The Commerce Clause United States v. Lopez Lopez is a revolutionary decision in American jurisprudence!

! Congress passed a statute (the Gun-Free School Zones Act of 1990) providing for federal criminal sanctions against people who went into a school zone with a gun. The defendant was caught with a gun on school premises and was charged under the federal law. The defendant challenged the statute as unconstitutional. In particular, he argued that banning guns from schools wasnt one of the powers enumerated to the federal legislature in Article I of the Constitution. The district court didnt buy the argument, saying that the power of the statute was allowed under the Commerce Clause. The defendant ultimately was convicted. He appealed his conviction to the Fifth Circuit, which overturned the conviction, saying that the statute went beyond the bounds of the Commerce Clause. The United States appealed to the Supreme Court. Is Congress given the power by the Constitution to regulate guns in schools under the Commerce Clause? The Constitution has been interpreted by the Supreme Court such that Congress has three broad areas of power under the Commerce Clause: (1) to regulate the use of channels of interstate commerce, (2) to regulate and protect the instrumentalities or persons or things in interstate commerce even if they only relate to intrastate activities, and (3) to regulate activities having a substantial relation to interstate commerce. The majority finds that if the Gun-Free School Zone statute has a constitutional basis, it must be in the third area of power. So the question is whether the statute regulates activities that are related to interstate commerce. The Court sets down new precedent in declaring that such activities must substantially affect interstate commerce and not just affect it.

The Court finds that the statute has nothing to do with commerce. There is also no requirement in the statute that the offense punished has some relationship to commerce. Even if there was that requirement, it would have to be proven in each case beyond a reasonable doubt that there was sufficient connection between the offense and the regulation of interstate commerce. The Court rejects the governments argument that firearms in schools are actually substantially related to interstate commerce. The Court reasons that if guns in schools are related, then pretty much anything can be related, including stuff like marriage, divorce, child custody, and direct regulation of education. The Court figures that the Framers couldnt have possibly meant for the Commerce Clause power to be this broad. Lopez was convicted of violating the Gun-Free School Zone Act. You cant carry a gun within 1000 feet of a school zone. This statute was enacted by the U.S. Congress. Why is it significant that Congress passed this law versus, say, the Texas legislature? Well, what were concerned about is congressional power as opposed to the power of state legislatures. How did the court get the Supreme Court? The Fifth Circuit vacated the conviction. There was no dispute about whether he had a gun. He was caught red-handed and there is no question whether he violated the law. The appeal was thus not on the basis of any reasonable doubt of fact or anything like that. How do you know if youre in a school zone under this law? A school zone is within 1,000 feet of a school. Why is this important? Someones violating the law. As a person living in the state of Texas, would they know whether they were in violation of this law? Do people go around carrying tape measures all the time? But there was no factual dispute. Lopez doesnt claim he was 1,003 feet from the school.

Whats the basis for the appeal if theres no factual dispute? The only claim Lopez has on appeal is that the law is unconstitutional because its beyond the scope of the enumerated powers of Congress. Lopez wins in the Fifth Circuit and the Supreme Court agrees to review the case. What does the Supreme Court say after granting cert? The Supreme Court decides that the law was unconstitutional. The Supreme Court says: No, Congress, you lack this power. But why? What does the phrase piling inference on inference explain the holding of the case? Possessing a gun in itself is not directly related to interstate commerce. But you could argue that having a gun could cause violent crime which could cause increased insurance rates and so on. The argument is in the nature of A leads to B leads to C leads to D and D is related to interstate commerce. Lets look at Article I, 8 which is the big list of powers of Congress. Its a big list, but its a finite list. Dont forget the last power, which is a biggie: making laws that are necessary and proper to execute the listed powers. Keep the Necessary and Proper Clause in mind here. Whenever theres a challenge to a federal statute, the government only has to show theres one power to support the law. In order for Lopez to prevail, he must show that Congress doesnt have the power to pass this law under any of the enumerated powers. Thats a tough standard! This is important not only for questions of congressional power, but also for any questions about who has what powers and who has the burden of proof to show that something is within the power of a part of the government.

