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Discussion Questions for U.S. v. Lopez

In United States v. Lopez, the Supreme Court reversed the trend toward giving morepower to the federal government in relation to the states. Please answer the questionsbelow in complete sentences on a separate sheet of paper.

1. What were the facts of the case?

2. What was the issue the Court decided?

3. What was the Court's decision?

4. What was the reasoning behind the Court's decision?

5. What are the 3 categories of activities that can be regulated under the CommerceClause?

6. What were the arguments made on behalf of the US government in Lopez?

7. What reasoning was used by the Court in rejecting the government's arguments?'--

8. What is the standard used to determine whether the Commerce Clause applies to aparticular activity?

9. What is the standard used by the dissenters to determine whether the CommerceClause applies to a particular activity?

10. Do you agree with the Court's decision in U.S. v. Lopez? Why or why not?

11. What impact does the Lopez case have on federalism?

Uruced Scares v, Lu(:'e: i I

sharply divided Court held that Congress could not regulate governmental activities thatwere an integral part of state sovereignty. The decision overturned provisions of the FairLabor Standards Act that governed state employees. Ihe Court's majority opinion arguedthat states had traditionally controlled their employees, a responsibility within state sov-ereignty because the states through their own democratic processesshould have the au-tonomy to decide for themselves how they would manage their public sector.

It was not long, however, before the Court reversed the National League of Citiesdecision, holding in Garcia v. San Antonio Metropolitan TransitAuthority, 469 US 528(1985), that Congress could apply minimum-wage requirements to the states and theirlocalities. Again the vote was closely divided, 5-4, and this time the majority opinionstruck a distinct note of judicial self-restraint, concluding: "We doubt that courts ulti-mately can identify principled constitutional limitations on the scope of Congress' com-merce clause powers over the states merely by relying on a priori definitions of statesovereignty: The Court found nothing in the Fair Labor Standards Act that violated statesovereignty, implying that it was up to Congress and not the courts to determine the ex-tent of its power under the commerce clause. Sharp dissents were registered in the case,indicating that if in the future the issue was raised a more conservative Supreme Courtmajority might uphold some commerce clause restraints against national regulation ofstate governments. The Garcia decision was directly in line with Court precedents since1937 that have supported virtually unlimited congressional authority under the com-merce clause.

The Garcia decision appeared yet once again to have settled the constitutionalquestion of the scope of congressional authority under the commerce clause. But. as thefollowing case illustrates, the issue is not dormant, and the conservative Supreme Courtof the 1990s refuses to grant Congress the benefit of the doubt in applying a "rational-basis" test in reviewing legislation under the commerce clause.

10UNITED STATES V. LOPEZ

514 U.S. 549 (1995)

.:..:..:.Chief Justice REHNQU[ST delivered the opinion of the Court.

In the Gun-Free School Zones Act of 1990. Congress made it a federal offense"for any individual knowingly to possess a firearm at a place that the individualknows. or has reasonable cause co believe, is a school cone." The Act neither regu-lates a commercial activity nor contains a requirement chat che possession be con-nected in any way co interstate commerce. We hold that the Act exceeds theauthority of Congress "[do regulate Commerce ... among the several Scates .... "

On March 10, 1992. respondent, who was then a l Zth-grade student, arrived atEdison High School in San Antonio, Texas, carrying a concealed .38 caliber hand-

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"(, Federalism

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gun and five bullets. Acting upon an anonymous tip. school authorities confrontedrespondent. who admitted that he was carrying the weapon. He was arrested andcharged under Texas law with firearm possession on school premises. The next Jay.the state charges were dismissed after federal agents charged respondent b~'corn-plaint with violating the Gun-Free School Zones Act of 1990. A federal grand juryindicted respondent on one count of knowing possession of a firearm at a schoolcone, in violation of § 922(q). Respondent moved to dismiss his federal indictmenton the ground that § 9Z2(q) "is unconstitutional as it is beyond the power of Con-gress co legislate control over our public schools." The District Court denied themotion. concluding that § 922(q) "is a constitutional exercise of Congress' well.defined power to regulate activities in and affecting commerce. and the 'business' ofelementary, middle and high schools ... affects interstate commerce." Respondentwaived his right co a jury trial. The District Court conducted a bench trial. foundhim guilty of violating § 922(q). and sentenced him to six months' imprisonmentand two years' supervised release. On appeal. respondent challenged his convictionbased on his claim that § 922(q) exceeded Congress' power co legislate under theCommerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversedrespondent's conviction. Because of the importance of the issue. we granted certio-rari, and we now affirm.

