerated power.2

In McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579

(1819), this Court, speaking through Chief Justice

Marshall, set forth a test for determining when an Act

**2231 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

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Congress has exercised its power over interstate commerce

to criminalize trafficking in marijuana across state *61

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 2208-2209 (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, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) (THOMAS,

J., concurring in judgment); see also United States v.

Dewitt, 9 Wall. 41, 44, 19 L.Ed. 593 (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 2203, 2208-

2209 (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.3

Respondents are not regulable simply because they belong

to a large class (local growers and users of marijuana) that

*62 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 2223-2224

(O’CONNOR, J., dissenting). The Court of Appeals found

that respondents’ “limited use is clearly distinct **2232

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 (C.A.9 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).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-

11362.76. Moreover, the Medical Board of California has

issued guidelines for physicians’ cannabis

recommendations, and it sanctions physicians who do not

comply with the guidelines. *63 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, 108 S.Ct. 2667, 101 L.Ed.2d 669

(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/d03189.pdf (all Internet

materials as visited 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, 122

Cal.Rptr.2d 326, 49 P.3d 1067, 1073-1075 (2002); **2233

People v. Trippet, 56 Cal.App.4th 1532, 1549, 66

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Cal.Rptr.2d 559, 560 (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 *64 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/mari

juana/index.html. 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 2226-2228 (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 *65 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, 115 S.Ct. 1624

(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

“appropriat[e] state police powers under the guise of

regulating commerce.” United States v. Morrison, 529 U.S.

598, 627, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)

(THOMAS, J., concurring).

Even if Congress may regulate purely intrastate activity

when essential to exercising **2234 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, 117 S.Ct.

2365, 138 L.Ed.2d 914 (1997); Alden v. Maine, 527 U.S.

706, 732-733, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999);

Garcia v. San Antonio Metropolitan Transit Authority, 469

U.S. 528, 585, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)

(O’CONNOR, J., dissenting); The Federalist No. 33, pp.

204-205 (J. Cooke ed. 1961) (A.Hamilton) (hereinafter The

Federalist).

*66 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.5 Brecht v.

Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123

L.Ed.2d 353 (1993); Hillsborough County v. Automated

Medical Laboratories, Inc., 471 U.S. 707, 719, 105 S.Ct.

2371, 85 L.Ed.2d 714 (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

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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.

*67 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 2208-2209; second, regulation of

respondents’ conduct is essential to regulating the

interstate marijuana market, ante, at 2210; and, third,

regulation of respondents’ conduct is incidental to

regulating the interstate marijuana market, ante, at 2208-

2209. Justice O’CONNOR explains why the majority’s

reasons cannot be reconciled with our recent Commerce

Clause jurisprudence. **2235 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, 120 S.Ct.

1740 (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 activities that do not fall within,

but that affect, the subjects of its other Article I powers.

Lopez, 514 U.S., at 589, 115 S.Ct. 1624 (THOMAS, J.,

concurring). Whatever additional latitude the Necessary

and Proper Clause affords, supra, at 2233-2234, the

question is whether Congress’ legislation is essential to the

regulation of interstate commerce itself-not whether the

legislation extends only to economic *68 activities that

substantially affect interstate commerce. Supra, at 2231;

ante, at 2217-2218 (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 2233. 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 2223-2224 (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.6

The substantial effects test is easily manipulated for

another reason. This Court has never held that Congress

can *69 regulate noneconomic activity that substantially

affects interstate commerce. Morrison, 529 U.S., at 613,

120 S.Ct. 1740 **2236 (“[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, 115 S.Ct.

1624. To evade even that modest restriction on federal

power, the majority defines economic activity in the

broadest possible terms as “ ‘the production, distribution,

and consumption of commodities.’ ”7 Ante, at 2211

(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 2224-2225 (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.

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.8 The majority’s

opinion *70 only illustrates the steady drift away from the

text of the Commerce Clause. There is an inexorable

expansion from “ ‘[c]ommerce,’ ” ante, at 2199, to

“commercial” and “economic” activity, ante, at 2209, and

finally to all “production, distribution, and consumption”

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of goods or services for which there is an “established ...

interstate market,” ante, at 2211. 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 2206-2207; Lopez, 514 U.S., at 573-574, 115 S.Ct.

