Commerce II

In an earlier panel, we discussed the tension within the Gibbons v Ogden decision between the Court's attempt to find textual limits to the Commerce Clause power on the one hand, and the Court's reliance upon democratic processes to impose limits via the ballot box. Since its New Deal decisions, the Court had moved decisively towards the democratic process and away from judicial intervention. Here is what Lawrence Tribe states:

• Since 1937, in applying the factual test Jones & Laughlin to hold a broad range of activities sufficiently related to interstate commerce, the Supreme Court has exercised little independent judgment, choosing instead to defer to the expressed or implied findings of Congress to the effect that regulated activities have the requisite "economic effect." Such findings have been upheld whenever they could be said to rest upon some rational basis. (Citing Heart of Atlanta Motel, Inc. v United States, 1964)

In United States v Lopez, 514 U.S. 549 the Renquist Court struggled to find some judicial limits on the Commerce Clause.

In the Gun Free School Zones Act of 1990, Congress made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." The Supreme Court found that the Act neither regulated a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. Congress had failed to make any findings in its legislative history connecting firearms possession near schools to commerce.

The Court's Lopez decision is remarkable for its focus upon judicial limits as opposed to democratic limits upon Congressional Commerce Clause power.

• We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U. S. Const., Art. I, §8. As James Madison wrote, "[t]he 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." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). "Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Ibid.

The Court then runs through the expansion of the Commerce Clause power, beginning with the Interstate Commerce Act (1887) and the Sherman Antitrust (1890) which "ushered in a new era of federal regulation under the commerce power." The Court acknowledged that Commerce Clause decisions from 1887 through 1937 had improperly constrained the legislative branch.

• Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce

The cases decided beginning with Jones & Laughlin had upheld Commerce clause legislation on three theories, the Court said:

1. First, Congress may regulate the use of the channels of interstate commerce; "[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.' "
2. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. (For example, the destruction of an aircraft)
3. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce

The Government had argued that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argued that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well being. As a result, the Government argued that Congress could rationally have concluded that the new law substantially affects interstate commerce.

The Court's focus upon the potential for Congressional abuse represents a marked shift towards the theory that the Court, and not democracy, protects the States from undue expansion of Congressional Commerce clause powers:

• Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

• For instance, if Congress can, pursuant to its Commerce Clause power, regulate activities that adversely affect the learning environment, then, a fortiori, it also can regulate the educational process directly. Congress could determine that a school's curriculum has a-significant" effect on the extent of classroom learning. As a result, Congress could mandate a federal curriculum for local elementary and secondary schools because what is taught in local schools has a significant "effect on classroom learning," cf. post, at 9, and that, in turn, has a substantial effect on interstate commerce.

• To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. ... The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.

If Congress re-passed the Save Schools Act with appropriate findings would it then pass Congressional muster? Supposing the Congress found that educational opportunity was fundamentally important to a vibrant national economy, that gun violence was destroying education and rendering our schools unsafe, would these be sufficient findings? Could Congress make it a federal crime to carry weapons near schools if they had moved in interstate commerce? Can Congress make it a crime to possess drugs near schools? If not, could it create a presumption that one carrying more than a fixed amount of drugs presumptively intended to sell drugs "in commerce", and then make possession of drugs with intent to sell near a schoolhouse a crime? Can Congress make it a crime with enhanced penalties to carry an unregistered gun near a schoolhouse? Can Congress grant money to local police departments for the purpose of combatting gun violence near schools?

The Court suggests that creation of a national curriculum would be a more serious violation of the commerce clause and of state's rights even than the anti-gun legislation. Is this constitutional or political philosophy? Does this mean that Congress may not appropriate money to encourage schools to improve science education? Hasn't Congress already substantially created a national curriculum by requiring public schools to create IEP's for disabled students. What power is the Congress using when it regulates education of the disabled?

Violence Against Women Act: United States v. Morrision, 529 U.S. 598 (2000). In United States v. Morrision, the Court attempted to apply its Lopez principles to the Violence Against Women Act, which had been extensively supported by congressional findings and an extensive legislative record. Based on the data thus partially summarized, Congress found that:

• "crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce ... [,] by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products...." H.R. Conf. Rep. No. 103- 711, p. 385 (1994), U.S.Code Cong. & Admin.News 1994, pp. 1803, 1853.