We start: with first principles. The Constitution creates a Federal Governmentof enumerated powers. As Madison wrote. "[rlhe powers delegated by the proposedConstitution to the federal government are few and defined. Those which are co reomain in the State governments are numerous and indefinite." Federalisc 45. (The)Constitution delegates to Congress the power "[t]o regulate Commerce with foreignNations. and among the several States, and with the Indian Tribes." The Court.through Chief Justice Marshall. first defined the nature of Congress' commercepower in Gibbons v. Ogden. (The] Gibbons Court. however, acknowledged char limoitations on the commerce power are inherent in the very language of the CommerceClause. "It is not intended to say that these words comprehend that commerce,which is completely internal. which is carried on between man and man in a State.or between different parts of the same State. and which does nee extend co or affectother States. Such a power would be inconvenient, and is certainly unnecessary."

(For) nearly a century thereafter, the Court's Commerce Clause decisions dealebut rarely with the extent of Congress' power. and almost entirely with the Com-merce Clause as a limit on state legislation that discriminated against interstatecommerce. Under this line of precedent. the Court held that certain categories ofactivity such as "production •.•."rnanufactunng," and "mining" were within theprovince of state governments. and thus were beyond the power of Congress. [In]1887. Congress enacted the Interstate Commerce Act, and in 1890, Congress en-acted the Sherman Antitrust Act. These laws ushered in a new era of federal regu-lation under the commerce power. When cases involving these laws first reachedthis Court. we imported from our negative Commerce Clause cases the approachthat Congress could not regulate activities such as "production," "manufacturing."and "mining." Simultaneously, however. the Court held that, where the interstateand intrastate aspects of commerce were so mingled together that full regulation ofinterstate commerce required incidental regulation of intrastate commerce. theCommerce Clause authorized such regulation.

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UniceJ Scaresv, Lv[:'.:: i)

In Scbeae: Pou.ltry, the Court struck down regulations that fixed the hours andwages of individuals employed by an intrastate business because the accivrtv f,o::in.~regulated related to interstate commerce only indirectlv, ln doing so, the Courtcharacteri:ed the distinction between direct and indirect effects of intrastate trans-actions upon interstate commerce as "a fundamental one, essential co the mainte-nance of our constitutional system." Activities char affected interstate commercedirectly were: within Congress' power; activities chat affected interstate commerceindirectly were beyond Congress' reach. The justification for this formal distinc-tion was rooted in the fear that otherwise "there would be virtually no limit co thefederal power and for all practical purposes we should have a completely central-ized government."

,Two y~rs later,.tn the.watershed case o~,.,.~~f:t:.s.~L;.CSt~:I·ID••~;fdi~'W~~m~Cij~9if(Wefti;:rJ'(r~t:'· indurn"dftectJl!ffec~'Jn .••irig»~§f~gJones & Lau.ghlin ushered in an era of Commerce Clause ju-risprudence [hat greatly expanded the previously defined authority of Congress un-der chat Clause. In part, this was a recognition of the great changes that hadoccurred in the way business was carried on in this country. Enterprises that' hadonce been local or at most regional in nature had become national in scope. But thedoctrinal change also reflected a view that earlier Commerce Clause cases artifi-cially had constrained the authority of Congress to regulate interstate commerce.

