United States v. Morrison

529 U.S. 598 (2000)


Facts: Brzonkala was allegedly raped by the defendants.  She sued the defendants in federal court under 42 U.S.C. § 13981.  The defendants responded by claiming that the statute was unconstitutional.  The district court agreed and dismissed the complaint.  Brzonkala appealed.  The Fourth Circuit affirmed en banc, and Brzonkala appealed to the U.S. Supreme Court.


Issue: Did Congress have constitutional authority to enact § 13981 under the Commerce Clause?


Rule: Congress has the power to regulate economic activities that are substantially related to interstate commerce.


Analysis: The Court says that Lopez supplies the proper framework to analyze whether the statute in question is within the proper reach of Congress’s Commerce Clause power.


First, the Court claims that the non-economic nature of the conduct in question in Lopez was important to the decision to find the statute unconstitutional.  Next, the Court says that a statute is more likely to pass muster if the conduct prohibited is explicitly limited to that which “substantially affects interstate commerce”.  The Court notes that the statute in Lopez lacked specific congressional findings supporting the connection between the statute and interstate commerce.  Finally, the Court notes the “attenuated” nature of the connection between gun possession and interstate commerce.


Applying this rubric to the Violence Against Women Act, the Court finds that if this act can stand, Congress would pretty much be allowed to regulate anything.  It doesn’t apparently help that the legislative record includes extensive findings relating violence against women and interstate commerce.


Breyer says the economic/non-economic distinction is too difficult to make and doesn’t get applied consistently anyway.  Breyer also thinks the economic/non-economic question should focus on the “effects” and not the “causes”.


The dissent says that the mountain of facts gathered by Congress in support of the connection between violence against women and interstate commerce distinguishes this case from Lopez.


Conclusion: The Court affirms the decision of the Court of Appeals.


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Majority opinion, parts I and II


Chief Justice Rehnquist delivered the opinion of the Court.


     In these cases we consider the constitutionality of 42 U. S. C. §13981, which provides a federal civil remedy for the victims of gender-motivated violence. The United States Court of Appeals for the Fourth Circuit, sitting en banc, struck down §13981 because it concluded that Congress lacked constitutional authority to enact the section's civil remedy. Believing that these cases are controlled by our decisions in United States v. Lopez, 514 U. S. 549 (1995), United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883), we affirm.




     Petitioner Christy Brzonkala enrolled at Virginia Polytechnic Institute (Virginia Tech) in the fall of 1994. In September of that year, Brzonkala met respondents Antonio Morrison and James Crawford, who were both students at Virginia Tech and members of its varsity football team. Brzonkala alleges that, within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her. After the attack, Morrison allegedly told Brzonkala, "You better not have any ... diseases." Complaint ¶ ;22. In the months following the rape, Morrison also allegedly announced in the dormitory's dining room that he "like[d] to get girls drunk and ... ." Id., ¶ ;31. The omitted portions, quoted verbatim in the briefs on file with this Court, consist of boasting, debased remarks about what Morrison would do to women, vulgar remarks that cannot fail to shock and offend.


     Brzonkala alleges that this attack caused her to become severely emotionally disturbed and depressed. She sought assistance from a university psychiatrist, who prescribed antidepressant medication. Shortly after the rape Brzonkala stopped attending classes and withdrew from the university.


     In early 1995, Brzonkala filed a complaint against respondents under Virginia Tech's Sexual Assault Policy. During the school-conducted hearing on her complaint, Morrison admitted having sexual contact with her despite the fact that she had twice told him "no." After the hearing, Virginia Tech's Judicial Committee found insufficient evidence to punish Crawford, but found Morrison guilty of sexual assault and sentenced him to immediate suspension for two semesters.


     Virginia Tech's dean of students upheld the judicial committee's sentence. However, in July 1995, Virginia Tech informed Brzonkala that Morrison intended to initiate a court challenge to his conviction under the Sexual Assault Policy. University officials told her that a second hearing would be necessary to remedy the school's error in prosecuting her complaint under that policy, which had not been widely circulated to students. The university therefore conducted a second hearing under its Abusive Conduct Policy, which was in force prior to the dissemination of the Sexual Assault Policy. Following this second hearing the Judicial Committee again found Morrison guilty and sentenced him to an identical 2-semester suspension. This time, however, the description of Morrison's offense was, without explanation, changed from "sexual assault" to "using abusive language."


