Freeman

ARTICLE

Putting the Framers' Intent Back Into the Commerce Clause

United States v. Lopez Limits the Commerce Power

DECEMBER 01, 1996 by ERIC HAGEN

Mr. Hagen is a third-year law student at Pepperdine University School of Law and is an editor of the Pepperdine Law Review. He is the co-author of An Endless Series of Hobgoblins: The Science and Politics of Environmental Health Scares (FEE, 1995).

On April 26, 1995, for the first time in almost 60 years, the U.S. Supreme Court invalidated a federal statute on grounds that Congress had no authority under the Commerce Clause of the U.S. Constitution to pass the law. The case, United States v. Lopez,[1] involved a challenge to the Gun-Free School Zones Act,[2] a federal criminal statute that made it a federal offense for anyone to possess a firearm within 1,000 feet of a school. The Court held that the statute exceeded Congress’s authority to regulate interstate commerce because possession of a gun in a local school zone was not economic activity and did not substantially affect interstate commerce.

Under the Constitution as originally written and understood, the invalidation of the statute in Lopez would have received little attention. As James Madison, the principal draftsman of the Constitution, wrote: 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.[3] For the first 150 years of the Republic, this admonition had a profound effect. Congress, for the most part, refrained from creating the kinds of laws that compose today’s gargantuan regulatory state. When Congress attempted to flex its regulatory muscle, the Supreme Court would step in and invalidate the regulations, either for regulating activities with too indirect an effect on interstate commerce or for regulating noncommercial activities, such as mining or manufacturing.[4]

The Supreme Court abruptly departed from this original understanding of the commerce power in the years following President Franklin D. Roosevelt’s infamous court-packing scheme of 1937.[5] Along with the Court’s ideological shift began the systematic process of erasing the previous limitations that had restrained Congress’s regulatory power.[6] As a result, congressional authority under the Commerce Clause emerged as virtually unlimited. In Lopez, the Court, at long last, acknowledged that some limits still exist, but how these limits are defined remains somewhat uncertain.

The Lopez Definition of Commerce

Chief Justice Rehnquist, writing for the majority in Lopez, identified three broad categories of activity subject to congressional regulation under the Commerce Clause: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) activities that substantially affect interstate commerce.[7]

The first two categories are fairly straightforward: Congress may regulate commercial channels, such as highways, waterways, and air traffic; it may also regulate and protect instrumentalities within such channels, such as people, machines, and vehicles.[8] The third category, as the Court readily admitted, is more nebulous.[9] Nevertheless, the Court gave some hints as to what is required for a federal statute in this third category to be upheld as a valid exercise of Congress’s commerce power.

The Court first noted that a regulated activity’s impact on interstate commerce must be substantial and not merely incidental.[10] The Court also affirmed that when Congress exercises its commerce authority, the regulations it promulgates must have some real connection to commercial or economic activity.[11] Justice Breyer, the principal dissenter, sharply criticized this commercial-noncommercial distinction as a return to an untenable, pre-Depression version of the Commerce Clause.[12] Of course, the flaw in Justice Breyer’s argument is that he seems to suggest that the Court should ignore jurisprudential errors simply because they have become entrenched. In light of this quandary, it is uncertain whether activities that are not clearly commercial are still subject to regulation; however, it may be inferred from Lopez that any connection to economic activity must at least be more obvious than the link between interstate commerce and guns in schools.

The Court next examined two fatal flaws in the Gun-Free School Zones Act. First, the statute contained no jurisdictional element to ensure, on a case-by-case basis, that the gun possession in question affected interstate commerce; and second, Congress made no formal findings regarding the effects of gun possession in school zones on interstate commerce.[13] The majority ruling did not state that the presence of a jurisdictional nexus is conclusive of a statute’s validity, but the absence of any such nexus raises serious questions as to whether the law goes beyond the enumerated power under which it was enacted. With regard to congressional findings, the Court recognized that while such findings are not dispositive, they may have some relevance in establishing a link to interstate commerce.[14]

Finally, the Court noted that states have historically possessed primary authority for regulating areas such as criminal law, family law, and education.[15] The Court asserted that if no limits were placed on Congress’s commerce power, then the federal government would usurp these traditional state functions and thereby undermine the structural guarantee of freedom provided by federalism.[16] The Court thereby accepted the Framers’ understanding that preventing the accumulation of excessive power in the federal government reduces the risk of tyranny.

It is unlikely that Lopez goes so far as to prohibit direct federal regulation of traditional state functions, especially when the Court rejected such an approach in Garcia v. San Antonio Metropolitan Transit Authority.[17] Nevertheless, if a federal statute were to regulate an activity that has traditionally been the subject of state control, the Court is perhaps now more likely to invalidate the law. This increased likelihood applies especially if the federal regulation disrupts the federal-state balance by foreclosing the states from perform[ing] their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.[18] As Justices Kennedy and O’Connor observed in their concurrence, federalism has a utilitarian function by discouraging centrally designed and controlled social policies that otherwise would lead to bureaucratic nightmares and Kafkaesque regulation.

Assessing Lopez

The precedential value of Lopez remains uncertain. Some commentators insist that the decision will have only a trivial impact,[19] others suggest that Lopez may have far-reaching consequences.[20] Several statutes have been analyzed under Lopez in the eighteen months since the decision was announced. While most courts have upheld a wide variety of federal regulations by construing Lopez narrowly, the courts are not without dissension.