Why doesnt Lopez try to win this appeal on Second Amendment grounds instead of Commerce Clause grounds? The Supreme Court hadnt invalidated a statute on the basis of the Commerce Clause in a heck of a long time. There also hadnt been a Second Amendment case in the Supreme Court for a heck of a long time. Was this a tactical move? Was the Court more willing to move on the Commerce Clause than on the Second Amendment? Lopez has been around for almost a decade and people are pretty comfortable with it. But when Foley took this class 20 years ago, Foley learned from his professor that any attempt to argue that something was out of the scope of the Commerce Clause was a sure loser under the Courts jurisprudence. In other words, Congress could pretty much do whatever it wanted and find some link to the Commerce Clause. Foleys professor turned out to be completely wrong! So keep in mind that the law can change! Congress cant just do whatever it wants anymore. If that was the accepted wisdom, why the heck would Lopezs lawyer have tried this appeal on Commerce Clause grounds? If you dont make the Second Amendment argument in trial court you lose it on appeal. But that just means that the attorneys should have brought up both defenses. By 1992, when Lopez gets caught red-handed, hes got bad precedent under the Second Amendment (Miller from 1939) because hes not a member of a militia and he gets caught with a gun near a school. But moreover, most people in 1992 would say he didnt have a very good Commerce Clause argument either. Presumably Congress passed this law because they were concerned about guns in schools. Congress thus thought this issue was of national importance and couldnt be left to the states. The Supreme Court says that Congress lacks the authority to address

this issue of national concern, no matter how important it is! This is a big deal! Did some of the justices have a bone to pick? Was there an ideological deal here? Foley says thats not whats going on here. The United States government lost this case in the Court of Appeals, which found that the statute was unconstitutional under the Commerce Clause. The Court of Appeals did this in the face of the widespread belief otherwise. The Solicitor General of the United States wanted this reviewed, and the Supreme Court couldnt leave the last word in the lower court since an act of Congress was being struck down. Two types of constitutional questions Whenever youre dealing with an act of Congress, or really any action by the federal government in general, you have to think about two different types of constitutional questions that could arise. The power question Does Congress have the authority to enact this law? Is it within the scope of authority granted to Congress by the Constitution? Congress cannot act unless it has been given authority (or power) by the Constitution to act. You must find a place for Congress to act. You only have to find one, but you do have to find that one basis for authority. This is sometimes called the doctrine of enumerated powers. If some things are enumerated, it means that some things are not enumerated. Congress doesnt have unlimited powers. The list includes the Necessary and Proper Clause. The list of Congresss enumerated powers started out with exactly the powers listed in Article I, 8. But now there are additional powers granted to Congress added by amendments. Check out 5 of the

Fourteenth Amendment: Congress can now enforce the provisions of the amendment. Its a new power that gets added to the list! There are lots of other little provisions like this that add on. But you need to find the power you want among those listed. The rights question Even if something is within the scope of the enumerated powers, it may violate a rights provision of the Constitution, like one of the provisions of the Bill of Rights. Something can be inside the scope of a power provision, but Congress could still be prohibited from doing that thing if it would abridge a right out of the Bill of Rights. Say Congress passed a law that said it would be unlawful for pornography to be trafficked in interstate commerce. Those are things in interstate commerce. This is within the scope of the Commerce Clause power. However, it may violate the First Amendment free speech right. State versus federal powers With respect to the Federal Constitution, the distinction between power questions and rights question only applies to acts of the Federal Government. The Federal Constitution doesnt purport to define the limits of state power. States are assumed to have general police powers. States can do whatever they want, unless it conflicts with a specific right granted by the Constitution. With respect to state laws, we will deal only with rights questions. Analytically, the power question always comes first. Its a threshold question. The Constitution affirmatively says what Congress can do, specifically says what Congress cant do, and finally says what states cant do. Consequences of Lopez If this law is no good, what other laws are no good? What about the Endangered Species Act? What gives Congress the power to