     Morrison appealed his second conviction through the university's administrative system. On August 21, 1995, Virginia Tech's senior vice president and provost set aside Morrison's punishment. She concluded that it was " `excessive when compared with other cases where there has been a finding of violation of the Abusive Conduct Policy,' " 132 F. 3d 950, 955 (CA4 1997). Virginia Tech did not inform Brzonkala of this decision. After learning from a newspaper that Morrison would be returning to Virginia Tech for the fall 1995 semester, she dropped out of the university.


     In December 1995, Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court for the Western District of Virginia. Her complaint alleged that Morrison's and Crawford's attack violated §13981 and that Virginia Tech's handling of her complaint violated Title IX of the Education Amendments of 1972, 86 Stat. 373-375, 20 U. S. C. §§1681-1688. Morrison and Crawford moved to dismiss this complaint on the grounds that it failed to state a claim and that §13981's civil remedy is unconstitutional. The United States, petitioner in No. 99-5, intervened to defend §13981's constitutionality.


     The District Court dismissed Brzonkala's Title IX claims against Virginia Tech for failure to state a claim upon which relief can be granted. See Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 772 (WD Va. 1996). It then held that Brzonkala's complaint stated a claim against Morrison and Crawford under §13981, but dismissed the complaint because it concluded that Congress lacked authority to enact the section under either the Commerce Clause or §5 of the Fourteenth Amendment. Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 779 (WD Va. 1996).


     A divided panel of the Court of Appeals reversed the District Court, reinstating Brzonkala's §13981 claim and her Title IX hostile environment claim.1 Brzonkala v. Virginia Polytechnic and State Univ., 132 F. 3d 949 (CA4 1997). The full Court of Appeals vacated the panel's opinion and reheard the case en banc. The en banc court then issued an opinion affirming the District Court's conclusion that Brzonkala stated a claim under §13981 because her complaint alleged a crime of violence and the allegations of Morrison's crude and derogatory statements regarding his treatment of women sufficiently indicated that his crime was motivated by gender animus.2 Nevertheless, the court by a divided vote affirmed the District Court's conclusion that Congress lacked constitutional authority to enact §13981's civil remedy. Brzonkala v. Virginia Polytechnic and State Univ., 169 F. 3d 820 (CA4 1999). Because the Court of Appeals invalidated a federal statute on constitutional grounds, we granted certiorari. 527 U. S. 1068 (1999).


     Section 13981 was part of the Violence Against Women Act of 1994, §40302, 108 Stat. 1941-1942. It states that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender." 42 U. S. C. §13981(b). To enforce that right, subsection (c) declares:


         "A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate."


     Section 13981 defines a "crim[e] of violence motivated by gender" as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." §13981(d)(1). It also provides that the term "crime of violence" includes any


         "(A) ... act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States; and


         "(B) includes an act or series of acts that would constitute a felony described in subparagraph (A) but for the relationship between the person who takes such action and the individual against whom such action is taken." §13981(d)(2).


     Further clarifying the broad scope of §13981's civil remedy, subsection (e)(2) states that "[n]othing in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action under subsection (c) of this section." And subsection (e)(3) provides a §13981 litigant with a choice of forums: Federal and state courts "shall have concurrent jurisdiction" over complaints brought under the section.


     Although the foregoing language of §13981 covers a wide swath of criminal conduct, Congress placed some limitations on the section's federal civil remedy. Subsection (e)(1) states that "[n]othing in this section entitles a person to a cause of action under subsection (c) of this section for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender." Subsection (e)(4) further states that §13981 shall not be construed "to confer on the courts of the United States jurisdiction over any State law claim seeking the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree."


     Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.). Congress explicitly identified the sources of federal authority on which it relied in enacting §13981. It said that a "federal civil rights cause of action" is established "[p]ursuant to the affirmative power of Congress ... under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I of the Constitution." 42 U. S. C. §13981(a). We address Congress' authority to enact this remedy under each of these constitutional provisions in turn.




     Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U. S., at 568, 577-578 (Kennedy, J., concurring); United States v. Harris, 106 U. S., at 635. With this presumption of constitutionality in mind, we turn to the question whether §13981 falls within Congress' power under Article I, §8, of the Constitution.      Brzonkala and the United States rely upon the third clause of the Article, which gives Congress power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."


     As we discussed at length in Lopez, our interpretation of the Commerce Clause has changed as our Nation has developed. See Lopez, 514 U. S., at 552-557; id., at 568-574 (Kennedy, J., concurring); id., at 584, 593-599 (Thomas, J., concurring). We need not repeat that detailed review of the Commerce Clause's history here; it suffices to say that, in the years since NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted. See Lopez, 514 U. S., at 555-556; id., at 573-574 (Kennedy, J., concurring).


     Lopez emphasized, however, that even under our modern, expansive interpretation of the Commerce Clause, Congress' regulatory authority is not without effective bounds. Id., at 557.


    "[E]ven [our] modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned that 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.' " Id., at 556-557 (quoting Jones & Laughlin Steel, supra, at 37).3


     As we observed in Lopez, modern Commerce Clause jurisprudence has "identified three broad categories of activity that Congress may regulate under its commerce power." 514 U. S., at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-277 (1981); Perez v. United States, 402 U. S. 146, 150 (1971)). "First, Congress may regulate the use of the channels of interstate commerce." 514 U. S., at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 256 (1964); United States v. Darby, 312 U. S. 100, 114 (1941)). "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." 514 U. S., at 558 (citing Shreveport Rate Cases, 234 U. S. 342 (1914); Southern R. Co. v. United States, 222 U. S. 20 (1911); Perez, supra, at 150). "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce." 514 U. S., at 558-559 (citing Jones & Laughlin Steel, supra, at 37).


     Petitioners do not contend that these cases fall within either of the first two of these categories of Commerce Clause regulation. They seek to sustain §13981 as a regulation of activity that substantially affects interstate commerce. Given §13981's focus on gender-motivated violence wherever it occurs (rather than violence directed at the instrumentalities of interstate commerce, interstate markets, or things or persons in interstate commerce), we agree that this is the proper inquiry.


     Since Lopez most recently canvassed and clarified our case law governing this third category of Commerce Clause regulation, it provides the proper framework for conducting the required analysis of §13981. In Lopez, we held that the Gun-Free School Zones Act of 1990, 18 U. S. C. §922(q)(1)(A), which made it a federal crime to knowingly possess a firearm in a school zone, exceeded Congress' authority under the Commerce Clause. See 514 U. S., at 551. Several significant considerations contributed to our decision.


     First, we observed that §922(q) was "a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Id., at 561. Reviewing our case law, we noted that "we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce." Id., at 559. Although we cited only a few examples, including Wickard v. Filburn, 317 U. S. 111 (1942); Hodel, supra; Perez, supra; Katzenbach v. McClung, 379 U. S. 294 (1964); and Heart of Atlanta Motel, supra, we stated that the pattern of analysis is clear. Lopez, 514 U. S., at 559-560. "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Id., at 560.


     Both petitioners and Justice Souter's dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case. See, e.g., id., at 551 ("The Act [does not] regulat[e] a commercial activity"), 560 ("Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not"), 561 ("Section 922(q) is not an essential part of a larger regulation of economic activity"), 566 ("Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress' authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender `legal uncertainty' "), 567 ("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce"); see also id., at 573-574 (Kennedy, J., concurring) (stating that Lopez did not alter our "practical conception of commercial regulation" and that Congress may "regulate in the commercial sphere on the assumption that we have a single market and a uni-

fied purpose to build a stable national economy"), 577 ("Were the Federal Government to take over the regulat-

ion of entire areas of traditional state concern, areas

having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur"), 580 ("[U]nlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple posses-

sion of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin

or consequence, but we have not yet said the commerce power may reach so far" (citation omitted)). Lopez's re-

view 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. See id., at 559-



     The second consideration that we found important in analyzing §922(q) was that the statute contained "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." Id., at 562. Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce.


