Publications
Gonzales v. Raich (03-1454), Spector v. Norwegian Cruise Lines, Ltd. (03-1388), Alaska v. United States (128 Orig.) and order list
Greetings, Court Fans!
As the Term draws to a close, we can expect lots of decisions in “hard” cases, spawning multiple opinions and, occasionally, the need for a chart to discern the holdings! Yesterday’s opinions were no exception, so brace yourself. We’ll do our best to be brief.
In Gonzales v. Raich (03-1454), the Court, over strong dissents, rejected an as-applied attack on the federal Controlled Substances Act (“CSA”) under the Commerce Clause by individuals growing and using marijuana for medicinal purposes pursuant to California’s Compassionate Use Act of 1996, which permits regulated use of marijuana by individuals who are “seriously ill,” and meet certain criteria, including having a physician recommendation. The marijuana at issue is grown and used entirely within California and is not intended for, and under California law is precluded from entering, the stream of interstate commerce. The opinion, concurrence and dissents contain a fascinating exploration of the history of the Commerce Clause and drug regulation in the U.S, to which this update simply cannot do justice.
In short, the Court, led by Justice Stevens, found that Congress had the power to regulate the interstate markets for medicinal substances and this power “encompasses the portions of the markets that are supplied with drugs produced and consumed locally.” The Court explained that the Commerce Clause permits federal regulation of (1) the channels of commerce; (2) the instrumentalities, persons and things in commerce; and (3) activities that substantially affect interstate commerce. Here, only category three applies to the respondents’ activities because they are purely local in nature (and are probably not commerce). The Court analogized this case to Wickard v. Filburn, where it rejected a Commerce Clause attack on federal regulations designed to control the volume of wheat produced in order to avoid surpluses and accompanying depressed prices. In that case, a farmer named Filburn argued that the regulations allotting him a certain acreage of wheat were invalid to the extent that they applied to bar him from growing additional wheat for use on his own farm. The Court disagreed, based on evidence that home-consumed wheat had a substantial influence on the overall price and market conditions for wheat. Just like the wheat in Wickard, the Court concluded that Congress could rationally find that home-grown marijuana could have a substantial effect on the national market for marijuana. Moreover, because of the difficulties in distinguishing home-grown California marijuana from marijuana grown elsewhere, the failure to regulate intrastate manufacture and distribution of marijuana “would leave a gaping hole in the CSA.” The Court emphasized that the CSA provides a comprehensive structure to regulate interstate commerce in drugs, classifying all drugs into schedules, each with its own set of controls on manufacture, distribution and use. “That the regulation ensnares some purely intrastate activity is of no moment.”
Scalia concurred in the judgment, but wrote separately to stress that the CSA’s application to purely local conduct is not authorized by the Commerce Clause directly. For Scalia, the Court’s Commerce Clause cases are misleading because the “substantially affects” test is really derived from the Necessary and Proper Clause. Under this view, regulation of an intrastate activity that is essential to comprehensive regulation of interstate commerce is permissible “even though the intrastate activity does not itself ‘substantially affect’ interstate commerce.” The CSA’s application to local conduct is necessary to achieve the CSA’s goal of prohibiting interstate commerce in marijuana and is “appropriate” and “plainly adapted” for that purpose.
O’Connor, joined by the Chief and Thomas, dissented, arguing that the Court’s analysis will gut the limits on federal power and destroy the role of states as laboratories. The dissenters take the majority to task for focusing on the validity of the entire law, rather than the law as applied to the plaintiffs in this case — individuals using medical marijuana pursuant to state law. The government submitted no evidence (as opposed to conclusory congressional findings) that this use impacts interstate commerce — the Court merely assumes that it does, unlike in Wickard where the parties stipulated to interstate effects. The majority also encourages improper regulation of local conduct by packaging it with broader regulation of interstate commerce. “[A]llowing Congress to set the terms of the constitutional debate in this way . . . is tantamount to removing meaningful limits on the Commerce Clause.” Thomas also penned a separate, typically history-based dissent that decried the end or our federalist system: “If Congress can regulate this under the Commerce Clause, it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”
Next, in Spector v. Norwegian Cruise Lines, Ltd. (03-1388), a very splintered Court held that Title III of the Americans with Disabilities Act (ADA), which bars discrimination against the disabled in “public accommodations” and “specified public transportation,” applies in some instances to foreign cruise ships in U.S. waters. Spector and others had sued NCL seeking its compliance with ADA requirements for “reasonable modifications” and the removal of physical barriers where “readily achievable.” Relying on Court precedents requiring a clear statement of congressional intent to apply U.S. laws to foreign vessels, the Fifth Circuit dismissed the case. The Court reversed, but you’ll need a scorecard to keep the opinions straight. The actual majority holding, taken from Justice Kennedy’s opinion (where he was joined by Stevens, Souter, Ginsburg, and Breyer) is fairly simple: Title III’s definitions of “public accommodations” and “specified public transportation” do not expressly mention cruise ships, but “there can be no serious doubt” that cruise ships are covered “under conventional principles of interpretation” (so conventional that Kennedy does not discuss them). The majority, however, read the “readily achievable” provision as exempting changes that would violate international law or compromise safety, issues for remand.