But even these modem-era precedents which have expanded congressionalpower under the Commerce Clause confirm that this power is subject to outer lim-its. In Jones & Lau.ghlin, the Court warned that the scope of the interstate com-merce power "must be considered in the light of our dual system of government andmay not be extended so as co embrace effects upon interstate commerce so indirectand remote that to embrace them, in view of our complex society, would effectuallyobliterate the distinction between what is national and what is local and create acompletely centralized government." Since that time, the Court has heeded thatwarning and undertaken co decide whether a rational basis existed for concludingthat a regulated activity sufficiently affected interstate commerce .

. .. [WJe have identified three broad categories of activity that Congress mayregulate under its commerce power. First, Congress may regulate the LIseof thechannels of interstate commerce. Second, Congress is empowered co regulate andprotect the instrumentalities of interstate commerce, or persons or things in inter-state commerce, even though the threat may come only from intrastate activities.Finally, Congress' commerce authority inclu'des the power co regulate those activi-ties having a substantial relation to interstate (,;1mmerce, Jones & Laughlin Steel.those activities that substantially affect interstate commerce.

Within this final category, admittedly, our case law has nor been clear whetheran activity must "affect" or "substantially affect" interstate commerce in order to bewithin Congress' power co regulate it. (We] conclude. consistent with the greatweight of our case law, that the proper test requires an analysis of whether the regu-lated activity "substantially affects" interstate commerce ....

The Government's essential contention. in fine, is that we may determine herethat § 922(q) is valid because possession of a firearm in a local school zone does in-deed substantially affect interstate commerce. The Government argues that posses-sion of a firearm in a school zone may result in violent crime and that violent crime

74 Federalism

can be expected to affect the functioning of the national economy in two ways.First, the costs of violent crime are substantial. and, through the mechanism uf in-surance, those costs are spread throughout the population. Second, violent crimereduces the willingness of individuals co travel to areas within the country that areperceived co be unsafe. The Government also argues that the presence of guns inschools poses a substantial threat co the educational process by chrearening thelearning environment. A handicapped educational process, in cum, will result in aless productive citi:enry. That, in turn, would have an adverse effect on the Na-

. cion's economic well-being. As a result, che Government argues that Congress couldrationally have concluded char § 922(q) substantially affects interstate commerce.

We pause to consider the implications of the Government's arguments. TheGovernment admits, under its "costs of crime" reasoning. that Congress could regu-late not only all violent crime, but all activities that might lead co violent crime, re-gardless of how tenuously they relate to interstate commerce. Similarly, under theGovernment's "national productivity" reasoning, Congress could regulate any ac-tivitv that it found was related co the economic productivity of individual cirizens:family law (including marriage, divorce, and child custody), for example. Under thetheories that the Government presents in support of § 922(q), it is difficult to per-ceive any limitation on federal power, even in areas such as criminal law enforce-ment or education where States historically have been sovereign. Thus, if we wereco accept the Government's arguments, we are hard-pressed to posit any activity byan individual that Congress is without power to regulate ....

To uphold che Government's contentions here, we would have ro pile infer-ence upon inference in a manner that would bid fair to convert congressional au-thority under the Commerce Clause to a general police power of the sort retainedby the States. Admittedly, some of our prior cases have taken long steps down thatroad, giving great deference to congressional action. The broad language in theseopinions has suggested the possibility of additional expansion, but we decline hereto proceed any further. To do so would require us to conclude that the Ccnstitu-cion's enumeration of powers does not presuppose something. not enumerated, andthat there never will be a distinction between what is truly national and what istruly local. This we are unwilling to do.

[Affirmed.]Justice BREYER, with whom Justice STEVENS, Justice SOUTER. and Justice GI!':5-

BURGjoin, dissenting.The issue in this case is whether the Commerce Clause authorices Congress to

enact a statute that makes it a crime co possess a gun in. or near, a school. In myview, the statute falls well within thescope of the commerce power as this Courthas understood that power over the last half-century.

