|
31 ELR 10413 | Environmental Law Reporter | copyright © 2001 | All rights reserved
| Commerce by Another Name: Lopez, Morrison, SWANCC, and Gibbs | | Christy H. Dral and Jerry J. Phillips |
| Christy H. Dral is a law student, Jerry J. Phillips a professor of law, both at the University of Tennessee-Knoxville. Another version of this Article will appear in the Tennessee Law Review, see Christy H. Dral & Jerry J. Phillips, Commerce by Another Name: The Impact of United States v. Lopez and United States v. Morrison, 68 TENN. L. REV. (forthcoming 2001). |
| [31 ELR 10413]
The Constitution of the United States gives Congress the authority to "regulate Commerce … among the several States."1 From the beginning of judicial review, the U.S. Supreme Court has struggled over defining how far that power extends.2 Until recently, it seemed established that the Commerce Clause provided an extremely broad and expansive grant of power to Congress.3 However, with the 1995 decision of United States v. Lopez4 and the 2000 decision of United States v. Morrison,5 the extent of Congress' power to regulate pursuant to the Commerce Clause has been called into question. In these two cases, the Court struck down legislation as being outside the limits of Congress' authority under the Commerce Clause.6 While the Court may have had the laudable goal of restraining Congress from enacting legislation outside of its authority, the standards announced in Lopez and Morrison are too imprecise to provide any sort of basis for a credible and predictable limitation on congressional power. Moreover, the clear majority of federal legislation is enacted pursuant to the Commerce Clause, so the potential impact of Lopez and Morrison is far-reaching and disturbing. In this Article, we will attempt to explain the recent cases of Lopez and Morrison and show how the standards announced in these two decisions will prove to be unworkable. |
| Recent Commerce Clause Jurisprudence |
| In 1937, in National Labor Relations Board v. Jones & Laughlin Steel Corp.,7 the Court upheld the National Labor Relations Act as constitutional legislation enacted pursuant to the Commerce Clause. Jones & Laughlin marked a new era of Commerce Clause interpretation. With that case the Court began "the abandonment, for practical purposes, of the formalistic distinction between direct and indirect effects."8 After 1937, the Court began upholding congressional legislation based on rational review, without making the difficult factual determination of whether the activity in question directly or indirectly affected interstate commerce.9 |
| This shift to rational basis review has meant that since 1937 Congress has enjoyed broad powers under the Commerce Clause. Perhaps the best example of the expansive scope of post-Jones & Laughlin Commerce Clause jurisprudence is the oft-cited case of Wickard v. Filburn.10 In Wickard, the Court upheld federal legislation regulating the acreage allotment for wheat.11 The unanimous Court upheld the legislation as a valid exercise of the Commerce Clause power, even as applied to one farmer's harvest of intrastate wheat for his own personal consumption.12 The Court reasoned that the aggregate effects of individual farmers' consumption of homegrown wheat would have enough of a burden on interstate commerce to make the activity fall within the scope of Congress' power to regulate interstate commerce.13 |
| The broad and sweeping power of Congress to legislate under the Commerce Clause is seen in cases throughout the period after Jones & Laughlin. In Heart of Atlanta Motel v. United States14 and Katzenbach v. McClung,15 the Civil Rights Act of 1964 was upheld as a constitutional exercise of the Commerce Clause power.16 In Heart of Atlanta Motel, the Court noted that Congress may use the Commerce Clause to legislate against moral wrongs, as long as the activities being regulated bear a real and substantial relation to interstate commerce.17 In Katzenbach, the Court allowed the Commerce Clause power to extend to the regulating of a restaurant serving primarily local customers, based on the interstate travel of the food and supplies that were used in the restaurant.18 |
| These cases illustrate the broad interpretation that had been given to the Commerce Clause since Jones & Laughlin. Indeed, there were many commentators that believed that there were not any areas that Congress could not regulate through the use of the Commerce Clause. However, [31 ELR 10414] in 1995 the Court decided a case that cast doubt on the seemingly limitless scope of the Commerce Clause. |
| United States v. Lopez |
| In 1995 the Court handed down Lopez,19 a 5-4 decision holding that Congress exceeded its power under the Commerce Clause by enacting the Gun-Free School Zones Act of 1990 (GFSZA).20 Chief Justice Rehnquist wrote the majority opinion, in which Justices O'Connor, Scalia, Kennedy, and Thomas joined.21 In Lopez, the Court departed from the notion, which had been taken for granted for decades, that Congress' power under the Commerce Clause, in practicality, was plenary. |
