Constitutional Law Class Notes 1/12/04


The Commerce Clause - United States v. Lopez


What are the facts of this case?  Lopez was convicted of violating the Gun-Free School Zone Act.  You can’t carry a gun within 1000 feet of a school zone.  This statute was enacted by the U.S. Congress.  Why is it significant that Congress passed this law versus, say, the Texas legislature?  Well, what we’re concerned about is congressional power as opposed to the power of state legislatures.


How did the court get the Supreme Court?  The Fifth Circuit vacated the conviction.  There was no dispute about whether he had a gun.  He was caught red-handed and there is no question whether he violated the law.  The appeal was thus not on the basis of any reasonable doubt of fact or anything like that.


Make sure to listen to the other students.  If you can’t hear them, say something.  This is apparently a big deal.


How do you know if you’re in a school zone under this law?  A school zone is within 1,000 feet of a school.  Why is this important?  Someone’s violating the law.  As a person living in the state of Texas, would they know whether they were in violation of this law?  Do people go around carrying tape measures all the time?  But there was no factual dispute.  Lopez doesn’t claim he was 1,003 feet from the school.


What’s the basis for the appeal if there’s no factual dispute?  The only claim Lopez has on appeal is that the law is unconstitutional because it’s beyond the scope of the enumerated powers of Congress.  Lopez wins in the Fifth Circuit and the Supreme Court agrees to review the case.


What does the Supreme Court say after granting cert?  The Supreme Court decides that the law was unconstitutional.  The Supreme Court says: “No, Congress, you lack this power.”


But why?  What does the phrase “piling inference on inference” explain the holding of the case?  Possessing a gun in itself is not directly related to interstate commerce.  But you could argue that having a gun could cause violent crime which could cause increased insurance rates and so on.  The argument is in the nature of A leads to B leads to C leads to D and D is related to interstate commerce.


Let’s look at Article I, § 8.  This is the big list of powers of Congress.  It’s a big list, but it’s a finite list.  Don’t forget the last power, which is a biggie: making laws that are “necessary and proper” to execute the listed powers.  Keep the “Necessary and Proper Clause” in mind here.


Whenever there’s a challenge to a federal statute, the government only has to show there’s one power to support the law.  In order for Lopez to prevail, he must show that Congress doesn’t have the power to pass this law under any of the enumerated powers.  That’s a tough standard!


This is important not only for questions of congressional power, but also for any questions about who has what powers and who has the burden of proof to show that something is within the power of a part of the government.


Back to the Second Amendment


Why doesn’t Lopez try to win this appeal on Second Amendment grounds instead of Commerce Clause grounds?  The Supreme Court hadn’t invalidated a statute on the basis of the Commerce Clause in a heck of a long time.  There also hadn’t been a Second Amendment case in the Supreme Court for a heck of a long time.


Was this a tactical move?  Was the Court more willing to move on the Commerce Clause than on the Second Amendment?


Lopez has been around for almost a decade and people are pretty comfortable with it.  But when Foley took this class 20 years ago, Foley learned from his professor that any attempt to argue that something was out of the scope of the Commerce Clause was a sure loser under the Court’s jurisprudence.  In other words, Congress could pretty much do whatever it wanted and find some link to the Commerce Clause.  Foley’s professor turned out to be completely wrong!  So keep in mind that the law can change!  Congress can’t just do whatever it wants anymore.  If that was the accepted wisdom, why the heck would Lopez’s lawyer have tried this appeal on Commerce Clause grounds?


If you don’t make the Second Amendment argument in trial court you lose it on appeal.  But that just means that the attorneys should have brought up both defenses.


By 1992, when Lopez gets caught red-handed, he’s got bad precedent under the Second Amendment (Miller from 1939) because he’s not a member of a militia and he gets caught with a gun near a school.  But moreover, most people in 1992 would say he didn’t have a very good Commerce Clause argument either.


Lopez is a revolutionary decision in American jurisprudence!  The Court isn’t all that loud and exciting about it.  They don’t trumpet this transformation.  But Foley assures us that this is a big, big, big, big deal.


Presumably Congress passed this law because they were concerned about guns in schools.  Congress thus thought this issue was of national importance and couldn’t be left to the states.  The Supreme Court says that Congress lacks the authority to address this issue of national concern, no matter how important it is!  This is a big deal!