L In reaching this conclusion, I apply three basic principles of CommerceClause interpretation. First, the power to "regulate Commerce ... among the sev-eral States," encompasses the power to regulate local activities insofar as they signif-icantly affect interstate commerce. As the majority points Out, the Court, indescribing how much of an effect theClause requires, sometimes has used the word"substantial" and sometimes has not. And, as the majority also recognizes in quor-ing Justice Cardozo, the question of degree (how much effect) requires an estimate

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LJrured States v. Lope; I }

of the "size" of the ~ffect that no verbal formulation can capture with pcecisicn. [use the word "significant" because the word "substantial" implies a somewhat nar-Cl1w~r rower than recent precedent suggests. But, to speak of "substannul ettect"rather than "significanr effect" would make no difference in this case.

Second, in determining whether a local acti v ity will likely have a significantd"tect upon interstate commerce, a court must consider, not the effect of an individ-ual act (a single instance of gun possession), but rather the cumulative effect ot allsimilar instances (l.e., the effect of all guns possessed in or near schools) .•~

Third, the Constitution requires us co judge the connection between a regulatedactivity and interstate commerce, not directly, bur at one remove. Courts muse giveCongress a degree of leeway in determining the existence of a significant factualconnection between the regulated activity and interstate cornmerce=-boch becausethe Constitution delegates the commerce power directly co Congress and becausethe determination requires an empirical judgment of a kind that a legislature is morelikely than a court to make with accuracy. The traditional words "rational basis" cap-ture this leeway. Thus, the specific question before us, as the Court recognices, is notwhether the "regulated activity sufficienrlv affected interstare commerce," but.rather, whether Congress could have had "a rational basis" for so concluding ....

[1. Applying these principles to the case at hand, we must ask whether Con-gress could have had a rational basis for finding a significant (or substantial) con-nection between gun-related school violence and interstate commerce. Or, to putthe question in the language of the explicit finding that Congress made when it

~~:~~~n~~~~*t~~ ..,}?9!~,::~~~d C~,ngress rationally have fo~n.d th,a.~.~~~;,lbr'llii. a, IR4Smoef tone':!.l!i'tIifQu bi-,tts'c ;~l~~e;~ul!lltl of ed.U.9~W?9J~~Jtg1\Jtt~~Q,d.y,( ~H:"~~r""=78"··<'l""I'''~' >;& ''''''''''1 ,~ iiJYuu ,I .,' A I .'Qt:slis5llanttally(arreets'" tn[erst;s,e'·6l1-· ote[gn-.c0tnmet'C~. song as one viewsthe commerce connection, not as a "technical legal conce tion," but.as "a £ractig:ll

nlitf!r.Y_ h hi b e, ··i"!lIt~!~r;l~~'Jm~ei:n;-:"t,,,:;-,.one, "w:.w;HI!iI c e answer to t is quesnon must eyes.·' 11 'e .Oil"5i'fepatCS1am1!,-~JaJ_~Yia!'o~i!l"""<fy,efrtrtte~;;::;'maket>~cLeaF~that~.~n~J

~~;';-'~~~;:".~ ',~.iJ.J."';''''':''''' ~ ~.;.1.(~~.,;~-;~t';-=#-':":'-··~·.7f:.;':tr.~:fU'''<-j''''",_...,,,,1 ~'~"'I~O!iVi~~t\§f:!.",th~~.!~~l~~ itJiph~'~dY4I,'1rte~

For one thing, reports, hearings, and other readily available literature makeclear that the problem of guns in and around schools is widespread and extremelyserious ....

Having found that~.li'&t""~s[~rtil&an~r~tjJhde'rtnii\etEhe qui:lLtY9f.~!fu·'f!~!lt~~~~~~W1;t:ongress c?uld also have found, given the effect

ot education upon interstate and foreign commerce, that gun-related violence in

and aroun~ s~~~?~~~~.~,~c~. ~;:}~Ci~!:_,!S,w;.ll.•, a.~_'1,h,un:~n, proble~. :i!j~~~~~tt~.·f~.:1t\or~.·;r!;\~Ef:'a"'~.,tt~t~o£..:,eC0nbmlCSi.l\as.~long;bee[\. inexttlcabLy;u\cerJ

....., ... '''';~~; 'J.';.'f~t~;.·· ~I.;".:<'\l'Y"I'!'t.~_twlned-wlI:n:,die--NattGn-s e<:Otlomy. '="~. '''"'~'''"'~·1..~~"~?\··i.:n<~ .;", of' '. M,.'I'i"'·In recent years the r~ltwe -~seeoiid_ edueation:"iand;!bl.@mel hasstrengthened, becoming both more direct and more important. Scholars on the sub-ject report that technological changes and innovations in management techniqueshave altered the nature of the workplace so that more jobs now demand greater ed-ucational skills ....

