Effect of Lopez

• It’s not clear whether Lopez would change the result in either Heart of Atlanta or Katzenbach. Katzenbach seems to be the more constitutionally suspect of the two, in light of Lopez.

• If the government’s belief that businesses won’t locate in areas with poor schooling (including schooling marred by gunfire) wasn’t enough of a connection to interstate commerce in Lopez, it may well be that Congress’ belief that discrimination in accommodations dissuades blacks from traveling interstate wouldn’t be enough either, if today’s SCt were revisiting Katzenbach.

• On the other hand, the core activity being regulated in Katzenbach – the furnishing of restaurant meals – is clearly “commercial” in a way that possessing a gun in a school is not.

• On balance, Katzenbach would probably be decided the same way today, because of the more obviously commercial nature of the activity being regulated.

Judicial abdication during New Deal

• Justice Jackson (Wickard) – We have returned to Marshall’s original understanding of CC as broad enough to reach any activity that, together with other activities similarly situated, has substantial economic effect on interstate commerce.

• C/A. Marshall never contemplated anything like modern administrative state.

• Professor Bruce Ackerman – USC was effectively amended during New Deal, giving Congress what amounts to general police power.

• It would be strange to think that SC, at point in American history, got con law wrong for decades at a time; only Ackerman’s theory avoids this implication.

• Every judge except Thomas accepts that Congress has a lot more power than it did before New Deal, and that its power over national economy is plenary.

• C/A. There was no formal Article 5 Amendment in 1930s. But arguably, 1936 election accomplished Article 5’s requirement of consent by supermajority.

• Professor Lawrence Lessig – Background culture has changed, making preexisting doctrinal categories look less persuasive than they previously had, but basic idea of federalism remains part of USC.

• C/A. It is not clear that background cultural assumptions have changed so much that SC’s reversal of course was compelled. Abdications as well as assumptions of authority need principled justification.

• Justice Thomas (Lopez) – New Deal was unwarranted abdication of judicial responsibility; preexisting case law should not have been overruled, and its categories should be reintroduced into constitutional doctrine. C/A:

• Odd to think that SC got con law wrong for 50 years.

• Even if SC did get con law wrong, returning to old categories would dismantle much of federal government as we know it, with unpredictable consequences.

• Lack of compatibility between 18^th century political theory and modern necessities is not sufficient for Court now to throw country into constitutional crisis. This is why no one else joins Thomas's opinion.

United States V. Lopez – Latest word – Guns and schools do mix

• Rehnquist 1995. SCt for the first time in 60 years invalidated a federal statute on the grounds that it was beyond the Congress’ Commerce power. Statute struck down. By 5-4 vote, SCt struck down the statute.

• Gun Free Schools. The statute was the Gun-Free School Zones Act of 1990, in which Congress made it a federal crime “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.”

• Little connection to commerce. The statute clearly had less explicit connection to interstate commerce than most federal statutes premised on the Commerce power. For instance:

• No findings. The statute did not include any explicit findings by Congress that the activity being regulated (possession of guns in schools) affected commerce.

• No jurisdictional nexus. Moreover, the statute did not include a “jurisdictional nexus.” For instance, Congress could have made it a crime only to possess a gun that had moved in (or otherwise affected) interstate commerce. [e.g. 1964 Civil, Rights Act regulates restaurants that buy food a substantial part of which has moved in interstate commerce.] But here, Congress banned even possession of a gun that had never traveled in, or even affected, interstate commerce.

• “Substantial” effect required on Commerce. The majority opinion first resolved a prior uncertainty, by holding that it is not enough that the activity being regulated merely “affects” interstate commerce. Instead, the activity must “substantially affect” interstate commerce.

• Requisite effect not present. Then, the majority concluded that the possession of guns in schools had not been demonstrated to “substantially affect” commerce.

• Not commercial. Majority seemed to think that it was important that the particular activity being regulated – possession of guns in schools – was not itself a “commercial” activity. The majority distinguished Wickard (which it called “perhaps the most far reaching example of Commerce Clause authority over intrastate activity”) from the activity at issue here, saying that Wickard “involved economic activity in a way that the possession of a gun in an school zone does not.” Also, unlike the wheat-growing regulation in Wickard, the regulation here was not part of a “larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intra-state activity were regulated.”

• Government’s argument. The federal government, in defending the statute, had argued that gun possession in schools does have a “substantial effect” on commerce. The government asserted the following syllogism: (1) the possession of a firearm in a school may result in violent crime; and (2) violent crime affects the functioning of the national economy in several ways (e.g. (a) the costs of crime are insured against, and thus spread across state lines because of the interstate nature of the insurance market, (b) violent crime reduces individuals’ willingness to travel to areas of the country they believe are unsafe, and (c) violent crime in schools reduces the schools’ ability to educate their students, who thus become less economically-productive.