1624 (KENNEDY, J., concurring). The interconnectedness

of economic activity is not a modern phenomenon

unfamiliar to the Framers. Id., at 590-593, 115 S.Ct. 1624

(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 interstate commerce, but

it has casually allowed the Federal Government to strip

States of their ability to regulate intrastate commerce-not

to mention a host of local activities, **2237 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, 112 S.Ct. 2408, 120

L.Ed.2d 120 (1992) (quoting *71 Gregory v. Ashcroft, 501

U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (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 2208-2209,

2209-2210. I have already explained why the CSA’s ban

on local activity is not essential. Supra, at 2233. 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

2209. 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 2209. In Lopez and Morrison, the parties

asserted facial challenges, claiming “that a particular

statute or provision fell outside Congress’ commerce

power in its entirety.” Ibid. Here, by contrast, respondents

claim only that the CSA falls outside Congress’ commerce

power as applied *72 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.” Ibid.; see also Perez v. United States, 402 U.S.

146, 154, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Maryland

v. Wirtz, 392 U.S. 183, 192-193, 88 S.Ct. 2017, 20 L.Ed.2d

1020 (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, 91 S.Ct. 1357 (emphasis

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, 88 S.Ct. 2017. Ante, at

2223 (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 2231-2232. 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 or more of

**2238 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. 220, 320-321, and n. 9, 125 S.Ct. 738, 779, n. 9,

160 L.Ed.2d 621 (2005) (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

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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, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960),

including the Commerce Clause, see Katzenbach v.

McClung, 379 U.S. 294, 295, 85 S.Ct. 377, 13 L.Ed.2d 290

(1964); Heart of Atlanta *73 Motel, Inc. v. United States,

379 U.S. 241, 249, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964);

Wickard v. Filburn, 317 U.S. 111, 113-114, 63 S.Ct. 82, 87

L.Ed. 122 (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 2209, 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, 115 S.Ct. 1624 (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, 115 S.Ct. 1624 (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 *74 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, 115 S.Ct. 1624

(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 **2239 Union.” United States v.

Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483,

502, 121 S.Ct. 1711, 149 L.Ed.2d 722 (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.

All Citations

545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1, 73 USLW 4407,

05 Cal. Daily Op. Serv. 4725, 2005 Daily Journal D.A.R.

6530, 18 Fla. L. Weekly Fed. S 327

Footnotes *

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

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.

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2

1913 Cal. Stats. ch. 342, § 8a; see also Gieringer, The Origins of Cannabis Prohibition in California, 21-23 (rev. Mar. 2005), available at http://www.canorml.org/background/caloriginsmjproh.pdf (all Internet materials as visited June 2, 2005, and available in Clerk of Court’s case file).

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.

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).

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).

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).

7

§ 11362.5(e).

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.

9

See D. Musto & P. Korsmeyer, The Quest for Drug Control 60 (2002) (hereinafter Musto & Korsmeyer).

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.

11

Pure Food and Drugs Act of 1906, ch. 3915, 34 Stat. 768, repealed by Act of June 25, 1938, ch. 675, § 902(a), 52 Stat. 1059.

12

See United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 (1919); Leary v. United States, 395 U.S. 6, 14-16, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).

13

See Doremus, 249 U.S., at 90-93, 39 S.Ct. 214.

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).

15

Leary, 395 U.S., at 14-16, 89 S.Ct. 1532.

16 Grinspoon & Bakalar 8.

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17

Leary, 395 U.S., at 16-18, 89 S.Ct. 1532.

18

Musto & Korsmeyer 32-35; 26 Almanac 533. In 1973, the Bureau of Narcotics and Dangerous Drugs became the DEA. See Reorg. Plan No. 2 of 1973, § 1, 28 CFR § 0.100 (1973).

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.

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).

21

See United States v. Moore, 423 U.S. 122, 135, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); see also H.R. Rep., at 22, U.S.Code Cong. & Admin.News 1970, pp. 4566, 4596.

22

Id., at 61, U.S.Code Cong. & Admin.News 1970, pp. 4566, 4629 (quoting letter from Roger O. Egeberg, M.D., to Hon. Harley O. Staggers (Aug. 14, 1970)).