Beyond that, the opinions get more complicated. Kennedy (with Stevens and Souter) noted that the clear-statement rule applied where a law would affect the internal affairs of foreign vessels (such as labor laws, where it made sense to defer to the law of the flag state). The rule could still be relevant to specific ADA requirements: For example, ADA provisions that would require permanent and significant structural modifications, if they met the majority’s reading of “readily achievable,” might implicate fundamental issues of ship design, an internal matter (This is where Ginsburg and Breyer jumped ship, so to speak, because they read the clear-statement rule as deriving solely from the desire to avoid conflicts with international law — but if there were no international legal issues, which the majority had interpreted out of the statute, internal affairs should be irrelevant). So on remand, these Justices wrote that the Fifth Circuit should determine, provision by provision, if any Title III requirements interfere with the internal affairs of foreign ships. Justice Thomas joined them on this point only, writing that the Fifth Circuit should consider only those claims that did not pertain to the structure of ships.
Justice Scalia, joined by the Chief, O’Connor, and Thomas, dissented on the ground that there was no way to square Title III with the clear-statement rule because the statute necessarily intruded on internal affairs such as ship design. Minus Thomas, the dissenters rejected the Kennedy plurality’s remand guidance, because the belief that congressional intent varied section-by-section was “delusional.” The statute provided an expansive list of public accommodations and specified public transportation (that did not mention foreign cruise ships), and Congress has demonstrated in other statutes that it knows how to express its intent to apply U.S. law to foreign cruise ships. So Scalia, the Chief and O’Connor would not extend Title III to these ships at all.
In the final case of the day, Alaska v. United States (128 Orig.), the Court upheld a Special Master’s report recommending summary judgment for the United States in a dispute over submerged lands in the Alexander Archipelago and Glacier Bay National Park. States presumptively own lands beneath inland navigable waters, but the Court, led by Justice Kennedy, agreed with the Special Master that (1) the Alexander Archipelago lands were not beneath inland waters and (2) the United States had expressly retained title to the Glacier Bay lands when Alaska became a state. Justice Scalia (joined by the Chief and Thomas) dissented as to Glacier Bay, finding no evidence that the United States retained title and pointedly mocking the majority’s apparent reliance on other factors in its decision (such as what Scalia called the majority’s “Ursine Rhapsody,” in which it implied that federal ownership was needed to protect brown bears that swim in the Bay). If you like sarcasm (and who doesn’t?), you will enjoy his dissent.
The Court’s order list included one cert grant, in Will v. Hallock (04-1332), where it will consider the following questions: (1) Whether a final judgment in an action brought under [FTCA] Section 1346(b) dismissing the claim on the ground that relief is precluded by one of the FTCA’s exceptions to liability, 28 U.S.C. 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim; (2) Did the Court of Appeals have jurisdiction over the interlocutory appeal of the District Court’s order denying a motion to dismiss under the FTCA’s judgment bar, 28 U.S.C. 2676?
The Court also invited the SG to weigh in on the cert petition in Long Island Care at Home v. Coke (04-1315), which presents the following questions: (1) Whether 29 C.F.R. 552.109(a) — which has exempted third-party employers of home health care aides from federal minimum wage and overtime pay requirements for the past 30 years — warrants judicial deference and is therefore valid and enforceable; and (2) Whether a court may deny Skidmore deference to an agency regulation, and thereby invalidate the rule, without first affording interested parties an opportunity to submit evidence in support of the regulation’s “power to persuade.”
We’ll be back with more next week. Thanks for reading!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