~RuTof)al~lotl\p;~~~lQJ't~~9.-~ ~de J?r~~arJ:.~l'?,:e,.:~l1eafi~~~;~,ig,ta~l't6lh[eaUl1'n\ote·trnQO.r.·tanc,. ·.',,'1

;io.~.-...:'A'~~""" ~""..:.~~- ""';;gw - ,~.'. -l~,\;j:..\1.-\0 :WL.,t <J

76 Federalism

(Finally,1there is evidence chat. codav mort: than ever. many ttrms base their loca.tion decisions upon the presence, or absence, ,1f ,\ work terce WIth a (-,t'iiceducsnon. , , ,

The economic links [ have just sketched seem fairly obvious, Why then IS Itnor equally obvious, in light of those links. that a widespread, serious. and substan.tial physical threat to teaching and learning also subscanriallv threatens the corn-merce co which that teaching and learning is inextncablv tied: That ISco jay. zunsin the hands of six percent of inner-city high school scudents and gun-related vio-lence throughout a city') schools muse-threaten the trade and commerce that thuseschools support, , , ,

IV. In sum, co find chis legislation within the scope of the Commerce Clause, , , no more than simply recognize that Congress had a "rational basis" tor finding asignificant connection between guns in or near schools and (through their effect oneducation) the interstace and foreign commerce they threaten.

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A Perspective on Federalism: Present and Future~~foIIOwing selection. the role of the states in the political system is discuss~fromthe p~f{~ctive that th~ ~ature of intergov~rnmental relatio~s reflects,unde1.y;1!gpoliti-cal condttiens and realities. As James Madison pointed out In Federalist .Jc.1"theanginalconstitutio'ta:J~eme of federalism represented a delicate balanCe)~v'Jeen nationaland state ("fede~inte~ests. But. u,nder t~e original ~onstitutional -esign. the nationa:government was no,~o Intervene directly In the affairs of state :overnments; and theproblems of SUbsidiarY4'~c{1governments within states were no considered to be sepa-rate from the ?rOblems ~f't~states themselves, and therefo . they were a proper mat-ter for resolution by the Indlvl'GIualstate: governments.

Morton Grodzins points ou~1W s,trict separatio~.:~tional and state functions hasnever really existed, and that even'~e the con~:~~nof 1787 a national statutepassed by the: Continental Congress ga"'~rants-in-aid of land to the states for publicschools, Tocquevilie also comments on the ~h'Uirsof formally separating. in theory. theresponsibilities of national, state. and locat-go~ents. The history of the federal systemhas seen the ebb and flow of national do~ance~r the states; centralization and de-centralization have been the CYClical'th~s of fed~raTlS-~andintergovernmental relatio,ns,T~ethrust of the N~w Deal was tow~eentra~zatlOn thr(}~h the,use of federal qrant-m-aid programs. a philosophy that ~Inated the governmen~tll the emergence of the"New Federalism" of the Nixon administration. which supporteadecentralization of powerfrom the national to the sta~ernments. The move toward dece sralization was bro~dlYsupported by t~e Repub~an party. Reven~e s~arin,g wa~ inaugurate ~ President Nixonto transfer national f~d5 to the states. Without stipulation of how the<;~ey was to bespent. The revenuZtTaring procedure was in direct contrast to the grant-if1~ programs.which allowed.7state receipt of federal money upon the condition of state a~~erence to"7dS. President Reaqan's New Federalism proposed the merging oNuant-in-

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