pass such a law? Well find that people revert to the Commerce Clause when they want to assert that Congress has the authority to do something. What do endangered species have to do with commerce, and isnt that a similar question to what do guns near schools have to do with commerce? How does this case relate to the Commerce Clause at all? How could Congress possibly think that this law that theyve enacted saying you cant possess a gun within 1,000 feet of a school is related to interstate or international commerce or commerce with Indian tribes? Congress might not have anticipated any problems. They may have assumed they wouldnt have to jump through this hoop anymore. Historically, the doctrine of enumerated powers had kind of fallen by the wayside. Congress saw the commerce power as so large that more or less anything goes. How could Congress have gotten to think that way in the first place? There has been a lot of case law that has spoken about the scope of the Commerce Clause. The Court itself gives us a history lesson in the opinion. Chemerinsky will give us a slightly different interpretation. Some things are pretty uncontroversial. A key truth to the history of the Commerce Clause is that the Court had said that the scope of Congresss power isnt just things moving across state lines, but also anything located within a single state that might affect commerce that moves across state lines. In other words, there may be things that are purely intrastate, and thus are not themselves part of interstate commerce, but nonetheless may affect (or substantially affect) interstate commerce, and thus be within the scope of the commerce power. Were going to let Congress regulate interstate commerce itself, and were also going to let Congress regulate things confined to a single state that substantially affect interstate commerce.

Breyer, in his dissent, says he will use three principles of Commerce Clause interpretation to answer the question before the Court. (1) Congress may regulate local (intrastate) activities so long as they significantly affect interstate commerce. (2) When determining whether an activity has a significant effect, a court should consider the cumulative effect of all similar instances of the activity. (3) Courts must judge the connection between an activity and interstate commerce at one remove. In other words, courts should uphold actions of Congress for which there is a rational basis under the Commerce Clause. Breyer says the question boils down to Congress could have had a rational basis for finding a substantial connection between gun related school violence and interstate commerce. Breyers approach is to document lots and lots of independent studies and congressional findings that indicate that (1) the problem of guns in schools is serious and widespread, (2) guns in schools have a negative effect on classroom learning, and (3) education has a substantial impact on interstate commerce. Breyer claims that holding this statute constitutional would not expand the powers of Congress under the Commerce Clause, but instead would apply existing law to changing circumstances. Breyer claims that the majoritys approach has three legal problems: (1) The Court has upheld statutes that have less of a relationship to interstate commerce than the one under consideration. (2) The Court makes an improper distinction between commercial and non-commercial activities that doesnt adequately distinguish previous cases where the Court has upheld statutes. In particular, the Court has upheld civil rights statutes in cases where Breyer claims the conduct involved was even less commercial than the conduct here. (3) The Court will create

upheaval in an area of law that was previously well-settled: it will call into question the extent of the power of Congress to enact all of the federal criminal statutes on the books. Breyer suggests that the majoritys opinion offends stare decisis. Breyer does not see the parade of horribles of the majority coming to pass. Three justices join Breyer in his dissent. Breyer was just one vote shy of the majority. This was a 5-4 decision. This was one of those razor-thin majorities. How did Breyer analyze the Commerce Clause issue in this case? He seems to argue for and use the rational basis test. Why is this different from the majoritys understanding of the case? Whats the scope of the disagreement between the dissent and the majority? Do they apply the same principles but get to different results, or do they actually disagree on basic principles? So Breyer makes a rational basis inquiry. The majority does something different.[1] Is Breyer almost proposing a procedural test rather than a substantive test of the limits of the Commerce Clause? Part of what Breyer seems to be saying is that we should consider the issue in a practical way instead of a technical way. How much of a connection is there between guns in schools and economic problems? But this isnt the rational basis distinction: Breyer says were not reviewing whether or not X is true, but rather whether or not Congress had a rational basis for thinking that X is true. The X in this case is guns in schools substantially affect interstate commerce.