The Act provided a federal civil remedy for the victims of gender- motivated violence. It had active support from representatives of the attorneys general of a majority of the states. The Morrision decision resulted from a case brought by a victim of sexual assault. The facts seemed to support Congress' findings and rationale for the legislation. The alleged rape interfered with the victim's educational opportunity. The institution responded in a way which reinforced that interference by returning the perpetrator to the campus. The defendants Antonio Morrision and James Crawford were both students at Virginia Tech and members of its varsity football team. The victim, Brzonkala alleged that, within 30 minutes of meeting Morrision and Crawford, they assaulted and repeatedly raped her. The complaint alleged that Morrision announced in the dormitory's dining room that he liked to get girls drunk and boasted about what Morrision would do to women. In a rather appalling chain of events, Virginia Tech seemed to minimize the gravity of Morrision and Crawford's alleged misconduct. Despite Morrision's own admission of the sexual assault, the University reduced the charges and found him guilty only of abusive language. When Virginia Tech's senior vice president readmitted Morrision to the institution (finding that his punishment was disproportionate to the offense) Brzonkal commenced a federal civil action under the Violence to Women Act.

The case went to the Supreme Court after the District Court dismissed the complaint, finding that the Violence to Women Act was beyond Congressional power. Proponents of the Act contended that Congressional power could be founded on both the 14th amendment and Commerce Clause: we discuss only the Commerce Clause rationale here. Once again, the Morrision Court reaffirmed the new emphasis upon the limits assertedly inherent in the federal system:

• "the scope of the interstate commerce power 'must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."

As in Lopez, the Court found that the activity regulated was not an "economic enterprise."

• "... noneconomic, criminal nature of the conduct at issue was central to our decision in that case. Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor..."

Second, as in Lopez, there was not a "jurisdictional element limiting to activity connected with or having effect on interstate commerce". The Court then turned to the factual findings and legislative record. It acknowledged that the Violence Against Women Act was supported by an extensive legislative record. But the Court regarded Congressional findings of the relationship between violence against women and interference with commerce as too attenuated and unpersuasive. And the great battle on the court revolves around this central issue: whether unelected judges or congressional representatives of the people should determine whether an activity impacts congress. For whatever one might think of the ultimate result in the Morrision decision, it seems plain that the majority is wrong when it suggests that violence against women does not significantly interfere with national commerce.

The majority notes that the legislation was "supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families...findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers. Congress found that gender-motivated violence affects interstate commerce. But this reasoning, the Court found, was too attenuated:

• The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States' police power) to every attenuated effect upon interstate commerce. If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.

The problem seems to derive from the Court's concern that granting the power to prevent violence against women would eviscerate any principled limits to Congressional power at all:

• Departing from their parliamentary past, the Framers adopted a written Constitution that further divided authority at the federal level so that the Constitution's provisions would not be defined solely by the political branches nor the scope of legislative power limited only by public opinion and the Legislature's self-restraint...We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. ....Indeed, we can think of 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

The minority opinions respond that the limits must come rather from political checks rather than judicial. The minority regards the prior attempts to substitute judicial limits on the commerce clause as failing the test of history:

• In the half century following the modern activation of the commerce power with passage of the Interstate Commerce Act in 1887, this Court from time to time created categorical enclaves beyond congressional reach by declaring such activities as "mining," "production," "manufacturing," and union membership to be outside the definition of "commerce" and by limiting application of the effects test to "direct" rather than "indirect" commercial consequences.... Why is the majority tempted to reject the lesson so painfully learned in 1937? ....that in the minds of the majority there is a new animating theory that makes categorical formalism seem useful again. Just as the old formalism had value in the service of an economic conception, the new one is useful in serving a conception of federalism. It is the instrument by which assertions of national power are to be limited in favor of preserving a supposedly discernible, proper sphere of state autonomy to legislate or refrain from legislating as the individual States see fit. The legitimacy of the Court's current emphasis on the noncommercial nature of regulated activity, then, does not turn on any logic serving the text of the Commerce Clause or on the realism of the majority's view of the national economy. The essential issue is rather the strength of the majority's claim to have a constitutional warrant for its current conception of a federal relationship enforceable by this Court through limits on otherwise plenary commerce power.

The minority continues: "the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." How could this legislation constitute an interference with states rights when, in fact, the states themselves supported the legislation:

• The collective opinion of state officials that the Act was needed continues virtually unchanged, and when the Civil Rights Remedy was challenged in court, the States came to its defense. Thirty-six of them and the Commonwealth of Puerto Rico have filed an amicus brief in support of petitioners in these cases, and only one State has taken respondents' side. It is, then, not the least irony of these cases that the States will be forced to enjoy the new federalism whether they want it or not.