Changing course: Lopez limits congressional powers.

From 1937 until April 26, 1995, the U.S. Supreme Court did not declare unconstitutional even one federal law as exceeding the scope of congressional powers under the Commerce Clause. For almost 60 years, it has been clear that Congress has broad authority to legislate under Article I, Section 8 of the Constitution, which empowers Congress to regulate commerce among the states.

So long as Congress had not violated another constitutional provision, such as the First Amendment, legislation adopted under the Commerce Clause had been upheld because almost any activity has some reasonable relationship to interstate commerce. A vast array of social and economic regulations was adopted under this power, ranging from civil rights laws to environmental protection statutes, from criminal laws to statutes creating most federal regulatory agencies.

The Supreme Court's decision in United States v. Lopez dramatically changed the law in this area, however. (No. 93-1260, 1995 U.S. LEXIS 3039 (Apr. 26, 1995).) By a 5-4 vote the Court declared unconstitutional the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a gun within 1,000 feet of a school. (18 U.S.C. [subsections]922(q)(2) (A), 921(a)(25) (1988 & Supp. V).)

Splitting along ideological lines, the Court ruled that the relationship to interstate commerce was too tangential and uncertain to uphold the law as a valid exercise of congressional commerce power. Chief Justice William Rehnquist wrote the opinion. He was joined by Justices Sandra Day O'Connor, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer dissented.

Lopez is an open invitation for lawyers to challenge the constitutionality of countless federal statutes adopted by Congress under its Commerce Clause authority. Depending on how aggressively the Court applies its holding in Lopez, literally hundreds of federal laws might be constitutionally vulnerable. Lopez is a major departure from precedent, and only time will tell the extent to which there will be major constraints on Congress's ability to deal with serious social problems.

Historical Background

Beginning in the late 19th century and continuing until 1937, the Court narrowly defined the scope of congressional powers and aggressively protected state sovereignty from federal encroachment. Then, as now, the Commerce Clause was by far the most frequent source for federal legislation regulating business and individual conduct.

During this time period, the Court narrowly defined commerce as involving only business transactions. Mining, manufacturing, and production were deemed outside the scope of Congress's Commerce Clause authority. For example, under this reasoning, the Court declared unconstitutional the application of antitrust laws to the production of sugar (United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895)) and invalidated a federal law prescribing maximum hours for workers (Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936)).

The Court during this time period also held that Congress could regulate only activities that had a direct effect on interstate commerce. For instance, a federal law preventing the sale of sick chickens was declared unconstitutional even though most chickens were shipped across state lines, because the relationship to interstate commerce was deemed too remote. (A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 550 (1935).)

The Court believed that the Tenth Amendment reserved control of activities such as mining, manufacturing, and production to state governments; federal laws regulating these areas were deemed to violate the Tenth Amendment. In Hammer v. Dagenhart, the Supreme Court declared unconstitutional the federal law that outlawed the shipment in interstate commerce of goods made by child labor. (247 U.S. 251 (1918), overruled in part by United States v. Darby, 312 U.S. 100 (1941).) The Court concluded that the effort to control production violated the Tenth Amendment.

Together, these doctrines placed a substantial restriction on congressional powers and led to the invalidation of key pieces of New Deal legislation. An angry President Franklin Delano Roosevelt responded with his infamous Court-packing plan. He sought legislation enabling him to appoint an additional judge for each one over age 70 who had served at least 10 years on a federal court, to increase the number of justices to a maximum of 15. The result would have given Roosevelt an immediate majority on the High Court.

Whether in response to this political pressure or just coincidentally, in 1937, the Court changed course. In NLRB v. Jones & Laughlin Steel Corp., the justices upheld broad congressional power to regulate labor unions under the Commerce Clause. (301 U.S. 1 (1937).) The Court discarded any distinction between commerce and other types of business and described the scope of congressional power in broad language.

From 1937 until Lopez, not one federal law was declared unconstitutional as exceeding the scope of Congress's power to regulate commerce among the states. In several cases, the Court appeared to accord Congress sweeping authority to regulate any activity that, taken cumulatively, affects interstate commerce.

For example, in Wickard v. Filburn, the Court upheld a federal law regulating the amount of wheat that farmers grow for their own home consumption. (317 U.S. 111, 128-29 (1942).) The Court explained that homegrown wheat, looked at across the country as a whole, had a significant impact on national wheat prices.

Two decades later, the Court held that Congress could use its commerce power to prohibit racial discrimination by hotels and restaurants because cumulatively this discrimination has an adverse impact on interstate commerce. (See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-53 (1964); Katzenbach v. McClung, 379 U.S. 294, 299-301 (1964) (upholding Title II of the Civil Rights Act of 1964).)

The conclusion from these and other cases is that Congress was accorded broad authority to legislate under the Commerce Clause. Indeed, a law adopted under this power would be upheld so long as Congress did not violate some other constitutional provision or act in a clearly unreasonable manner.

Lopez Holding

Alfonso Lopez was a 12th grade student at Edison High School in San Antonio, Texas, in 1992 when he was arrested for carrying a concealed .38-caliber handgun and five bullets. He was charged with violating the Gun-Free School Zones Act of 1990, which made it a federal offense "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." (18 U.S.C. [sections]922(q)(2)(A) (1988 & Supp. V).)