How close a connection does there have to be in order for there to be a substantial effect? (1) Is there a substantial effect on interstate commerce? Both the majority and dissent believe this question must be asked. Just what is it thats supposed to have a substantial effect on interstate commerce? Breyer wants to aggregate the effects of all acts of guns in schools. (2) Does this class of activity have a significant effect on interstate commerce? This is what Breyer wants to know, but the majority doesnt take it this way. Wickard v. Filburn Wickard is very important! This is the case of an Ohio farmer growing his own wheat for his own use. He was allegedly in violation of a statute limiting the amount of wheat he could grow on his farm. He grew too much! He claimed that he wasnt selling the wheat in his state or any other state. So he argued that the federal government must not be regulating his commerce when all he is doing is growing wheat at home and using it at home. The Court, in that case, said that if you take the one farmer together with other similar farmers there will be a substantial effect on interstate commerce. The Court says that Wickard is as far as the Court has ever gone before, and they more or less say that theyre not going to let congressional Commerce Clause power to go much farther. How does consuming home-grown wheat affect interstate wheat? The idea of the statute was to decrease the supply to increase the price and help the farmers. If you grow your own wheat, you dont have to buy it on the open market, and thus youve reduced the demand for wheat and in turn the price will go down. So under Wickard, the government has the power to prohibit people from home-growing tomatoes or whatever other crop theyd

like. But notice what the statute in question in Wickard does: it doesnt regulate any activity that we could properly call interstate. Instead, it regulates a purely intrastate activity. The majority says that weve gone that far and wont go farther. Breyer says that weve already gone that far, and the guns in schools statute doesnt go that far. The aggregation principle The majority acknowledges that Wickard adopted the aggregation principle. But does the majority believe that this applies to guns near schools? Do they apply this principle and get a no answer? Or do they claim that the aggregation principle only applies to cases like Wickard but not to Lopez? The majority opinion says we accept the aggregation principle with respect to local activity that is economic in nature. If the local activity has an economic character to it, you can aggregate that to see if all similar local activity has an impact on interstate commerce. If the local activity is not itself economic, the Court isnt sure if theyll extend the aggregation principle. How is growing tomatoes at home, for example, an inherently economic activity? Is raising kids at home an inherently commercial or economic activity? Where do we draw the line between (local) economic and non-economic activity? The majority opinion labels growing wheat at home as an economic activity. That allows for aggregation. However, possessing a gun near a school is not economic in nature. Breyer asks: How can we tell that having a gun near a school is non-economic in nature? Lopez didnt make the gun. He either

had to buy it, steal it or get it as a gift. If he bought it, thats economic. If he stole it, thats kind of economic. If it was given as a gift, someone else bought it, and thats arguably economic. How do we draw the distinction? What makes something economic? What about child-rearing? If growing wheat at home is economic, isnt child-rearing economic too? It means the child care provider is out of the labor force and also isnt hiring a nanny or someone else to take care of the kids. Breyer says it doesnt matter whether a gun is economic in itself. It doesnt matter if wheat is economic in itself. The issue is whether those guns near schools have an economic effect. Breyer believes that they do: guns near schools leads to violence near schools. That leads to bad schools and bad educational quality, which in turn drains our economy. Breyer believes that you always aggregate. The majority believes you only aggregate when youre dealing with something economic. The majority cares about whether or not the local activity that Congress is attempting to regulate is itself economic in nature or not. The majority doesnt explicitly repudiate the aggregation principle with respect to non-economic activity, but you can argue that they do this implicitly. Theres a lot going on here! Even though we had relatively few pages to read, they are very difficult conceptually. But its our job to understand it! Dont worry if youre confused today. Realize that theres a lot going on here. Its not transparent and we have to really work to figure out whats really going on here. The rational basis idea

We looked at two questions that define the substantive test as to how you know whether or not you have congressional power under the Commerce Clause. The substantial effect test is usually where the action is. In order to know whether theres a substantial effect, you have to ask whether the local activity in question is economic in nature. But theres a third question: Breyer says that all the past precedents show that when the case comes to court, the issue isnt simply is there an effect?. Thats the question for Congress to answer. Breyer wants to claim that the courts own view on the substantial effect question doesnt matter. The court is only supposed to make sure that Congress was rational or reasonable, that is, that Congress had a rational basis for finding a substantial effect. Breyer thus claims that the court should be making a somewhat different inquiry than the majority wants to make. Yesterday was great! Foley likes when people come up after class to ask questions! Theres a lot going on here, and we cant get it all in within an hour. There was a formative period under Chief Justice Marshall, who issued the McCulloch v. Maryland decision. Thats a landmark decision that created a framework for talking about congressional power as a whole. Also, Marshalls reasoning interpreted the Constitution in general, rather than any particular phrase or section. He didnt look at the word necessary or the word proper and determine what those words mean. Instead, he looked at the Constitution in general. Why do we have a Constitution? What function does the Constitution have? These questions gave him the guidelines for his understanding of, in particular, the Necessary and Proper Clause. He had a choice: he could have interpreted the Necessary and Proper Clause much more narrowly and restrictively and found