     Third, we noted that neither §922(q) " `nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.' " Ibid. (quoting Brief for United States, O.T. 1994, No. 93-1260, pp. 5-6). While "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce," 514 U. S., at 562 (citing McClung, 379 U. S., at 304; Perez, 402 U. S., at 156), the existence of such findings may "enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye." 514 U. S., at 563.


     Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. Id., at 563-567. The United States argued that the possession of guns may lead to 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." Id., at 563-564 (citation omitted). The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive workforce, which will negatively affect national productivity and thus interstate commerce. Ibid.


     We rejected these "costs of crime" and "national productivity" arguments because they would permit Congress to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." Id., at 564. We noted that, under this but-for reasoning:


    "Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories ... , 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." Ibid.


     With these principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e.g., id., at 559-560, and the cases cited therein.


     Like the Gun-Free School Zones Act at issue in Lopez, §13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that §13981 is sufficiently tied to interstate commerce, Congress elected to cast §13981's remedy over a wider, and more purely intrastate, body of violent crime.5


     In contrast with the lack of congressional findings that we faced in Lopez, §13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. See, e.g., H. R. Conf. Rep. No. 103-711, p. 385 (1994); S. Rep. No. 103-

138, p. 40 (1993); S. Rep. No. 101-545, p. 33 (1990). But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. As we stated in Lopez, " `[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.' " 514 U. S., at 557, n. 2 (quoting Hodel, 452 U. S., at 311 (Rehnquist, J., concurring in judgment)). Rather, " `[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.' " 514 U. S., at 557, n. 2 (quoting Heart of Atlanta Motel, 379 U. S., at 273 (Black, J., concurring)).


     In these cases, Congress' 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


    "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, at 385.


Accord, S. Rep. No. 103-138, at 54. Given these findings and petitioners' arguments, the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority seems well founded. See Lopez, supra, at 564. 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.


     Petitioners' reasoning, moreover, will not limit Congress to regulating violence but may, as we suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national econ-


omy is undoubtedly significant. Congress may have recognized this specter when it expressly precluded §13981 from being used in the family law context.6 See 42 U. S. C. §13981(e)(4). Under our written Constitution, however, the limitation of congressional authority is not solely a matter of legislative grace.7 See Lopez, supra, at 575-579 (Kennedy, J., concurring); Marbury, 1 Cranch, at 176-178.


     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. Lopez, 514 U. S., at 568 (citing Jones & Laughlin Steel, 301 U. S., at 30). In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 426, 428 (1821) (Marshall, C. J.) (stating that Congress "has no general right to punish murder committed within any of the States," and that it is "clear ... that congress cannot punish felonies generally"). 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.8 See, e.g., Lopez, 514 U. S., at 566 ("The Constitution ... withhold[s] from Congress a plenary police power"); id., at 584-585 (Thomas, J., concurring) ("[W]e always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power"), 596-597, and n. 6 (noting that the first Congresses did not enact nationwide punishments for criminal conduct under the Commerce Clause).


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Breyer’s dissent, part I


Justice Breyer, with whom Justice Stevens joins, and with whom Justice Souter and Justice Ginsburg join as to Part I-A, dissenting.


      No one denies the importance of the Constitution's federalist principles. Its state/federal division of authority protects liberty--both by restricting the burdens that government can impose from a distance and by facilitating citizen participation in government that is closer to home. The question is how the judiciary can best implement that original federalist understanding where the Commerce Clause is at issue.




     The majority holds that the federal commerce power does not extend to such "noneconomic" activities as  "noneconomic, violent criminal conduct" that significantly affects interstate commerce only if we "aggregate" the interstate "effect[s]" of individual instances. Ante, at 17-18. Justice Souter explains why history, precedent, and

legal logic militate against the majority's approach. I agree and join his opinion. I add that the majority's holding illustrates the difficulty of finding a workable judicial Commerce Clause touchstone--a set of comprehensible interpretive rules that courts might use to impose some meaningful limit, but not too great a limit, upon the scope of the legislative authority that the Commerce Clause delegates to Congress.




