Shrinking federal powers.

Twenty years ago in his first inaugural address, Ronald Reagan promised a new federalism featuring significant reductions in federal authority and a greater role for state governments. Now five justices appointed to their current positions by Reagan and his successor, George Bush, are making that a reality. In the past five years, the Supreme Court has dramatically shifted course and has imposed significant new limits on federal powers.

From 1937 to 1995, no federal laws were declared unconstitutional for exceeding the scope of Congress's powers under the Commerce Clause. From 1937 to 1992, only one federal law was found to violate the Tenth Amendment, and that case was overruled less than a decade later. Until 1997, the Court broadly defined the scope of congressional power to enact laws enforcing the Fourteenth Amendment.

All of that has changed. In a series of 5-4 decisions, the Court has sharply restricted federal authority. The most recent case, United States v. Morrison,(1) narrows the scope of congressional powers under both the Commerce Clause and 5 of the Fourteenth Amendment. The decision likely will lead to constitutional challenges to an array of federal laws ranging from environmental to criminal to civil rights statutes.

Morrison considered whether the civil damages provision of the federal Violence Against Women Act is constitutional.(2) The provision authorizes victims of gender-motivated violence to sue for monetary damages.

Congress passed the act based on detailed findings that state laws are inadequate to protect women victims of domestic violence and sexual assaults. For example, Congress found that gender-motivated violence costs the U.S. economy billions of dollars a year and that fear of violence is a substantial constraint on women's freedom to travel.

The case was brought by Christy Brzonkala, who was allegedly raped by football players while a freshman at Virginia Polytechnic Institute. The players were not punished either in criminal court or by the university. Brzonkala filed suit against her assailants and the university under the Violence Against Women Act.

The issue before the Supreme Court was whether the civil damages provision of the act could be upheld as an exercise of Congress's authority under either the Commerce Clause or 5. The Court held that Congress lacked the authority to adopt the provision under either of these powers. Chief Justice William Rehnquist wrote the opinion for the Court, joined by Justices Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas. Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens dissented.

Commerce Clause

In 1995, the Supreme Court imposed substantial new limits on Congress's Commerce Clause authority in United States v. Lopez.(3) The Court declared unconstitutional the Gun-Free School Zone Act, a federal law that made it a crime to have a firearm within 1,000 feet of a school. The Court held that Congress can regulate under the Commerce Clause in only three areas:

* the channels of interstate commerce, that is, the places where commerce occurs;

* the instrumentalities of interstate commerce and the people or things involved; and

* the activities that have a substantial effect on interstate commerce.

The Supreme Court found that the law prohibiting guns near schools met none of these requirements.

In Morrison, the Court reaffirmed this three-part test and again found that it was not met. The U.S. government and the plaintiff defended the law on the ground that violence against women has a substantial effect on the national economy. But the Supreme Court expressly rejected this argument as insufficient to sustain the statute.

Rehnquist emphasized that Congress was regulating noneconomic activity that has traditionally been dealt with by state laws. Moreover, the Court stressed that there is no jurisdictional requirement in the statute necessitating proof of an effect on interstate commerce.

Although in the legislative history to the law, Congress presented detailed findings about the economic impact of violence against women, the Court said that Congress was relying on a "but-for causal chain from the initial occurrence of violent crime ... to every attenuated effect upon interstate commerce."(4) The Court also said that "[i]f accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption."(5)

The Court thus rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregated effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local."(6)

The Morrison decision means that Congress cannot regulate noneconomic conduct by finding that it has a cumulative effect on interstate commerce.

Fourteenth Amendment

Section 5 of the Fourteenth Amendment authorizes Congress to enact laws to enforce the amendment. In City of Boerne v. Flores, the Court imposed a significant limit on this power.(7) It held that under the section, Congress may not expand the scope of rights or create new rights; it only may provide remedies for rights recognized by the courts.

In the 1883 Civil Rights Cases, the Supreme Court held that the Fourteenth Amendment was concerned only with government conduct and that Congress could only regulate government behavior under it.(8) However, subsequent decisions clearly indicated that the Court had abandoned this restrictive interpretation, allowing Congress to remedy private violations of rights under [sections]5.(9)

But in Morrison, the Court reaffirmed the Civil Rights Cases, holding Congress may regulate only state and local government conduct; it may not regulate private conduct.(10) The Court rejected the claim that Congress could act to remedy inadequacies in state and local laws protecting rights from private infringements.

Implications

Many federal laws--for example, those adopted by Congress under the Commerce Clause--are sure to be objected to based on the narrow definition of Congress's power in Morrison and Lopez. Federal environmental laws, such as the Endangered Species Act,(11) are likely to be challenged on the grounds that these laws regulate conduct that does not involve the channels of interstate commerce, the instrumentalities of interstate commerce, or activities with a substantial economic effect.

This term, in Solid Waste Agency v. United States Army Corps of Engineers, the Court will decide whether Congress, under its Commerce Clause authority, may constitutionally act to protect migratory birds on intrastate wetlands.(12) This ruling could determine the constitutionality of many federal environmental laws.

Similarly, federal gun laws, such as those prohibiting someone from possessing a firearm while under a domestic violence protection order,(13) and many other federal criminal laws, are also likely to be challenged as exceeding the scope of Commerce Clause authority.

Morrison's limit on [sections] 5 powers will also lead to constitutional challenges to federal statutes. For instance, a federal civil rights law that creates a cause of action against private conspiracies to violate civil rights now seems vulnerable.(14) The Supreme Court has held that the law applies in certain circumstances, such as when there is interference with the right to travel, without a state action requirement.(15) But after Morrison, the law can no longer be justified based on [sections] 5 powers.

How far the Supreme Court will go in limiting Congress's powers is uncertain. But it is clear from Morrison that five justices are committed to enforcing their vision of federalism and limiting the scope of federal authority. Lawyers in almost every area of law will need to deal with Morrison and its implications of a sharply reduced federal regulatory power.

Notes

(1.) 120 S. Ct. 1740 (2000).

(2.) Id. at 1745 (considering the constitutionality of 42 U.S.C. [sections] 13981, which provides a federal civil remedy for victims of gender-motivated violence).

(3.) 514 U.S. 549 (1995).

(4.) Morrison, 120 S. Ct. 1740, 1752.

(5.) Id. at 1752-53.

(6.) Id. at 1754.

(7.) 521 U.S. 507 (1997).

(8.) 109 U.S. 3 (1883).

(9.) See, e.g., United States v. Guest, 383 U.S. 745, 759 (1966) (stating that Congress, under [sections] 5, may regulate private conduct); see also District of Columbia v. Carter, 409 U.S. 418 (1973).

(10.) 120 S. Ct. 1740, 1756.

(11). 16 U.S.C. [sections] 1538(a)(1)(1994).

(12.) 191 F.3d 845 (7th Cir. 1999), cert. granted, 120 S. Ct. 2003 (2000).

(13.) 18 U.S.C. [sections] 922(g)(8).

(14.) 42 U.S.C. [sections] 1985.

(15.) See Guest, 383 U.S. 745.

New federalism

Morrison makes clear that five justices are committed to limiting the scope of federal authority.

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Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California Law School.