1. Fall 2000US v. Lopez1 United States v. Lopez A nostalgic look at the commerce clause

2. Fall 2000US v. Lopez2 Principles from previous cases Federal gov’t is one of enumerated powers –When acting within the enumeration, it has plenary power which includes incidental and implied powers whether a particular law (MEANS) is necessary to carry out one of the enumerated powers (ENDS) is a matter for congress to decide –unless the MEANS are arbitrary, irrational, or prohibited by the constitution

3. Fall 2000US v. Lopez3 Background Principles - 2 Reservation of state powers –enumeration suggests some powers not given –confirmed by the 10th amendment Power over commerce both given & reserved –Congress has power over interstate, int’l, & indian –Power over intrastate commerce not in § 8 reserved to states

4. Fall 2000US v. Lopez4 Splitting the atom of sovereignty Distinction between inter- & intra-state commerce –Why? to preserve as much state autonomy as possible and avoid a “completely centralized government.” –What? commere which concerns more than one State vs. commerce wholly internal to individual State “which does not extend to or affect other states.” –Importance distinction is fundamental to the maintenance of our constitutional system (at least in 1787)

5. Fall 2000US v. Lopez5 Inter- Intra-State Distinction Original intent –to restrict respective spheres of power of state and nat’l governments –at least where federal intrusion is unnecessary Modern application –in the 21st century, is there any such thing as wholly intra-state commerce? is there intra-nation (domestic) commerce, or is all commerce global?

6. Fall 2000US v. Lopez6 Efforts at Drawing Lines Late 19th / early 20th century –era of “dual federalism” –formal distinction between direct and indirect effects on interstate commerce New Deal –great expansion of national power dissatisfaction with laissez faire –relaxed test aggregate effects Late 20th century Rational Basis test

7. Fall 2000US v. Lopez7 Categories of Interstate Commerce Channels of IC –transportation systems (e.g., roads, air routes) –interstate shipments, accommodations Instrumentalities of IC –vehicles, vessels –persons or goods in transit Activities w/ substantial relation to IC –Intrastate activities w/ substantial effect on IC difference betw. substantial & insubsubstantial? who decides?

8. Fall 2000US v. Lopez8 Gun-Free School Zones Act Regulation of Channels? Regulation of instrumentalities? Substantial Effects? –Does possession of guns on school campuses substantially effect IC? increases trade in guns, bullets, coffins helps control drug trade obstructs educational process lessens US preparedness in world economy

9. Fall 2000US v. Lopez9 Proving Substantial Effects Commercial transactions –sale of gun, yes –mere possession of gun, no Jurisdictional element –proof that gun had traveled interstate –must be element of prima facie case Legislative findings –aids court in determining link would court defer to congress? no rubber stamp (obliterate distinction)

10. Fall 2000US v. Lopez10 Evaluation by Court of Substantial Effects Note: none of the 3 identified elements (commercial trans; jdx’l element; findings) are dispositive. Court still retains discre- tion to find no substantial effect How does Court do this analysis, i.e., de- termine the degree of a law’s necessity? –especially against a backdrop of both houses of congress and president determining that national legislation is appropriate

11. Fall 2000US v. Lopez11 Text & Subtext of Opinions Reqhnquist (majority) –Reassert judicial supremacy over federalism Rejects congressional determination of causality –Maintain some residuary of states rights Reduce power of nat’l gov’t Reduce economic regulation Kennedy (concurrence) –federalism balance primarily (not entirely) entrusted to political process framers seem to enact & prefer structural mechanisms lack of findings or attention by congress may undermine those structural protections also lacking are structural restraints on congress

12. Fall 2000US v. Lopez12 Traditional State Concerns Judiciary to remain vigilent in areas of traditional state concern –locks us into an originalist vision of state power What is the “traditional state concern” here –Education Is this in fact a traditional or current state concern? –Guns Is the court well suited to balance? –national need for gun controls vs state control over education?

13. Fall 2000US v. Lopez13 Thomas Concurrence Commerce to be restricted to meaning understood by the framers –excludes other economic activities manufacturing, agriculture labor –formalist distinction between inter- & intra- rejects substantial effects test tantamount to granting congress police power –expansion of federal power in 1930s was a wrong turn how would he decide McCulloch and other cases?

14. Fall 2000US v. Lopez14 Breyer Dissent This case about SoP as much as federalism –substantial effects test overrules rational basis –could congress have “rationally” found a link between guns on school campuses and IC effects? immediacy of connection (the degree of a law’s necessity) is to be discussed in another place –formalism in Lopez rule allows court to substitute its economic judgment for that of congress Majority opinion disregards precedent

15. Fall 2000US v. Lopez15 Souter/Kennedy Dissent Majority opinion a paragon of radical judicial activism Previous assertions of judicial primacy in this area went terribly astray Rejects originalism –“Whether national interest in eliminating [gun trade] would have justified federal legislation in 1789, it surely does today.” –Is this the correct test?

16. Fall 2000US v. Lopez16 Stevens Dissent Guns are articles of commerce –i.e., they are bought, sold and traded –Why doesn’t court add this to its 3-part list of valid objects of congressional regulation? any trade in an article of commerce involves interstate commerce (no such thing as local market) this factor distinguishes objects of regulation that are truly local –family law