Page:United States Reports, Volume 545.djvu/81

33 Cite as: 545 U. S. 1 (2005) Scalia, J., concurring in judgment rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undis puted magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases en dorsing its reasoning foreclose that claim. V Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity de fense. These theories of relief were set forth in their com plaint 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 proceed ings consistent with this opinion. It is so ordered. Justice Scalia, concurring in the judgment. I agree with the Court’s holding that the Controlled Sub stances Act (CSA) may validly be applied to respondents’ cultivation, distribution, and possession of marijuana for per sonal, medicinal use. I write separately because my under standing 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 (1971), our cases have mechanically recited that the Commerce Clause per mits congressional regulation of three categories: (1) the