that the creation of the Bank of the United States was outside of Congresss power. He didnt choose the narrow path, he chose the broad path. This case is important today because we must be aware that the concept of general reasoning is available to the Court, if it so chooses, as a methodology to think about constitutional problems when they arise for the first time. The Court doesnt always take this approach, though. The Court will sometimes take a more word-specific approach. Marshall also issued the first opinion that interpreted the Commerce Clause: Gibbons v. Ogden. Here are four key decisions that set the stage prior to Lopez. Schecter Poultry This case was decided in 1935. Its the sick chicken case. This case occurred at the time of the New Deal. The country is in the midst of the Depression. The unemployment rate is 25%. Congress and President Roosevelt are trying to deal with what they see as an unprecedented economic calamity. Congress passes a lot of New Deal legislation. One key piece of legislation was the National Industrial Recovery Act, which regulated the wages and hours of workers in many different industries. The Supreme Court unanimously held that regulating the wages and hours of workers in a factory in Brooklyn is beyond Congresss commerce power. The new law was invalidated. The Supreme Court ruled that even though the chickens moved in the stream of commerce, the workers only worked in Brooklyn and thus their wages and hours were a matter solely for the state of New York to deal with. Note that this law applied to every slaughterhouse everywhere.

Why did the people in Philadelphia in 1787 scrap the Articles of Confederation and give the U.S. Congress more power with this Commerce Clause? Compare this to NAFTA or the current Summit of the Americas. Prior to the adoption of the Commerce Clause, the states of the United States were engaged in protectionist measures against each other. The Commerce Clause, at least in one view, was originally a free trade measure among the states. It was meant to fight economic Balkanization. In contemporary terms, we can compare this to the European Union. The framers of the Constitution wanted to create a free-trade agreement between the original thirteen states. Thats all the Commerce Clause was originally designed to do. Now fast forward to 1935. If you were to ask James Madison, who came up with the Commerce Clause, about a shop in Brooklyn, he would say thats not what we meant! He would say that they were only concerned with free trade between New York and, say, New Jersey. In addition, the Commerce Clause allows Congress to regulate foreign trade. The point is that nothing that we talk about today would make any sense to the framers of the Constitution. Congress has the power to regulate WHAT??!! They wouldnt even be able to understand our conversation. Whats going to be difficult to think about is when we get to the point where we can start having a conversation like we did yesterday. James Madison did not believe that Congress had the power to create a national bank. He had a much narrower understanding of the Commerce Clause than we do. In fact, he had a narrower

understanding than Marshall did in McCulloch. Our sense of the Constitution is radically different from the conception of the people who originally wrote the document. Carter Coal This case is one year later. Were still in the Depression. Congress and Roosevelt adopt a new law that regulates the coal industry in particular. They believe that coal is particularly important to the national economy. Its important for running the railroads and making steel. Congress says: We wont do poultry, but lets do coal. They plan to regulate the wages and hours of coal workers because that affects the price of coal. But by a 5-4 decision, the Supreme Court says that Congress cant do that! They reason that a coal mine is not interstate in nature because each mine is located in only one state. Therefore, the wages that a mine worker gets for working in that particular mine is a local issue of the state where the mine is located. Each state controls the conditions within the mines within that state. The Court believes that it matters neither that the coal will enter the stream of interstate commerce, nor that Carter Coal does business in many different states. The subsequent entry of the coal into interstate commerce doesnt matter. But notice that now were starting to get a split. Jones & Laughlin This case comes up in 1937. This case involves the National Labor Relations Board. Congress comes up with a new law to govern working conditions: hours, wages, and so on in many different industries. The statute looks a lot like the NIRA above, but the case looks more like Carter Coal. The issue is: Can Congress regulate the rules of the employees of this company when they work in the mines or in particular factories? If you considered Schecter Poultry and Carter Coal as precedent, you might think the conclusion is obvious and the law

