Lecture 30 The Commerce Power Part 7: The Republican Court Era- I

This lecture We move to the Rehnquist Court New limits are restored to the Commerce Power Lopez and Morrison Pages 472-484

United States v. Lopez (1995) Background Had the appointment of Clarence Thomas shifted the balance of power on states rights? Note the opinion in New York v. United States on commandeering states Congress had passed the Gun Free School Zones Act in 1990 Lopez was arrested for carrying a handgun unto school property in San Antonio He was convicted, but challenged the constitutionality of the law Congress did not have any findings to relate guns in schools and commerce The government said this was not required The 5th Circuit found in his favor- Congress had not constitutional authority

United States v. Lopez- II Question: Did this part of the Gun-Free School Zones act exceed Congress’ power to regulate under the Commerce Clause, thus be unconstitutional? Arguments For the United States (uphold the law and conviction) Congress can regulate intrastate, non-economic activity if in the aggregate it has a substantial impact on interstate commerce All Congress had to do was to show a rational relationship between gun possession on or near schools affecting interstate commerce A justification could be the effect of violent crime- people will not travel to unsafe places It could be a threat to the functioning of primary and secondary schools- national education is important to the economy

United States v. Lopez- III Arguments For Lopez (overturn the law and conviction) This case does not fall into all of the requirements of Perez Congress has to demonstrate a substantial link between its regulation and interstate commerce and it failed to do so here Even in the absent of findings are needed, this involves exclusively internal commerce of a state The Commerce Power may be broad, but it is not unlimited

United States v. Lopez- IV Chief Justice Rehnquist delivers a 5-4 decision Concurrence by Thomas He wants to overturn most of the previous precedent Concurrence by Kennedy, joined by O’Connor They see this as more limited to this particular case This act neither regulates commercial activity nor related to interstate commerce He quotes Madison  powers delegated are few and defined to the federal government, but numerous and indefinite to the states He then goes through a history of rulings on the Commerce Clause But Jones & Laughlin, Wickard and Darby were not without limits Only a rational basis needed

United States v. Lopez- V More from Chief Justice Rehnquist Three categories Congress can regulate under Commerce Power The use and channels of interstate commerce The instrumentalities of interstate commerce, even if activities are solely intrastate Activities that have a substantial relation to interstate commerce Rehnquist thinks this should be interpreted as “substantially affected” The first two are a no, so look to the third category He describes instances that did substantially affect interstate commerce, but were intrastate This does not have anything to do with commerce This statute contains no express jurisdictional element No Congressional findings to support the interstate commerce justificiation

United States v. Lopez- VI More from Rehnquist The government makes arguments as to how this might effect interstate commerce To accept this would mean Congress could regulate nearly every activity related to economic productivity of its citizens It would leave for no limits on federal power at the expense of states Whether an intrastate acticity is commercial can be legally uncertain They find in this particular situation, this in no way substantially effected interstate commerce Congress does fix the law The interstate commerce hook It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone

United States v. Lopez- VII Breyer, J. dissenting Joined by Ginsburg, Souter, and Stevens Stevens and Souter also dissented separately He has three basic principals He uses the word significantly rather than substantially One should not look at the individual act, but the cumulative effect of all similar instances The Court should not look at whether it significantly affects interstate commerce, but if Congress had a rational basis for concluding that He basically agrees with the arguments made by the government as to gun violence effect on public education and how it would negatively effect interstate commerce

United States v. Lopez- VIII More from Breyer He basically agrees with the arguments made by the government as to gun violence effect on public education and how it would negatively effect interstate commerce He has three primary objections This ignores longstanding precedent on this issue Commercial vs. non-commercial distinction Taking well settled law and making it uncertain He finds a rational basis for why Congress would enact this law, so he would uphold

United States v. Morrison (2000) Was Lopez an aberration or more sweeping? Printz and New York also limited federal power vis a vis the states Background A Virginia woman claimed two men at Virginia Tech had sexually assaulted and raped her He claimed it was consensual, and the university founded insufficient evidence against Crawford The found against Morrison and after a long process, he got probation and counseling Brzonkala filed suit against them and the university under the Violence Against Women Act of 1994- it provided a civil remedy for victims The District Court said Congress lacked the authority to pass this The Appeals Court upheld the district Court decision The United States decided to intervene and the case reaches the Supreme Court

United States v. Morrison- II Question: Did Congress have the power to enact this particular part of the Violence Against Women Act under either the Commerce Clause or the 14th Amendment? Arguments For the United States (law is constitutional) Congress found after long investigation that domestic violence burdens the national economy and interstate commerce by putting women in fear in the workplace and imposing costs on victims, and thus employers, insurers and state/local governments The Commerce Power is not confined to intrastate activities that are commercial or economic in nature The important thing is the impact on interstate commerce Gender based violence may occur at workplaces, retail establishments, interstate transportation  connection to economic activity

United States v. Morrison- III Arguments For Morrison (strike down law) Congress cannot regulate felonious conduct under the Commerce Power because the activity is non-economic in nature Lopez focused on the non-economic nature of what is being regulated The government’s argument would allow regulation of all human activity Morrison has a right to be free from an overreaching Congress

United States v. Morrison- IV Chief Justice Rehnquist rules for a 5-4 Court Justice Thomas also concurs for similar reasons as in Lopez Lopez stands for while the commerce clause is to be read broadly, it is not without limits  it must pass muster This is against decided under the third category of Lopez, since it fails #1 and #2 He then summarizes Lopez Along with it, he finds gender based crimes are not economic activity However, Congress does have a substantial amount of findings in this statute But findings do not sustain the constitutionality of a bill

United States v. Morrison- V More from Rehnquist On the findings The findings are similar to the rejected arguments in Lopez If their argument is accepted, Congress could regulate almost all crime It could also mean all family law could be regulated as well Her remedy is in the courts of the Commonwealth of Virginia, not federal ones

United States v. Morrison- VI Souter, J. dissenting Joined by Stevens, Ginsburg, and Breyer Breyer also dissents, joined by Stevens, Ginsburg and Souter The business of the Court is to review the assessment of Congress, not for the soundness, but for if there is a rational basis He also points out a reason for Lopez was the lack of record, when it is large here He also notes this act would have passed must anytime between Wickard and Lopez He thinks the Court is trying to take the country about to Carter Coal, Schechter, and National League of Cities Conceptual straightjackets It seems to now require economic activity to regulate

Next lecture We will finish up the Republican Court Era Pages 485-500