• Harvard College Law Review Facebook

© 2019 by Harvard College Law Review.

All rights reserved.

The Supreme Court and U.S. v. Lopez:

Preserving Federalism Through Responsible Interpretation

of the Interstate Commerce Clause

by Robert Zipper | Fall 2019

In 1995, the U.S. Supreme Court struck down The Gun Free School Zones Act of 1990 as unconstitutional in its landmark decision in United States v. Lopez. In the majority opinion, Chief Justice William H. Rehnquist explained that the law exceeded Congress’s authority to legislate under the Interstate Commerce Clause of the U.S. Constitution. The Chief Justice emphasized that the law “neither regulates a commercial activity nor contains a requirement...in any way connected to interstate commerce.” This decision marked one of the few instances in recent history in which the Court engaged in a responsible interpretation of the Commerce Clause. This article argues that the U.S. Supreme Court should continue to responsibly interpret the Commerce Clause to hold Congress accountable to its limited, defined powers under the Constitution. Doing so is imperative to protecting our nation’s foundational commitment to federalism and state sovereignty.

United States v. Lopez marked a profound moment in the history of American jurisprudence. For over fifty years prior to this decision, the U.S. Supreme Court had adopted a particularly expansive interpretation of the Commerce Clause, leading some astute critics to accuse the Court of being “asleep at the constitutional switch.” However, in 1995, the Supreme Court finally “woke up” when it struck down The Gun Free School Zones Act of 1990, a federal statute which made it an 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.” When the law was challenged on constitutional grounds, the government made a far-fetched attempt to substantiate the law under the Constitution’s Commerce Clause. It asserted that the possession of a gun near a school has a substantial effect on interstate commerce because the gun may produce violence — which may affect the economy by raising insurance costs nationwide, or by reducing the willingness of people to travel, or by impairing the learning environment of schools — and at some point in the future result in a less commercially productive population and a weaker national economy. Despite Congress’s “butterfly-effect” legal rationale, the Court held that the statute was unconstitutional because it exceeded Congress’s authority to legislate under the commerce clause. In the majority opinion, Chief Justice William Rehnquist explained that the statute “has nothing to do with ‘commerce’ or any sort of economic enterprise,” and that “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.” In U.S. v. Lopez, the U.S. Supreme Court made a long overdue return to responsible interpretation of the Commerce Clause. In the future, it is important for the Court to continue down this path of responsible judicial engagement in order to hold Congress accountable to its limited constitutional powers and to safeguard our nation’s foundational system of federalism and state sovereignty. 

For most of American history, the U.S. Supreme Court recognized the limited powers granted to Congress under the Commerce Clause of the U.S. Constitution. Chief Justice John Marshall first defined the nature of Congress’s commerce power in Gibbons v. Ogden. In his opinion, Marshall explained that interstate commerce is “commercial intercourse between nations, and parts of nations, and all its branches.” As we can see, there are two components that must be satisfied if Congress intends to regulate an activity under the Interstate Commerce Clause: 1) the activity must actually involve commerce and 2) the activity must involve “commercial intercourse” between or among “the several states.” However, during the New Deal era, the U.S. Supreme Court began to adopt a much more expansive interpretation of this clause, which allowed the scope of federal power to expand far beyond its constitutional bounds. In effect, the U.S. Supreme Court had adopted such a broad interpretation of the clause that virtually any activity could be said to fall under its purview and be subject to federal regulation. 

This noteworthy shift in constitutional doctrine occurred in 1937, when the Supreme Court made “the switch in time that saved nine” in West Coast Hotel Co. v. Parrish. This decision marked an abrupt end to the Lochner era, in which the Supreme Court struck down many pieces of New Deal legislation on the grounds that they were unconstitutional encroachments of federal power. According to many historical accounts, “the switch in time” refers to Justice Owen Roberts’s deliberate shift from responsible judicial engagement to lax judicial deference in the Parrish ruling in order to discourage President Franklin Roosevelt from pursuing his “court-packing plan,” which could have increased the number of Supreme Court justices from nine to fifteen. Prior to this shift, however, the Court still adhered to its long-standing tradition of responsible judicial engagement. For example, in 1936, the Supreme Court struck down the Agricultural Adjustment Act, which restricted the production of crops to stabilize food prices. The Court held that the act was unconstitutional because it violated the Tenth Amendment, which holds that undelegated powers are reserved to the states. However, in 1942 — after Roberts’s momentous “switch in time” — the Court upheld a new Agricultural Adjustment Act which authorized production quotas for wheat consumed on farms as food, or as seed or feed for livestock. This time, the Court adopted a much more expansive interpretation of the Commerce Clause to account for its sudden departure from long-standing precedent. In its unanimous decision, the Court relied on a description of the tenuous connection between fundamentally minor local economic activities and interstate commerce. The Court argued that home-grown wheat, even if it never goes to market, “has a substantial effect on interstate commerce” because “it supplies the need of the man who grew it which would otherwise be reflected by purchases in the open market.” This “butterfly-effect” line of reasoning stretches the meanings of both the words “interstate” and “commerce” and begs the question of what could not conceivably fall under the purview of the Commerce Clause.