     Consider the problems. The "economic/noneconomic" distinction is not easy to apply. Does the local street corner mugger engage in "economic" activity or "noneconomic" activity when he mugs for money? See Perez v. United States, 402 U. S. 146 (1971) (aggregating local "loan sharking" instances); United States v. Lopez, 514 U. S. 549, 559 (1995) (loan sharking is economic because it consists of "intrastate extortionate credit transactions"); ante, at 9. Would evidence that desire for economic domination underlies many brutal crimes against women save the present statute? See United States General Accounting Office, Health, Education, and Human Services Division, Domestic Violence: Prevalence and Implications for Employment Among Welfare Recipients 7-8 (Nov. 1998); Brief for Equal Rights Advocates, et al. as Amicus Curiae 10-12.


     The line becomes yet harder to draw given the need for exceptions. The Court itself would permit Congress to aggregate, hence regulate, "noneconomic" activity taking place at economic establishments. See Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964) (upholding civil rights laws forbidding discrimination at local motels); Katzenbach v. McClung, 379 U. S. 294 (1964) (same for restaurants); Lopez, supra, at 559 (recognizing congressional power to aggregate, hence forbid, noneconomically motivated discrimination at public accommodations); ante,


at 9-10 (same). And it would permit Congress to regulate where that regulation is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Lopez, supra, at 561; cf. Controlled Substances Act, 21 U. S. C. §801 et seq. (regulating drugs produced for home consumption). Given the former exception, can Congress simply rewrite the present law and limit its application to restaurants, hotels, perhaps universities, and other places of public accommodation? Given the latter exception, can Congress save the present law by including it, or much of it, in a broader "Safe Transport" or "Workplace Safety" act?


     More important, why should we give critical constitutional importance to the economic, or noneconomic, nature of an interstate-commerce-affecting cause? If chemical emanations through indirect environmental change cause identical, severe commercial harm outside a State, why should it matter whether local factories or home fireplaces release them? The Constitution itself refers only to Congress' power to "regulate Commerce . . . among the several States," and to make laws "necessary and proper" to implement that power. Art. I, §8, cls. 3, 18. The language says nothing about either the local nature, or the economic nature, of an interstate-commerce-affecting cause.


     This Court has long held that only the interstate commercial effects, not the local nature of the cause, are constitutionally relevant. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 38-39 (1937) (focusing upon interstate effects); Wickard v. Filburn, 317 U. S. 111, 125 (1942) (aggregating interstate effects of wheat grown for home consumption); Heart of Atlanta Motel, supra, at 258 (" `[I]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze' " (quoting United States v. Women's Sportswear Mfrs. Assn., 336 U. S. 460, 464 (1949))). Nothing in the Constitution's language, or that of earlier cases prior to Lopez, explains why the Court should ignore one highly relevant characteristic of an interstate-commerce-affecting cause (how "local" it is), while placing critical constitutional weight upon a different, less obviously relevant, feature (how "economic" it is).


     Most important, the Court's complex rules seem unlikely to help secure the very object that they seek, namely, the protection of "areas of traditional state regulation" from federal intrusion. Ante, at 15. The Court's rules, even if broadly interpreted, are underinclusive. The local pickpocket is no less a traditional subject of state regulation than is the local gender-motivated assault. Regardless, the Court reaffirms, as it should, Congress' well-established and frequently exercised power to enact laws that satisfy a commerce-related jurisdictional prerequisite--for example, that some item relevant to the federally regulated activity has at some time crossed a state line. Ante, at 8-9, 11, 13, and n. 5; Lopez, supra, at 558; Heart of Atlanta Motel, supra, at 256 (" `[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' " (quoting Caminetti v. United States, 242 U. S. 470, 491 (1917))); see also United States v. Bass, 404 U. S. 336, 347-350 (1971) (saving ambiguous felon-in-possession statute by requiring gun to have crossed state line); Scarborough v. United States, 431 U. S. 563, 575 (1977) (interpreting same statute to require only that gun passed "in interstate commerce" "at some time," without questioning constitutionality); cf., e.g., 18 U. S. C. §2261(a)(1) (making it a federal crime for a person to cross state lines to commit a crime of violence against a spouse or intimate partner); §1951(a) (federal crime to commit robbery, extortion, physical violence or threat thereof, where "article or commodity in commerce" is affected, obstructed or delayed); §2315 (making unlawful the knowing receipt or possession of certain stolen items that have "crossed a State ... boundary"); §922(g)(1) (prohibiting felons from shipping, transporting, receiving, or possessing firearms "in interstate ... commerce").