cant stand. But in a reversal, the Supreme Court by a 5-4 margin allows the law to stand as applied. The Supreme Court argued that steel is essential to the health of the national economy, and thus steel worker strikes would cripple interstate commerce. This is exactly the reverse of the reasoning in Carter Coal, that is, its the reasoning of the dissenter. The same argument from the dissent in the previous case becomes the prevailing argument in this case. Why does the transformation happen here? Roosevelt was going to pack the court. But note that there are no changes in appointments to the court between 1935 and 1937. The exact same nine individuals who decided Schecter Poultry unanimously and then decided Carter Coal decided Jones & Laughlin entirely differently. Roosevelt and Congress are losing cases. He wont accept what the Supreme Court says. Also note that 1936 is an election year. Roosevelt runs a campaign essentially against the old farts on the Supreme Court. He claims theyre totally out of touch with reality and that its really their fault that the Depression hasnt abated. It was a pure political power move (I think). Roosevelt announced after a landslide victory that hes going to pack the Court (thats not what he called it, of course). He was going to destroy the Supreme Court as an institutional of American government as it had heretofore existed because it was getting in the way. The President was going to more or less sweep the Supreme Court into the dustbin of history because they were getting in the way! The Supreme Court justices read the newspaper and they pay attention to whats going on. They realize that they cant win this fight! They act to save their institution! Aint this exciting?

Justice Roberts switched sides! It seems like what he did was switched his vote to save the institution. That worked! That was enough to shut Roosevelt up. The Senate stopped holding hearings on the court-packing plan. This is power politics! This is reality! This was a huge transformation in the understanding of the Commerce Clause. It didnt happen by way of a constitutional amendment. Roosevelt considered this but rejected it. Roosevelt felt that the only way you could trust the Court was by packing the court. Thus, a whole new way of understanding the Commerce Clause emerged. Wickard v. Filburn We have some more appointments, but we have more or less the consolidation of Roosevelts power. The ethos is: Congress can do pretty much whatever it wants in the name of protecting the economy. It is instructive to compare Schecter Poultry and Wickard. The tomatoes or wheat being grown at home are agricultural and local in the way that chickens are also agricultural and local. Seven years after Schecter Poultry, they go from saying no you cant regulate it to yes you can! These cases are not consistent doctrinally. They represent two radically different ways of understanding the Commerce Clause. Now fast-forward to right before Lopez: between Wickard in 1942 and Lopez in 1995, the prevailing ethos is that Congress can do whatever it wanted in an era of believing in Big Government and the power of the federal government. President Johnson talked about the Great Society. One of the critical aspects of the Great Society was the Civil Rights Act and the idea that Congress would have the authority to protect civil rights. The Act was justified under the Commerce Clause. Think

of Ollies Barbeque, a really local restaurant in Alabama. Congress says there cant be any discrimination there because restaurants are a form of commercial activity that receives its products through the stream of interstate commerce! By the 1960s, Congress can do that because theres a whole change in the understanding of the Commerce Clause. We will give Congress broad latitude to do what they think is in the national interest. This changes dramatically when we get to Lopez. Next week, we have three classes, and each class well be reading a different Court of Appeals case out of the Ninth Circuit that grapple with Lopez and Morrison. Well see the same question of the scope of the Commerce Clause not from the perspective from the U.S. Supreme Court thats making the decisions and creating the relevant law, but from the position of subsidiary judges in the legal system who themselves are trying to figure out what Lopez and Morrison mean. We may see the doctrine of avoidance in this class and in Legislation. Courts like to avoid constitutional questions when they can. They will tend to interpret statutes narrowly to make them constitutional instead of declaring them unconstitutional altogether. Consider, for example, United States v. Jones in which the federal arson act was interpreted not to apply to a residence. When youre an attorney, you should ask yourself: Can I win this case on statutory grounds instead of constitutional grounds? These issues wont be as neatly divided as they are in the first-year law school curriculum. Imagine yourself in the position of a judge having to decide new kinds of cases as they come along. There are lots of federal laws that have been on the books for a while that may now be in question.

