United States v. Lopez
Introduction
The United States of America was founded as an experiment in federalism. Federalism was the idea that there should be two government systems, a national government and a state government, and both would have certain powers and autonomy from each other which would help keep both in check. However, as time went on, the power of the federal government grew and that of the states declined. Article I, Section 8, Clause 3 of the U.S Constitution, otherwise known as the Commerce Clause, gives Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Through the lens of the Commerce Clause, United States v. Lopez reexamines the fundamental question of federal versus state power, which has been core to and debated since our nation’s founding.
Facts
Alfonso Lopez, a 12th-grade student, carried a concealed handgun to his high school. He was caught by school officials and subsequently charged with violating the Gun-Free School Zones Act of 1990 (GFSZA), which prohibited individuals from possessing a gun at any place they know to be a school zone.
Legal Background
Lopez moved to dismiss the indictment, arguing that the GFSZA was unconstitutional because it was beyond the power of Congress to legislate on the issue. Traditionally, managing public schools is the jurisdiction of individual states. The District Court denied this motion and convicted him, concluding that the GFSZA “‘is a constitutional exercise of Congress’ power to regulate activities in and affecting commerce.’” Lopez then appealed to the Fifth Circuit, which sided with Lopez by concluding that the GFSZA was beyond the power of Congress. The United States government petitioned for certiorari, which the Supreme Court granted.
Holding & Reasoning
In 1995, the Supreme Court upheld the Fifth Circuit, ruling in a 5-4 decision that the GFSZA was an overreach of congressional power under the Commerce Clause. The Court looked to the precedent set by a swath of Commerce Clause cases including Wickard v. Filburn, “three broad categories of activity that Congress may regulate under its commerce power.” First, “the use of the channels of interstate commerce,” i.e., regulating the highways, waterways, and air traffic of the country. Second, “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” Instrumentalities refers to vehicles like cars, trucks, and ships. Third, “those activities that substantially affect interstate commerce.”
The Court concluded the first two areas to be irrelevant for this case, since the GFSZA is a criminal statute that “is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce,” nor does it “protect an instrumentality of interstate commerce.” The Court concluded that the GFSZA could only be sustained under the third category if it regulates something with substantial effect on interstate commerce. The case therefore hinged on whether guns in school zones would substantially impact interstate commerce.
The United States government argued that guns in school zones impact interstate commerce in two ways. First, that guns in schools lead to violent crime, which impacts the national economy. Second, that guns in schools lead to a disrupted education, which in turn leads to a less productive citizenry and thereby impacts the national economy.
The majority opinion found this argument to be troubling, because if the government could regulate guns under this Commerce Clause reasoning, then the government would be able to regulate education directly. After all, if Congress had the power to regulate an activity because of that activity’s effect on education, and its subsequent effect on the national economy, it should be able to regulate education itself. Furthermore, education is not the only activity that has a substantial impact on the national economy. If this precedent were to be set, the majority opinion noted, then institutions like marriage, divorce, and child custody could be regulated by Congress through the Commerce Clause. This, the majority believed, would give the federal government power over criminal law and education—both areas that have been traditionally decided by the states. The majority found it “difficult to perceive any limitation on federal power” under the proposed interpretation of the Commerce Clause. In summary, if the government could extend the Commerce Clause to managing public schools based on potential impact on the economy by possible crimes, then the government could by extension regulate all activities, since any activity could possibly impact the economy.
The majority based their conclusion in part on the 1971 case of United States v. Bass. In Bass, a similar statute, passed using the Commerce Clause, made it illegal for a felon to “‘receiv[e], posses[s], or transpor[t] in commerce or affecting commerce . . . any firearm.’” The statute was struck down by the Court for lacking a “‘requisite nexus with interstate commerce.’”
