Constitutional
Law Class Notes
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
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
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
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.