Following the death of Justice Scalia, there have been numerous tributes – from articles and eulogies to a renamed law school. But perhaps none is more fitting than a judicial opinion from the Ninth Circuit, which employed the kind of legal reasoning and statutory analysis that the Justice championed.

Justice Scalia’s supporters revel in providing counterexamples to confound his critics who viewed him as a knuckle-dragging puritan. His defense of flag burning and his Fourth Amendment jurisprudence are two of the most frequent rejoinders to the Scalia qua legislator trope.

In United States v. McIntosh, Judge Diarmuid O'Scannlain writes his performative tribute to the Justice with a textbook case of applying neutral principles to reach a conclusion possibly contrary to his beliefs.[1]

McIntosh involved a challenge to the Department of Justice’s prosecution of individuals involved in the marijuana trade in violation of the federal Controlled Substances Act (CSA). Given the Supreme Court’s opinion in Gonzales v. Raich a direct attack on the CSA’s impermissible regulation of intrastate conduct has been foreclosed,[2] so, instead, the defendants attacked the prosecution on the ground that Congress did not authorize the Department of Justice to use federal funds to frustrate states that have legalized medical marijuana. 

Turning a seemingly straightforward criminal prosecution into a separation-of-powers inquiry may seem a stretch. How is it that an individual citizen can have standing to challenge violations of the structure of government?

The answer—which Justice Scalia was so fond of articulating—is that “the Constitution's core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights.”  NLRB v. Noel Canning, 134 S.Ct. 2550, 2592-93 (2014) (Scalia, J., concurring in the judgment).  As Justice Scalia explained, “the constitutional structure of our Government is designed first and foremost not to look after the interests of the respective branches, but to protec[t] individual liberty.” Id. at 2593 (internal quotation marks omitted). Guided by Justice Scalia’s principles, the Ninth Circuit panel concluded that separation-of-powers properly applies to protect individual rights.

Having followed Justice Scalia’s reasoning in resolving the standing inquiry, the panel went on to apply the Justice’s textualist principles in conducting the substantive statutory analysis.

The relevant statutory text, found in a rider to Congress’s December 2014 omnibus appropriations bill, reads, “[n]one of the funds made available in this Act to the Department of Justice may be used, with respect to [Medical Marijuana States] to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

The DOJ argued that its CSA prosecutions do not actually “prevent” states from implementing their medical marijuana laws, because its prosecutions are not conducted against states—only against individual citizens. The Ninth Circuit panel did not agree.

Applying Justice Scalia’s oft-repeated exhortation that, in statutory construction, “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning”[3]—and armed with a host of dictionaries—Judge O’Scannlain noted that, to “implement” their medical marijuana laws, states must be allowed to give those laws practical effect.  And, of course, it is difficult to conceive of a more effective means of frustrating the “practical effect” of medical marijuana legalization than to criminally prosecute those who use and distribute medical marijuana.

Finally, in a coda that would make Justice Scalia proud, the panel explicitly refused to consider legislative history in interpreting the relevant statute. Citing then-Judge Scalia, Jude O’Scannlain noted that:

As the Supreme Court has said (in a case involving precisely the issue of Executive compliance with appropriation laws, although the principle is one of general applicability): “legislative intention, without more, is not legislation.” The issue here is not how Congress expected or intended the Secretary to behave, but how it required him to behave, through the only means by which it can (as far as the courts are concerned, at least) require anything—the enactment of legislation. Our focus, in other words, must be upon the text of the appropriation.


Ultimately, the McIntosh opinion is a textbook example of how a court should properly insert itself into hot-button social issues. Rather than as navel-gazers, pondering the justness of medical marijuana legalization, the panel members—guided by Justice Scalia—approached the issue as sober jurists, applying precedent and sound legal reasoning to the case before it.


[1] It is worth mentioning that I have no idea what the judge thinks about the wisdom vel non of marijuana prohibition. An inability to discern Judge O’Scannlain normative preferences from his legal opinion is surely a good sign. Contrast with Chicago Board of Realtors, Inc. v. City of Chicago, 819 F.2d 732 (7th Cir. 1987) (Posner, J., concurring).

[2] Justice Thomas’s dissent in that case—based on his originalist interpretation of the Commerce Clause—provides more ammo to frustrate those who contend that jurists only vote their alleged political preferences.

[3] Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 876 (2014) (quoted in McIntosh, Slip Op. at 24.)