     And in a world where most everyday products or their component parts cross interstate boundaries, Congress will frequently find it possible to redraft a statute using language that ties the regulation to the interstate movement of some relevant object, thereby regulating local criminal activity or, for that matter, family affairs. See, e.g., Child Support Recovery Act of 1992, 18 U. S. C. §228. Although this possibility does not give the Federal Government the power to regulate everything, it means that any substantive limitation will apply randomly in terms of the interests the majority seeks to protect. How much would be gained, for example, were Congress to reenact the present law in the form of "An Act Forbidding Violence Against Women Perpetrated at Public Accommodations or by Those Who Have Moved in, or through the Use of Items that Have Moved in, Interstate Commerce"? Complex Commerce Clause rules creating fine distinctions that achieve only random results do little to further the important federalist interests that called them into being. That is why modern (pre-Lopez) case law rejected them. See Wickard, supra, at 120; United States v. Darby, 312 U. S. 100, 116-117 (1941); Jones & Laughlin Steel Corp., supra, at 37.


     The majority, aware of these difficulties, is nonetheless concerned with what it sees as an important contrary consideration. To determine the lawfulness of statutes simply by asking whether Congress could reasonably have found that aggregated local instances significantly affect interstate commerce will allow Congress to regulate almost anything. Virtually all local activity, when instances are aggregated, can have "substantial effects on employment, production, transit, or consumption." Hence Congress could "regulate any crime," and perhaps "marriage, divorce, and childrearing" as well, obliterating the "Constitution's distinction between national and local authority." Ante, at 15; Lopez, 514 U. S., at 558; cf. A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 548 (1935) (need for distinction between "direct" and "indirect" effects lest there "be virtually no limit to the federal power"); Hammer v. Dagenhart, 247 U. S. 251, 276 (1918) (similar observation).


     This consideration, however, while serious, does not reflect a jurisprudential defect, so much as it reflects a practical reality. We live in a Nation knit together by two centuries of scientific, technological, commercial, and environmental change. Those changes, taken together, mean that virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State--at least when considered in the aggregate. Heart of Atlanta Motel, 379 U. S., at 251. And that fact makes it close to impossible for courts to develop meaningful subject-matter categories that would exclude some kinds of local activities from ordinary Commerce Clause "aggregation" rules without, at the same time, depriving Congress of the power to regulate activities that have a genuine and important effect upon interstate commerce.


     Since judges cannot change the world, the "defect" means that, within the bounds of the rational, Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal balance. Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 552 (1985); ante, at 19-24 (Souter, J., dissenting); Kimel v. Florida Bd. of Regents, 528 U. S.     ,     (2000) (slip op., at 2) (Stevens, J., dissenting) (Framers designed important structural safeguards to ensure that, when Congress legislates, "the normal operation of the legislative process itself would adequately defend state interests from undue infringement"); see also Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000) (focusing on role of political process and political parties in protecting state interests). Congress is institutionally motivated to do so. Its Members represent state and local district interests. They consider the views of state and local officials when they legislate, and they have even developed formal procedures to ensure that such consideration takes place. See, e.g., Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, 109 Stat. 48 (codified in scattered sections of 2 U. S. C.). Moreover, Congress often can better reflect state concerns for autonomy in the details of sophisticated statutory schemes than can the judiciary, which cannot easily gather the relevant facts and which must apply more general legal rules and categories. See, e.g., 42 U. S. C. §7543(b) (Clean Air Act); 33 U. S. C. §1251 et seq. (Clean Water Act); see also New York v. United States, 505 U. S. 144, 167-168 (1992) (collecting other examples of "cooperative federalism"). Not surprisingly, the bulk of American law is still state law, and overwhelmingly so.




