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

2. This lecture We move to the Rehnquist Court
New limits are restored to the Commerce Power
Lopez and Morrison
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3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. Next lecture
We will finish up the Republican Court Era
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