The law defines a school zone as "in, or on the grounds of, a public, parochial or private school" or "within a distance of 1,000 feet from the grounds of a public, parochial or private school." (18 U.S.C. [sections]921(a)(25) (1988 & Supp. V).) Lopez was convicted of violating this law and was sentenced to six months in prison and two years' supervised release.

Lopez appealed on the ground that the statute was an unconstitutional exercise of Congress's commerce powers. The Court agreed and concluded that the law was unconstitutional because it was not substantially related to interstate commerce. (1995 U.S. LEXIS 3039, at *22.)

Rehnquist's opinion for the Court began by emphasizing that the Constitution creates a national government of enumerated powers. (Id. at *5.) In other words, Congress can legislate only if there is express or implied power provided in the Constitution. After reviewing the history of decisions under the Commerce Clause, the Court identified three types of activities that Congress can regulate under this power.

First, Congress can "regulate the use of the channels of interstate commerce." (Id. at *17.) The Court cited the Heart of Atlanta Motel decision, which upheld the federal law prohibiting discrimination by hotels and restaurants as an example of protecting the channels of interstate commerce.

Second, the Court said that Congress may legislate "to regulate and protect the instrumentalities of interstate commerce." (Id.) The Court here cited several cases upholding congressional power to regulate the railroads under its commerce power. (See, e.g., Houston, East & West Texas Railway Co. v. United States (Shreveport Rate Case), 234 U.S. 342 (1914).)

Third, the Court said that Congress may "regulate those activities having a substantial relation to interstate commerce." (1995 U.S. LEXIS 3039, at *18.) Rehnquist said that the law was uncertain as to whether an activity must "affect" or "substantially affect" interstate commerce to be regulated under this approach. He concluded that the more restrictive interpretation of congressional power is preferable and that "the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce." (Id. at *19.)

The Court concluded that the presence of a gun near a school did not substantially affect interstate commerce, and, therefore, the federal law was unconstitutional. Rehnquist noted that nothing in the act limited its application to instances where there was proof of an effect on interstate commerce.

The Court rejected the federal government's claim that regulation was justified under the Commerce Clause because possessing a gun near a school may result in violent crime that can adversely affect the economy. Rehnquist wrote,

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. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

(Id. at *33-34.)

Kennedy and O'Connor joined in a concurring opinion. They explained that federalism requires a limit on congressional powers to preserve state governing authority. They concluded that state and local governments could deal with the problem of guns near schools and that in fact, "over 40 States already have criminal laws outlawing the possession of firearms on or near school grounds." Id. at *59 (Kennedy, J., concurring).)

Thomas wrote a separate concurring opinion. He sharply criticized post-1937 constitutional law as abandoning the proper limits on Congress's commerce powers. It appears he would favor much stricter limits on congressional powers than those adopted by the majority, but his overall conclusion is uncertain.

In a footnote, he declared, "Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years." (Id. at *92 n.8.) He does, however, conclude that the majority's approach "should not be viewed as `radical'" and that "we ought to temper our Commerce Clause jurisprudence." (Id. at *92.)

Breyer, Souter, and Stevens wrote dissenting opinions. Breyer's dissent was the most thorough, and he was joined by the other dissenting justices - Ginsburg, Souter, and Stevens. The dissent criticized the majority for engaging in undue judicial activism, abandoning almost 60 years of precedent, and invalidating an important federal statute.

Breyer argued that the judiciary should uphold a federal law as a valid exercise of the commerce power so long as there is a "rational basis" that an activity affects interstate commerce. (Id. at *120.) He then explained why guns inherently are a part of interstate commerce and why guns near schools have an economic impact that justifies federal regulation under the commerce powers.

In Lopez, the five most conservative justices - one who was appointed by President Nixon, three who were appointed by President Reagan, and one who was appointed by President Bush - invalidated an unquestionably popular federal statute. Although these justices are most commonly associated with advocating judicial restraint, in Lopez they abandoned almost 60 years of deference to the legislature under the Commerce Clause. The narrow definition of congressional powers gives the Court a basis for striking down countless federal laws.

For example, innumerable federal criminal laws have been adopted under Congress's commerce powers. Many federal drug laws might be vulnerable because they regulate activities that are only tangentially related to interstate commerce. Similarly, some federal environmental statutes might not be able to withstand this narrower definition of congressional authority. For instance, is the protection of endangered species something that "substantially affects" interstate commerce?

Numerous federal regulations might be invalidated as having too remote a relationship to interstate commerce. In fact, the proposed federal legislation now pending in Congress to reform medical malpractice law and products liability law may be constitutionally vulnerable after Lopez. A doctor's negligence and liability may be found too remotely related to interstate commerce to permit federal legislation.

The impact of Lopez and the extent to which it will radically change congressional powers and constitutional law will not be known for many years. The majority opinion did little to explain what the "'substantially affects' interstate commerce" test means. No criteria were articulated to be used by lower courts or by the Supreme Court in the future.

Thus, lawyers have every incentive to challenge the constitutionality of federal statutes whenever doing so will aid their client. The Lopez decision opened a door to constitutional challenges that appeared to have been closed almost 60 years ago, and there is no doubt that hundreds of federal laws will be contested.

Only time and additional Supreme Court decisions will tell the extent to which the case signals a return to pre-1937 Commerce Clause jurisprudence and how much the Court is going to limit congressional powers.