United States v. Lopez
A nostalgic look at the commerce clause
Fall 2000
US v. Lopez
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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
Fall 2000
US v. Lopez
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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
Fall 2000
US v. Lopez
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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)
Fall 2000
US v. Lopez
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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?
Fall 2000
US v. Lopez
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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
Fall 2000
US v. Lopez
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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?
Fall 2000
US v. Lopez
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Gun-Free School Zones Act
• Regulation of Channels?
• Regulation of instrumentalities?
• Substantial Effects?
– Does possession of guns on school
campuses substantially effect IC?
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•
•
•
Fall 2000
increases trade in guns, bullets, coffins
helps control drug trade
obstructs educational process
lessens US preparedness in world economy
US v. Lopez
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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)
Fall 2000
US v. Lopez
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Evaluation by Court
of Substantial Effects
• Note: none of the 3 identified elements
(commercial trans; jdx’l element; findings)
are dispositive. Court still retains discretion to find no substantial effect
• How does Court do this analysis, i.e., determine the degree of a law’s necessity?
– especially against a backdrop of both houses
of congress and president determining that
national legislation is appropriate
Fall 2000
US v. Lopez
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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
Fall 2000
US v. Lopez
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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?
Fall 2000
US v. Lopez
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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?
Fall 2000
US v. Lopez
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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
Fall 2000
US v. Lopez
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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?
Fall 2000
US v. Lopez
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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
Fall 2000
US v. Lopez
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