Fifty-eight years later, however, Chief Justice Rehnquist rekindled the hitherto dormant foundational notion that the “Constitution creates a federal government of enumerated powers,” and our system of federalism reserves many powers exclusively to state governments. As James Madison wrote in Federalist No. 45, while federal powers are “few and defined,” those left to state governments are “numerous and indefinite.” One of the powers reserved to state governments under the Tenth Amendment is police power. In 1995, forty states, including Texas, had already exercised this power by enacting laws which criminalized the possession of firearms in or near schools. In fact, Respondent Alfonso Lopez had been arrested under a Texas law which banned guns in schools; however, the state charges were dropped after federal prosecutors intervened and charged Lopez with violating The Gun Free School Zones Act. Thus, at the crux of this case was not whether individuals had the right to carry guns near schools, but specifically whether the federal government had the authority to exercise an essentially local police power. Employing lucid logic, Rehnquist argued that since public schools are not engaged in commerce, and that the mere possession of a gun is not an act of commerce, possessing a gun near a public school cannot have a “substantial effect” on commerce. By making this consequential leap, Rehnquist helped return the Court back in the direction of responsible interpretation of the Commerce Clause.

In his concurring opinion, Justice Clarence Thomas illustrated the adverse ramifications of an overly broad interpretation of the Commerce Clause. He asserted that the “substantial effects test” established by the Court in the New Deal era — which he charged lacks “any grounding in the original understanding of the Constitution” — “appears to grant Congress a police power over the nation.” As Justice Thomas illustrated, there is a serious danger in adopting an overly expansive interpretation of the Commerce Clause: it effectively gives Congress the authority to regulate any activity — commercial, interstate, or otherwise. This returns us to an important question: what would not conceivably fall under the purview of the Commerce Clause? Justice Thomas mentioned that “when asked at oral argument if there were any limits to the Commerce Clause, the government was at a loss for words. Likewise, the principal dissent insists that there are limits, but it cannot muster even one example.” 

While Justice Breyer, the author of this dissent, cited the government’s justification that the possession of a gun near a school could unleash a series of ripple — or “butterfly” — effects that may eventually affect interstate commerce, this kind of open-ended interpretation would essentially grant Congress unlimited regulatory power. Rehnquist highlighted, for example, that Breyer’s expansive reasoning could extend Congress’s regulatory power to activities as unrelated to interstate commerce as child rearing. After all, child rearing “provides a valuable service” to children, giving them “the skills they need to survive in the workplace,” which may later affect their economic productivity, which may eventually affect the national economy, which may finally bring this activity into the realm of interstate commerce. As the majority highlighted, however, Justice Breyer’s overly expansive “butterfly” or “ripple” effect rationale has no practical limits and gives Congress essentially boundless power over fundamentally local activities. 

The United States was founded upon the principles of federalism and state sovereignty, which grants Congress “few and defined” powers and reserves the remaining “numerous and indefinite” powers to state governments. In order to protect these foundational commitments, the U.S. Supreme Court must recognize and clearly demarcate what separates federal power from state and local power. In future cases involving the Commerce Clause, the Court must truly ask itself whether the activity in question is related to commerce and involves more than one state. In U.S. v. Lopez, the Supreme Court took a decisive step in the right direction, and the Rehnquist Court continued further down this promising path in its 2000 decision in U.S. v. Morrison. Nonetheless, if the Court intends to continue to hold Congress accountable to the Constitution, it must continue traveling down the road of responsible interpretation.

1

2

4

REFERENCES

[1] United States v. Lopez (93-1260), 514 U.S. 549 (1995).

[2] “ Expansion Checked,” The Wall Street Journal, April 27, 1995, quoted in Calabresi, Steven G., “A Government of Limited and Enumerated Powers”: In Defense of United States v. Lopez.

[3] 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V), quoted in United States v. Lopez.

[4] United States v. Lopez.

[5] In chaos theory, the butterfly effect is the phenomenon in which miniscule changes at the local level of a complex system can produce large-scale, system-wide effects at a later point. The butterfly effect was expounded by Edward N. Lorenz, who posited that the formation of tornadoes are influenced by perturbations as minor as the flapping of a butterfly’s wings in the relatively distant past. See Edward N. Lorenz, "The Predictability of Hydrodynamic Flow," Transactions of the New York Academy of Sciences (1963), 25 (4): 409–432.

[6] United States v. Lopez.

[7] Gibbons v. Ogden, 9 Wheat. 1, 189-90 (1824).

[8] U.S. Constitution, Article I, Section 8, clause 3, quoted in U.S. v. Lopez.

[9] Matthew Ding, “The Switch in Time that Saved Nine: The Supreme Court’s Conflict and Compromise Concerning New Deal Legislation,” 2018.

[10] United States v. Butler, 297 U.S. 1 (1936).

[11] Wickard v. Filburn, 317 U.S. 111 (1942).

[12] Ibid.

[13] U.S. v. Lopez.

[14] The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961), quoted in U.S. v. Lopez.

[15] U.S. v. Lopez.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] U.S. v. Morrison, 529 U.S. 598 (2000).