     I would also note that Congress, when it enacted the statute, followed procedures that help to protect the federalism values at stake. It provided adequate notice to the States of its intent to legislate in an "are[a] of traditional state regulation." Ante, at 15. And in response, attorneys general in the overwhelming majority of States (38) supported congressional legislation, telling Congress that "[o]ur experience as Attorneys General strengthens our belief that the problem of violence against women is a national one, requiring federal attention, federal leadership, and federal funds." Id., at 34-36; see also Violence


Against Women: Victims of the System, Hearing on S. 15 before the Senate Committee on the Judiciary, 102d Cong., 1st Sess., 37-38 (1991) (unanimous resolution of the National Association of Attorneys General); but cf. Crimes of Violence Motivated by Gender, Hearing before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 103d Cong., 1st Sess., 77-84 (1993) (Conference of Chief Justices opposing legislation).


     Moreover, as Justice Souter has pointed out, Congress compiled a "mountain of data" explicitly documenting the interstate commercial effects of gender-motivated crimes of violence. Ante, at 2-8, 27-28 (dissenting opinion). After considering alternatives, it focused the federal law upon documented deficiencies in state legal systems. And it tailored the law to prevent its use in certain areas of traditional state concern, such as divorce, alimony, or child custody. 42 U. S. C. §13981(e)(4). Consequently, the law before us seems to represent an instance, not of state/federal conflict, but of state/federal efforts to cooperate in order to help solve a mutually acknowledged national problem. Cf. §§300w-10, 3796gg, 3796hh, 10409, 13931 (providing federal moneys to encourage state and local initiatives to combat gender-motivated violence).


      I call attention to the legislative process leading up to enactment of this statute because, as the majority recognizes, ante, at 14, it far surpasses that which led to the enactment of the statute we considered in Lopez. And even were I to accept Lopez as an accurate statement of the law, which I do not, that distinction provides a possible basis for upholding the law here. This Court on occasion has pointed to the importance of procedural limitations in keeping the power of Congress in check. See Garcia, supra, at 554 ("Any substantive restraint on the exercise of Commerce Clause powers must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the national political process rather than to dictate a `sacred province of state autonomy' " (quoting EEOC v. Wyoming, 460 U. S. 226, 236 (1983))); see also Gregory v. Ashcroft, 501 U. S. 452, 460-461 (1991) (insisting upon a "plain statement" of congressional intent when Congress legislates "in areas traditionally regulated by the States"); cf. Hampton v. Mow Sun Wong, 426 U. S. 88, 103-105, 114-117 (1976); Fullilove v. Klutznick, 448 U. S. 448, 548-554 (1980) (Stevens, J., dissenting).


     Commentators also have suggested that the thoroughness of legislative procedures--e.g., whether Congress took a "hard look"--might sometimes make a determinative difference in a Commerce Clause case, say when Congress legislates in an area of traditional state regulation. See, e.g., Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 Harv. L. Rev. 2180, 2231-2245 (1998); Gardbaum, Rethinking Constitutional Federalism, 74 Texas L. Rev. 795, 812-828, 830-832 (1996); Lessig, Translating Federalism: United States v. Lopez, 1995 S. Ct. Rev. 125, 194-214 (1995); see also Treaty Establishing the European Community Art. 5; Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum. L. Rev. 331, 378-403 (1994) (arguing for similar limitation in respect to somewhat analogous principle of subsidiarity for European Community); Gardbaum, supra, at 833-837 (applying subsidiarity principles to American federalism). Of course, any judicial insistence that Congress follow particular procedures might itself intrude upon congressional prerogatives and embody difficult definitional problems. But the intrusion, problems, and consequences all would seem less serious than those embodied in the majority's approach. See supra, at 2-7.


     I continue to agree with Justice Souter that the Court's traditional "rational basis" approach is sufficient. Ante, at 1-2 (dissenting opinion); see also Lopez, 514 U. S., at 603-615 (Souter, J., dissenting); id., at 615-631 (Breyer, J., dissenting). But I recognize that the law in this area is unstable and that time and experience may demonstrate both the unworkability of the majority's rules and the superiority of Congress' own procedural approach--in which case the law may evolve towards a rule that, in certain difficult Commerce Clause cases, takes account of the thoroughness with which Congress has considered the federalism issue.


     For these reasons, as well as those set forth by Justice Souter, this statute falls well within Congress's Commerce Clause authority, and I dissent from the Court's contrary conclusion.


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