The dissenting opinion, written by Justice Breyer, argued that regulation of education is within the power of the Commerce Clause. He maintained that the effects of guns in schools are substantial enough to be regulated under the Commerce Clause and that commerce and education are linked. To support his point, Breyer pointed to two cases, Katzenbach v. McClung and Perez v. United States. Both cases, Breyer believed, demonstrated the inconsistencies in the majority opinion’s approach to the Commerce Clause. In Katzenbach, the Court upheld a statute which prohibited racial discrimination at restaurants, because discrimination discouraged travel by African Americans and affected purchase of restaurant supplies from other states. In Perez, the Court upheld a statute that made loan sharking illegal. Breyer argued that the Court’s ruling in both these cases was because while individual instances of discrimination or loan sharking were seemingly insignificant, considered as a whole, the practices would have had substantial effect on interstate commerce. Breyer argued that the economic effect of guns at school are comparable to those of discrimination at local restaurants and loan sharking. Thus, Justice Breyer believed the government had a rational basis to regulate guns in schools. Furthermore, Justice Breyer believed that the majority was deciding the case based on what activity was arbitrarily decided to be “commercial.” For example, the Court would rule that purchasing a firearm was not subject to regulation while purchasing a car was, even if both actions had the exact same effect on commerce, simply because one action is “commercial.” This goes against the earlier decision in Wickard that an activity, “‘whatever its nature,’” so long as “‘it exerts a substantial economic effect on interstate commerce,’” can be regulated under the Commerce Clause. These inconsistencies were the reason for Justice Breyer’s dissent.
In his concurring opinion, Justice Thomas agreed with the majority ruling but disagreed with their interpretation of the Commerce Clause. Thomas argued that the current post-Wickard interpretation of the Commerce Clause is not founded in the Constitution and is inconsistent. According to Thomas, the Commerce Clause was originally not supposed to cover activities like manufacturing and agriculture. Many of the Framers believed that commerce, manufacturing, and agriculture were three separate things. As time passed, the United States economy became far more national, and commerce became far more influential. However, the current interpretation of the Commerce Clause makes much of the Constitution superfluous. Congress has the power to “declare war, raise and support Armies, provide and maintain a Navy, and organize, arm, discipline, and call forth a militia.” All of these are superfluous, as the Commerce Clause would allow Congress to declare war and maintain a navy due to their substantial effect on interstate commerce.
Analysis
The Supreme Court correctly decided the case based on the precedent set by Bass. I believe Breyer’s dissent to be incorrect because the situations in Katzenbach and Perez are not analogous to Lopez, for two reasons. Both racial discrimination in restaurants and loan sharking are directly related to commerce, unlike guns in school zones. Both former activities are commercial in nature, while the latter, education, is historically regulated by state governments.
If Congress could regulate guns in schools because of a vague economic impact, then they would be able to regulate nearly anything. It goes without saying that guns in schools are a bad thing. However, that doesn’t make it any more related to interstate commerce. In addition, part of the reason for separation of power between the federal and local government is that it allows the local government to handle local issues like education. This allows for the governments to “hold each other in check by competing for the affections of the people.”
It is interesting that both the concurring and dissenting opinions agree that the interpretation of the Commerce Clause is inconsistent, despite disagreeing on what that entails. Throughout history, the Court has applied the Commerce Clause in dramatically different ways. One of the first Commerce Clause cases, the 1824 case Gibbons v. Ogden, only permitted Congress to regulate that which was “commerce with foreign nations, or among the several States.” Initially manufacturing was considered something different from commerce. Much later cases, like NLRB v. Jones Laughlin Steel Corp. and Wickard v. Filburn, expanded the scope of commerce to include manufacturing. Initially, Congress could only regulate activities with a direct impact on interstate commerce. Wickard drastically changed the scope of Congress’s Commerce Clause authority, allowing Congress to regulate both direct and indirect activities. The reason for the inconsistency of application is in part because of its history.
The Constitution was founded on principles of “separation of powers, checks and balances, judicial review, and federalism”; federalism was a direct creation of the Founders. However, times change and the law adapts. The Framers of the Constitution did not foresee the country having such an interconnected market, which was fueled by innovations in communication and transportation like the transcontinental railroad of 1869. The cause for these changes in Commerce Clause interpretation was the rapid industrialization of the nineteenth century, which greatly expanded the scope and scale of commerce. Fundamentally, the story of the Commerce Clause is one of changing times and our laws adapting to that. The Framers’ ideal of a nation in balance between the state and federal governments has been swept away by the necessities of industrialization.
It seems self-evident that the federal government should have the power to regulate affairs that would substantially affect commerce. It also seems obvious that the federal government should not have the power to regulate everything under the sun using the Commerce Clause as an excuse. The dilemma arises from the fact that we now live in a world so interconnected that almost everything can have an impact on commerce. While United States v. Lopez has significantly diminished the power of federal government to regulate under the Commerce Clause, it has not completely abolished this dilemma. The Court holds that Congress can regulate activities that substantially affect commerce, but also concludes that the GFSZA does not fit that criterion. I do not know where the exact line between the federal and state government should be. But I agree with the Supreme Court that legislation regulating the possession of firearms in schools passed through the Commerce Clause was an overreach of Congressional authority.