For example, federal district courts are split with regard to the constitutionality of the Child Support Recovery Act,[21] which made it a federal offense to willfully withhold an overdue support obligation from a child residing in another state. Some courts have invalidated the statute as beyond the scope of the commerce power and in violation of the principles of federalism.[22] In particular, these courts have observed that Lopez explicitly singled out federal regulation of family-law matters, such as child custody, as an unreasonable encroachment on state sovereignty. Other courts have upheld the statute, asserting that the regulation of child support payments has a substantial effect on the national economy.[23] Their conclusion is based on the fact that Congress produced an abundance of legislative history regarding such economic effects and that the statute ensures, on a case-by-case basis, a jurisdictional nexus to interstate commercial activity.

The cases upholding the Child Support Recovery Act appear to run contrary to the underlying spirit of Lopez, which endeavored to hold Congress to its constitutional limits and to restore some balance to the power relationship between the federal and state governments. However, as Justice Thomas foreshadowed in his concurrence in Lopez, the analytically boundless nature of the substantial effects test encourages decisions that are inconsistent with the principles espoused in Lopez,[24] so it is perhaps not surprising that courts are confused.

It should be further noted that courts do not necessarily have to invalidate a federal statute to prevent a significant intrusion on the traditional federal-state balance. A Ninth Circuit case[25] involving a federal arson statute[26] is illustrative in this regard. Like the statute at issue in Lopez, the activity regulated by the arson statute was noncommercial and Congress revealed no connection to interstate commerce through formal findings. Unlike Lopez, however, the arson statute contained a jurisdictional element that required, in each case, a connection to interstate commerce. Rather than invalidate the law, the court merely overturned a conviction on grounds that the jurisdictional requirement was not satisfied. Thus, courts have the option of using narrow statutory construction to remain true to the values of Lopez.

Original Intent Revisited

The Rehnquist Court could have decided Lopez differently, consistent with the modern trend of deferring to congressional actions. However, instead of turning the Commerce Clause into a general police power, the Court declared that the commerce power has limits. Contrary to the Court’s case law of the past 60 years, this interpretation is much more consistent with the original purpose of the commerce power, which was primarily a means of eliminating trade barriers among the states.[27] Thus, in the wake of Lopez, Congress must rethink its belief that it has the authority to intervene in every national problem—a welcome notion in these days of big government.

Lopez undoubtedly gives rise to legal uncertainty, for one may no longer assume that the Court will routinely accept that Congress acted within its power. Such ambiguity may present an obstacle to lawmakers but, as Chief Justice Rehnquist noted, any advantage derived from eliminating this uncertainty would be at the expense of the Constitution’s delicate system of enumerated powers. []


1.   115 S. Ct. 1624 (1995).

2.   18 U.S.C. \s 922(q) (1988 ed., Supp. V).

3.   James Madison, The Federalist No. 45 (Clinton Rossiter, ed., 1961), pp. 292-93.

4.   See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 303-04 (1936) (invalidating the Bituminous Coal Conservation Act of 1935 in part because the act regulated production rather than trade); United States v. Butler, 297 U.S. 1, 68 (1936) (invalidating the Agricultural Adjustment Act because it invaded the reserved powers of the states); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 550 (1935) (striking down a Live Poultry Code authorized by the National Industrial Recovery Act of 1933 because the activity being regulated affected interstate commerce only indirectly).

5.   William E. Leuchtenburg, The Origins of Franklin D. Roosevelt’s `Court Packing’ Plan, Supreme Court Review (1966), p. 347.

6.   The watershed decision was NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), wherein the Court upheld the National Labor Relations Act.

7.   United States v. Lopez, 115 S. Ct. 1624, 1629 (1995) (citations omitted).

8.   Id. at 1629-30.

9.   Id. at 1630. Conceding that the majority ruling gives rise to legal uncertainty, Chief Justice Rehnquist noted that ever since Marbury v. Madison determined that it was the judiciary’s duty to say what the law is, such uncertainty has been inevitable. Id. at 1633 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

10.   Id. at 1630. The Court stated that Congress may not use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities. Id. (citing Maryland v. Wirtz, 392 U.S. 183, 196 n. 27 [1968]).

11.   Id. at 1630-31.

12.   Id. at 1663 (Breyer, J., dissenting).

13.   Id. at 1631-32.

14.   Id.

15.   Id. at 1632-33.

16.   Id.

17.   460 U.S. 528, 546-47 (1985), overruling National League of Cities v. Usery, 426 U.S. 833 (1976).

18.   Lopez, 115 S. Ct. at 1641 (Kennedy, J., concurring).

19.   Lino A. Graglia, Case Studies, National Review, June 26, 1995, p. 32.

20.   David G. Savage, High Court to Rule on Law Barring Guns Near Schools, Los Angeles Times, April 19, 1994, p. A17; Arthur Schlesinger, Jr., In Defense of Government, Wall Street Journal, June 7, 1995, p. 14.

21.   18 U.S.C. \s 228 (1995).

22.   See United States v. Mussari, 894 F. Supp. 1360, 1368 (D. Ariz. 1995); United States v. Schroeder, 894 F. Supp. 360, 368-69 (D. Ariz. 1995); United States v. Bailey, 902 F. Supp. 727, 730 (W.D. Tex. 1995).

23.   See United States v. Hampshire, 892 F. Supp. 1327, 1330 (D. Kan. 1995); United States v. Sage, 906 F. Supp. 84, 88-89 (D. Conn. 1995).

24.   United States v. Lopez, 115 S. Ct. 1624, 1650 (1995) (Thomas, J., concurring).

25.   United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995). In Pappadopoulos, the government argued that federal jurisdiction was conferred upon an arson prosecution because the private residence that was destroyed received natural gas from out-of-state sources. Id. at 525. The court held that this was an insufficient connection to interstate commerce. Id. at 527.

26.   18 U.S.C. \s 844(i) (1995).

27.   Roger Pilon, Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles, Notre Dame Law Review, 68 (1993), p. 534.

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