Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

In United States v. Lopez1 the Court, for the first time in almost sixty years,2 invalidated a federal law as exceeding Congress’s authority under the Commerce Clause. The statute made it a federal offense to possess a firearm within 1,000 feet of a school.3 The Court reviewed the doctrinal development of the Commerce Clause, especially the effects and aggregation tests, and reaffirmed that it is the Court’s responsibility to decide whether a rational basis exists for concluding that a regulated activity sufficiently affects interstate commerce when a law is challenged.4 As noted previously, the Court’s evaluation started with a consideration of whether the legislation fell within the three broad categories of activity that Congress may regulate or protect under its commerce power: (1) the use of the channels of interstate commerce; (2) the use of instrumentalities of interstate commerce; or (3) activities that substantially affect interstate commerce.5

The Court reasoned that the criminalized activity did not implicate the first two categories.6 As for the third, the Court found an insufficient connection. First, a wide variety of regulations of “intrastate economic activity” has been sustained where an activity substantially affects interstate commerce. But the statute being challenged, the Court continued, was a criminal law that had nothing to do with “commerce” or with “any sort of economic enterprise.” Therefore, it could not be sustained under precedents “upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” 7 The provision did not contain a “jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” 8 The existence of such a section, the Court implied, would have saved the constitutionality of the provision by requiring a showing of some connection to commerce in each particular case.

Finally, the Court rejected arguments of the government and dissent that there was a sufficient connection between the offense and interstate commerce.9 At base, the Court’s concern was that accepting the attenuated connection arguments presented would eviscerate federalism. The Court stated:

Whether Lopez indicated a determination by the Court to police more closely Congress’s exercise of its commerce power, so that it would be a noteworthy case,11 or whether it was rather a “warning shot” across the bow of Congress, urging more restraint in the exercise of power or more care in the drafting of laws, was not immediately clear. The Court’s decision five years later in United States v. Morrison,12 however, suggests that stricter scrutiny of Congress’s exercise of its commerce power is the chosen path, at least for legislation that falls outside the realm of economic regulation.13 The Court will no longer defer, via rational basis review, to every congressional finding of substantial effects on interstate commerce, but instead will examine the nature of the asserted nexus to commerce, and will also consider whether a holding of constitutionality is consistent with its view of the commerce power as being a limited power that cannot be allowed to displace all exercise of state police powers.

In Morrison the Court applied Lopez principles to invalidate a provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Gender-motivated crimes of violence “are not, in any sense of the phrase, economic activity,” 14 the Court explained, and there was allegedly no precedent for upholding commerce-power regulation of intrastate activity that was not economic in nature. The provision, like the invalidated provision of the Gun-Free School Zones Act, contained no jurisdictional element tying the regulated violence to interstate commerce. Unlike the Gun-Free School Zones Act, the VAWA did contain “numerous” congressional findings about the serious effects of gender-motivated crimes,15 but the Court rejected reliance on these findings. “The existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. [The issue of constitutionality] is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.” 16

The problem with the VAWA findings was that they “relied heavily” on the reasoning rejected in Lopez—the “but-for causal chain from the initial occurrence of crime . . . to every attenuated effect upon interstate commerce.” As the Court had explained in Lopez, acceptance of this reasoning would eliminate the distinction between what is truly national and what is truly local, and would allow Congress to regulate virtually any activity and basically any crime.17 Accordingly, the Court “reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Resurrecting the dual federalism dichotomy, the Court could find “no better example of the police power, which the Founders denied the national government and reposed in the States, than the suppression of violent crime and vindication of its victims.” 18

Yet, the ultimate impact of these cases on Congress’s power over commerce may be limited. In Gonzales v. Raich,19 the Court reaffirmed an expansive application of Wickard v. Filburn, and signaled that its jurisprudence is unlikely to threaten the enforcement of broad regulatory schemes based on the Commerce Clause. In Raich, the Court considered whether the cultivation, distribution, or possession of marijuana for personal medical purposes pursuant to the California Compassionate Use Act of 1996 could be prosecuted under the federal Controlled Substances Act (CSA).20 The respondents argued that this class of activities should be considered as separate and distinct from the drug-trafficking that was the focus of the CSA, and that regulation of this limited non-commercial use of marijuana should be evaluated separately.