23

Starting in 1972, the National Organization for the Reform of Marijuana Laws 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 (C.A.1 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).

24

United States v. Lopez, 514 U.S. 549, 552-558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); id., at 568-574, 115 S.Ct. 1624 (KENNEDY, J., concurring); id., at 604-607, 115 S.Ct. 1624 (SOUTER, J., dissenting).

25

See Gibbons v. Ogden, 9 Wheat. 1, 224, 6 L.Ed. 23 (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).

26

See Lopez, 514 U.S., at 553-554, 115 S.Ct. 1624; id., at 568-569, 115 S.Ct. 1624 (KENNEDY, J., concurring); see also Granholm v. Heald, 544 U.S. 460, 472-473, 125 S.Ct. 1885, 1895-1896, 161 L.Ed.2d 796 (2005).

27 Lopez, 514 U.S., at 554, 115 S.Ct. 1624; see also Wickard v. Filburn, 317 U.S. 111, 121, 63 S.Ct. 82, 87 L.Ed. 122 (1942) (“It was not

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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)).

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, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (discussing the “market value” of marijuana); id., at 790, 114 S.Ct. 1937 (REHNQUIST, C. J., dissenting); id., at 792, 114 S.Ct. 1937 (O’CONNOR, J., dissenting); Whalen v. Roe, 429 U.S. 589, 591, 97 S.Ct. 869, 51 L.Ed.2d 64 (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, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (referring to the purchase of drugs on the “retail market”).

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, 115 S.Ct. 1624 (KENNEDY, J., concurring) (“In the Lottery Case, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (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, 63 S.Ct. 82 (“The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon”).

30

See id., at 125, 63 S.Ct. 82 (recognizing that Filburn’s activity “may not be regarded as commerce”).

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), http://www.whitehousedrugpolicy.gov/pub lications/factsht/marijuana/index.html.

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 (C.A.9 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 2226-2228 (opinion of O’CONNOR, J.); post, at 2233 (opinion of THOMAS, J.). 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 2228 (opinion of O’CONNOR, J.). 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.

33

See n. 21, supra (citing sources that evince Congress’ particular concern with the diversion of drugs from legitimate to illicit channels).

34

The principal dissent asserts that by “[s]eizing upon our language in Lopez,” post, at 2223 (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. Ibid. (O’CONNOR, J., dissenting).

35

Lopez, 514 U.S., at 560, 115 S.Ct. 1624; see also id., at 573-574, 115 S.Ct. 1624 (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”).

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).

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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 (C.A.9 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.

38

That is so even if California’s current controls (enacted eight years after the Compassionate Use Act was passed) are “effective,” as the dissenters would have us blindly presume, post, at 2227 (opinion of O’CONNOR, J.); post, at 2232, 2235 (opinion of THOMAS, J.). 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 2232 (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 2219 (SCALIA, J., concurring in judgment) (quoting McCulloch v. Maryland, 4 Wheat. 316, 424, 4 L.Ed. 579 (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 2234 (dissenting opinion).

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)-(B) (West Supp.2005).

40

See, e.g., United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 (1919).

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 Petitioners 18-19 (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).

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.

43

See, e.g., People ex rel. Lungren v. Peron, 59 Cal.App.4th 1383, 1386-1387, 70 Cal.Rptr.2d 20, 23 (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”).

1 See also Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 584-585, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)

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(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”).

2

Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (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, 63 S.Ct. 82. 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, 63 S.Ct. 82.

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, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). See post, at 2226 (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 extensive federal regulation, recast Lopez as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act” (citation omitted)). 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, 115 S.Ct. 1624 (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 1,000 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 2226, 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.

1

McCulloch v. Maryland, 4 Wheat. 316, 419-421, 4 L.Ed. 579 (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).

2

McCulloch, supra, at 413-415; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, p. 162 (1985).

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, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). In those cases, we held that Congress, in enacting the statutes at issue, had exceeded its Article I powers.

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).

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, 115 S.Ct. 1624 (THOMAS, J., concurring) (discussing Congress’ limited ability to establish nationwide criminal prohibitions); Cohens v. Virginia, 6 Wheat. 264, 426-428, 5 L.Ed. 257 (1821) (finding it “clear, that Congress 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).

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 2213, 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

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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.

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.

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”).

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