Then imagine yourself being a lawyer. Why imagine this second? To be a good lawyer both as an advocate and as an advisor to your client, you must be able to imagine what the case looks like from the bench. Whats going on in the judges head? Whats on the judges mind? What questions will the judge ask? So each day next week will seem similar. We will study three cases with three different factual patterns, but they all involve the same problem. United States v. Morrison Brzonkala was allegedly raped by the defendants. She sued the defendants in federal court under 42 U.S.C. 13981. The defendants responded by claiming that the statute was unconstitutional. The district court agreed and dismissed the complaint. Brzonkala appealed. The Fourth Circuit affirmed en banc, and Brzonkala appealed to the U.S. Supreme Court. Did Congress have constitutional authority to enact 13981 under the Commerce Clause? Congress has the power to regulate economic activities that are substantially related to interstate commerce. The Court says that Lopez supplies the proper framework to analyze whether the statute in question is within the proper reach of Congresss Commerce Clause power. First, the Court claims that the non-economic nature of the conduct in question in Lopez was important to the decision to find the statute unconstitutional. Next, the Court says that a statute is more likely to pass muster if the conduct prohibited is explicitly limited to that which substantially affects interstate commerce. The Court notes that the statute in Lopez lacked specific congressional

findings supporting the connection between the statute and interstate commerce. Finally, the Court notes the attenuated nature of the connection between gun possession and interstate commerce. Applying this rubric to the Violence Against Women Act, the Court finds that if this act can stand, Congress would pretty much be allowed to regulate anything. It doesnt apparently help that the legislative record includes extensive findings relating violence against women and interstate commerce. Breyer says the economic/non-economic distinction is too difficult to make and doesnt get applied consistently anyway. Breyer also thinks the economic/non-economic question should focus on the effects and not the causes. The dissent says that the mountain of facts gathered by Congress in support of the connection between violence against women and interstate commerce distinguishes this case from Lopez. What are the facts? A woman had been raped. She sued the perpetrators under the federal Violence Against Women Act. How does the case get to the Supreme Court? Would this case look any different to the U.S. Supreme Court if the plaintiff had decided not to name the university as a defendant? No, but why not? Its not necessary for there to be multiple defendants for the constitutional question to exist. The university is irrelevant, in a sense, to the federal litigation. It seems like the Court is trying to show some sympathy to the plaintiff even as they dismissed her complaint. Were not awful ogres, were just doing our job interpreting the Constitution. VAWA purports to create a federal tort remedy, but Morrison

argues that Congress has no authority to create such a remedy. The United States steps in, saying: Hey! Thats my statute! Dont touch my statute! There were actually two different cases in the U.S. Supreme Court that get consolidated: United States v. Morrison and Brzonkala v. Morrison. Both petitions are granted and considered together for the purposes of oral argument and disposition. Theres a lot of talk about criminal law in the opinion, but this is not a criminal case. Part of the debate is whether the Court will allow federal tort law to exist beside or on top of state tort law. The constitutional question of Morrison Does Congress have the power under the Commerce Clause to make gender-motivated violence that occurs within a single state both a federal crime and a federal tort subject to a civil damage remedy? Chemerinsky thinks Morrison is even more revolutionary and a bigger deal than Lopez. Thats what Souter thinks too. Basically, this is the deal: in the VAWA, Congress actually thought long and hard about the Commerce Clause question itself and wrote lots of findings. Congress explained in great detail what it saw as the link between gender-motivated violence and its effect on interstate commerce. For example, when women get hurt, they cant go to work and absenteeism has an effect on productivity. They document the economic dimension of gender-motivated violence. This is different than the Gun-Free School Zones Act. That statute was written in a pretty sloppy fashion! Congress was complacent with the broad powers that had been granted to them by the Supreme Court under the Commerce Clause since 1937.

Some observers thought Lopez would be a narrow decision that would simply require the procedural requirement of findings supporting a connection between commerce and whatever Congress is legislating about. Morrison shows that findings arent enough.