In Raich, the Court declined the invitation to apply Lopez and Morrison to select applications of a statute, holding that the Court would defer to Congress if there was a rational basis to believe that regulation of home-consumed marijuana would affect the market for marijuana generally. The Court found that there was a “rational basis” to believe that diversion of medicinal marijuana into the illegal market would depress the price on the latter market.21 The Court also had little trouble finding that, even in application to medicinal marijuana, the CSA was an economic regulation. Noting that the definition of “economics” includes “the production, distribution, and consumption of commodities,” 22 the Court found that prohibiting the intrastate possession or manufacture of an article of commerce is a rational and commonly used means of regulating commerce in that product.23

The Court’s decision also contained an intertwined but potentially separate argument that Congress had ample authority under the Necessary and Proper Clause to regulate the intrastate manufacture and possession of controlled substances, because failure to regulate these activities would undercut the ability of the government to enforce the CSA generally.24 The Court quoted language from Lopez that appears to authorize the regulation of such activities on the basis that they are an essential part of a regulatory scheme.25 Justice Antonin Scalia, in concurrence, suggested that this latter category of activities could be regulated under the Necessary and Proper Clause regardless of whether the activity in question was economic or whether it substantially affected interstate commerce.26

Footnotes

1

514 U.S. 549 (1995). The Court was divided 5-4, with Chief Justice William Rehnquist writing the opinion of the Court, joined by Justices Sandra O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, with dissents by Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg.

2

Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down regulation of mining industry as outside of Commerce Clause).

3

18 U.S.C. § 922(q)(1)(A). Congress subsequently amended the section to make the offense jurisdictionally turn on possession of “a firearm that has moved in or that otherwise affects interstate or foreign commerce.” Pub. L. No. 104–208, 110 Stat. 3009–370.

4

514 U.S. at 556–57, 559.

5

Id. at 558–59. For an example of regulation of persons or things in interstate commerce, see Reno v. Condon, 528 U.S. 141 (2000) (information about motor vehicles and owners, regulated pursuant to the Driver’s Privacy Protection Act, and sold by states and others, is an article of commerce).

6

514 U.S. at 559.

7

Id. at 559–61.

8

Id. at 561.

9

Id. at 563–68.

10

Id. at 564.

11

“Not every epochal case has come in epochal trappings.” Id. at 615 (Souter, J., dissenting) (wondering whether the case is only a misapplication of established standards or is a veering in a new direction).

12

529 U.S. 598 (2000). Once again, the Justices split 5-4, with Chief Justice Rehnquist’s opinion for the Court being joined by Justices O’Connor, Scalia, Kennedy, and Thomas, and with Justices Souter, Stevens, Ginsburg, and Breyer dissenting.

13

For an expansive interpretation in the area of economic regulation, decided during the same Term as Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995). Lopez did not “purport to announce a new rule governing Congress’s Commerce Clause power over concededly economic activity.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003).

14

Morrison, 529 U.S. at 613.

15

Dissenting Justice Souter pointed to a “mountain of data” assembled by Congress to show the effects of domestic violence on interstate commerce. 529 U.S. at 628–30. The Court has evidenced a similar willingness to look behind congressional findings purporting to justify exercise of enforcement power under Section 5 of the Fourteenth Amendment. See discussion under “enforcement,” Amdt14.S5.1 Overview of Enforcement Clause. In Morrison itself, the Court determined that congressional findings were insufficient to justify the VAWA as an exercise of Fourteenth Amendment power. 529 U.S. at 619–20.

16

Morrison, 529 U.S. at 614.

17

Id. at 615–16. Applying the principle of constitutional doubt, the Court in Jones v. United States, 529 U.S. 848 (2000), interpreted the federal arson statute as inapplicable to the arson of a private, owner-occupied residence. Were the statute interpreted to apply to such residences, the Court noted, “hardly a building in the land would fall outside [its] domain,” and the statute’s validity under Lopez would be squarely raised. 529 U.S. at 857.

18

Morrison, 529 U.S. at 618.

19

545 U.S. 1 (2005).

20

84 Stat. 1242, 21 U.S.C. §§ 801 et seq.

21

545 U.S. at 19.

22

Id. at 25, quoting Webster’s Third New International Dictionary 720 (1966).

23

See also Taylor v. United States, 579 U.S. 301, 307 (2016) (rejecting the argument that the government, in prosecuting a defendant under the Hobbs Act for robbing drug dealers, must prove the interstate nature of the drug activity). The Taylor Court viewed this result as following necessarily from the Court’s earlier decision in Raich, because the Hobbs Act imposes criminal penalties on robberies that affect “all . . . commerce over which the United States has jurisdiction,” 18 U.S.C. § 1951(b)(3) (2012), and Raich established the precedent that the market for marijuana, “including its intrastate aspects,” is “commerce over which the United States has jurisdiction.” Taylor, 579 U.S. at 307. Taylor was, however, expressly “limited to cases in which a defendant targets drug dealers for the purpose of stealing drugs or drug proceeds.” Id. at 310. The Court did not purport to resolve what federal prosecutors must prove in Hobbs Act robbery cases “where some other type of business or victim is targeted.” Id.

24

545 U.S. at 18, 22.

25

Id. at 23–25.

26

Id. at 34–35 (Scalia, J., concurring).