• Argument rejected. But majority rejected this argument, essentially because it proved too much. For instance, under the “economic productivity” argument, “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.” In general, under the government’s approach, “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 that Congress is without power to regulate.”

• Parade of horribles. Majority went on to describe some of the types of federal regulation that would fall within the Commerce power, if the government’s approach were accepted: “Congress could mandate a federal curriculum for local and elementary schools because what is taught in local schools has a significant ‘effect on classroom learning,’ and that, in turn, has a substantial effect on interstate commerce.” Similarly, “Congress could . . . look at child rearing as ‘falling on the commercial side of the line’, because it provides a valuable service – namely, to equip children with the skills they need to survive in the workplace.’” Such results would make the Commerce power limitless.

• Summary. “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.” Prior cases may have extended the Commerce power to great lengths, “but we decline here to proceed any further.” To uphold the act here “would require us to conclude . . . that there never will be a distinction between what is truly national and what is truly local.”

• Concurrence - Kennedy.

• As summarized by Koppelman. Kennedy’s concurrence does not provide clarity. Does not want to compromise “stability of CC jurisprudence as it has evolved to this point.” But he is particularly troubled by law at issue because it “seeks to intrude upon an area of traditional state concern.” Rejects any bright line rule; he wants to keep his options open.

• Suggested that he and O’Connor were less eager than Rehnquist to cut back the SCt’s Commerce Clause interpretations. He said that he had “some pause” about joining the majority’s opinion, and that this was a “necessary though limited holding.”

• Commercial transactions untouched: More than Rehnquist, Kennedy seemed eager to leave untouched prior cases holding that Congress has full power to regulate what are truly commercial transactions, even if the transaction being regulated is a very local one: stare decisis “mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.”

1. Not commercial. But the activity being regulated here was not essentially commercial.

2. Traditionally left to states. Furthermore, activities that had been traditionally left to the states to regulate should be further off-limits to the federal commerce power than activities that had not been so limited. Education was one of those traditional concerns of the states. To allow the federal government to interfere would “foreclose the States from experimenting and exercising their own judgment” in this area traditionally left to them.

• Concurrence - Thomas. “Substantial relation” test allows Congress too much power. He wants to revive manufacturing-commerce distinction.

• Dissent - Breyer. As summarized by Koppelman: Breyer

• Argues there is substantial relation between law here and interstate commerce. His argument shows at best weak connection between guns and commerce.

• Promulgates “rational basis” test which does not demand strong connection between regulated activity and commerce.

• Supports idea that Congress should have “general police power.”

• Breyer’s stronger arguments:

1. SC should not presume to draw line between commerce and non-commerce.

2. States can fend for themselves.

• “Rational basis” test. Test was “whether Congress could have had a rational basis for finding a significant (or substantial) connection between gun-related school violence and interstate commerce.” (The majority had not mentioned “rational basis” – to the majority, the question was whether there actually was a substantial connection, not merely whether Congress could rationally have believed that there was.) With the issue formulated this way, Breyer had no trouble concluding that the answer was yes.

• Government’s arguments accepted. Breyer accepted the Government’s arguments on this point. There was ample evidence available to Congress that guns-related violence in the schools interfered with the quality of education. And there was also extensive evidence that education was intimately tied to the economic viability of not only individuals but whole areas (since “many firms base their location decisions upon the presence, or absence, of a work force with a basic education.”

• Majority’s view rejected.

1. Contrary to case law. First, Breyer found that approach contrary to modern cases upholding congressional action regulating activities that (in his opinion) had less connection with interstate commerce than the guns-in-schools at issue here. For instance, he thought that a single instance of racial discrimination at a local restaurant, found regulable in Katzenbach v. McClung, had no greater connection with interstate commerce than the instance of gun possession being regulated here.

2. Commercial/non-commercial distinction rejected: Second, Breyer rejected the majority’s distinction between “commercial” and “non-commercial” transactions, believing that the line would prove hard to draw. He also thought that the majority drew the line in the wrong place here – if the majority was holding that education as a whole was a non-commercial activity, the majority was mistaken because “Congress . . . could rationally conclude that schools found on the commercial side of the line.”

3. Stare decisis. Finally, Breyer believed that the majority was unwise to “threaten . . . legal uncertainty in an area of law that, until this case, seemed reasonably well-settled.

• Dissent - Stevens. Simply invokes traditionally deferential approach to commerce clause.

• Dissent - Souter.

• Any rule for judicial review of commerce power that has teeth in it is just like Lochner (states) and therefore is bad.

Nothing in CC compels judicial activism; SCt has no special competence in this area.