Did some of the justices have a bone to pick?  Was there an ideological deal here?  Foley says that’s not what’s going on here.  The United States government lost this case in the Court of Appeals, which found that the statute was unconstitutional under the Commerce Clause.  The Court of Appeals did this in the face of the widespread belief otherwise.  The Solicitor General of the United States wanted this reviewed, and the Supreme Court couldn’t leave the last word in the lower court since an act of Congress was being struck down.


Two types of constitutional questions


Whenever you’re dealing with an act of Congress, or really any action by the federal government in general, you have to think about two different types of constitutional questions that could arise.


The “power” question


Does Congress have the authority to enact this law?  Is it within the scope of authority granted to Congress by the Constitution?  Congress cannot act unless it has been given authority (or power) by the Constitution to act.  You must find a place for Congress to act.  You only have to find one, but you do have to find that one basis for authority.  This is sometimes called the doctrine of enumerated powers.  If some things are enumerated, it means that some things are not enumerated.  Congress doesn’t have unlimited powers.  The list includes the “Necessary and Proper Clause”.

The list of Congress’s enumerated powers started out with exactly the powers listed in Article I, § 8.  But now there are additional powers granted to Congress added by amendments.  Check out § 5 of the Fourteenth Amendment: Congress can now enforce the provisions of the amendment.  It’s a new power that gets added to the list!  There are lots of other little provisions like this that add on.  But you need to find the power you want among those listed.

The “rights” question


Even if something is within the scope of the enumerated powers, it may violate a rights provision of the Constitution, like one of the provisions of the Bill of Rights.  Something can be inside the scope of a power provision, but Congress could still be prohibited from doing that thing if it would abridge a right out of the Bill of Rights.

Say Congress passed a law that said it would be unlawful for pornography to be trafficked in interstate commerce.  Those are things in interstate commerce.  This is within the scope of the Commerce Clause power.  However, it may violate the First Amendment free speech right.


State versus federal powers


With respect to the Federal Constitution, the distinction between “power” questions and “rights” question only applies to acts of the Federal Government.  The Federal Constitution doesn’t purport to define the limits of state power.  States are assumed to have general police powers.  States can do whatever they want, unless it conflicts with a specific right granted by the Constitution.


With respect to state laws, we will deal only with “rights questions.


Analytically, the “power” question always comes first.  It’s a threshold question.


The Constitution affirmatively says what Congress can do, specifically says what Congress can’t do, and finally says what states can’t do.


Consequences of Lopez


If this law is no good, what other laws are no good?  What about the Endangered Species Act?  What gives Congress the power to pass such a law?  We’ll find that people revert to the Commerce Clause when they want to assert that Congress has the authority to do something.  What do endangered species have to do with commerce, and isn’t that a similar question to “what do guns near schools have to do with commerce”?  How does this case relate to the Commerce Clause at all?


How could Congress possibly think that this law that they’ve enacted saying you can’t possess a gun within 1,000 feet of a school is related to interstate or international commerce or commerce with Indian tribes?  Congress might not have anticipated any problems.  They may have assumed they wouldn’t have to “jump through this hoop” anymore.  Historically, the doctrine of enumerated powers had kind of fallen by the wayside.  Congress saw the commerce power as so large that more or less anything goes.


How could Congress have gotten to think that way in the first place? 


There has been a lot of case law that has spoken about the scope of the Commerce Clause.  The Court itself gives us a history lesson in the opinion.  Chemerinsky will give us a slightly different interpretation.


Some things are pretty uncontroversial.  A key truth to the history of the Commerce Clause is that the Court had said that the scope of Congress’s power isn’t just things moving across state lines, but also anything located within a single state that might affect commerce that moves across state lines.  In other words, there may be things that are purely intrastate, and thus are not themselves part of interstate commerce, but nonetheless may “affect” (or “substantially affect”) interstate commerce, and thus be within the scope of the commerce power.  We’re going to let Congress regulate interstate commerce itself, and we’re also going to let Congress regulate things confined to a single state that substantially affect interstate commerce.


Tomorrow, we’ll look at the dissent and compare it to the majority’s analysis.


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