| Chief Justice Rehnquist started with the principle that "the Constitution creates a Federal Government of enumerated powers."22 As such, Congress may only enact legislation pursuant to some authority granted to it under the Constitution.23 The Constitution, as interpreted throughout our nation's history, delegates power under the Commerce Clause to enact legislation relating to interstate commerce.24 Rehnquist noted that in interpreting the Commerce Clause power, the Court has "identified three broad categories of activity that Congress may regulate under its commerce power."25 First, Congress has the power to regulate the use of the channels of interstate commerce.26 Second, Congress may regulate the instrumentalities of, or persons or things in, interstate commerce.27 Third, Congress may regulate those activities bearing a substantial relation to interstate commerce.28 It was under this third category, substantial relation (or substantial effects), in which the GFSZA was analyzed.29 |
| The majority opinion elucidated four major shortcomings that contributed to the ultimate decision that the GFSZA was an unconstitutional extension of Congress' Commerce Clause power.30 First, the Court noted that the GFSZA was a criminal statute which regulated intrastate activity which "by its terms has nothing to do with 'commerce' or any sort of economic enterprise."31 The majority stated that the effects of individual activities may only be aggregated where the activity is economic in nature.32 Thus, as the activity of possessing a gun in a school zone was not economic in nature, the aggregate effects and burdens on interstate commerce arising out of possessing guns in school zones could not be considered. Second, the Court noted that the GFSZA required no express jurisdictional element, or nexus, "which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce."33 Third, although Congress is not required to "make formal findings as to the substantial burdens that an activity has on interstate commerce,"34 the Court could consider any such findings in their evaluation of constitutionality under the Commerce Clause.35 The GFSZA contained no express formal findings of the effects upon interstate commerce of possessing a gun in a school zone.36 Finally, the Court emphasized the attenuated link between the possession of guns in a school zone and any substantial effect on interstate commerce.37 The Court noted that under the government's rationale,38 Congress could regulate any activity, including those traditionally reserved to the states such as family law, criminal law, or education. Because of these four shortcomings, the Court held that the possession of guns in a school zone does not substantially affect interstate commerce and, consequently, Congress exceeded its authority under the Commerce Clause by enacting the GFSZA.39 |
| Four justices40 dissented, stating their belief that Congress acted within the perimeters of the Commerce Clause by enacting the GFSZA.41 The principal dissent, written by Justice Breyer, stated that Congress had a rational basis for finding a substantial relation between the possession of a gun in a school zone and interstate commerce.42 The dissent found three holes in the majority's opinion.43 First, according to the dissent the majority's opinion ran against modern Court cases upholding legislation with less significant connections to interstate commerce than those of the GFSZA.44 Second, Breyer criticized the majority's distinction between "commercial" and "noncommercial" transactions.45 [31 ELR 10415] Finally, the dissent saw the majority as creating "legal uncertainty in an area of law that, until this case, seemed reasonably well settled."46 For these reasons, the dissent concluded that the GFSZA should be upheld as valid legislation enacted pursuant to the Commerce Clause.47 |
| After Lopez |
| Lopez clearly marked a departure from the modern jurisprudential trend of recognizing a broad grant of power to Congress under the Commerce Clause. However, no one knew exactly how much of a departure Lopez was. Breyer's prediction that Lopez would create legal uncertainty48 came true. Commentators viewed Lopez from every possible angle and made dramatically different conclusions. Some viewed Lopez as a clear "about-face," while others saw the decision as a mere anomaly.49 The problem was that Lopez could be viewed as a reminder that the Commerce Clause did not grant a plenary power and a message to Congress that the Court was the ultimate authority on the scope of the Commerce Clause, or it could be viewed as the beginning of a complete upheaval of the expansive Commerce Clause jurisprudence that had existed since 1937.50 |
| The problem was further compounded by the issuance of a Commerce Clause decision just one week after Lopez. In United States v. Robertson,51 the Court upheld a conviction under the Racketeer Influenced and Corrupt Organizations Act (RICO).52 The Court upheld RICO as an appropriate exercise of the commerce power, because the defendant imported people and goods into the state of his residence in order to conduct an illegal business activity.53 If Robertson had been decided two weeks earlier, it would have passed by unnoticed as a standard Commerce Clause case. However, as it was decided in such close proximity to Lopez, it only added to the debate of how seriously to take the holding in Lopez. While law review writers struggled with this problem in the intellectual world, lower courts faced the more daunting task of struggling with this problem in the court-room. Although there existed a general plea to the Court for guidance, the problem was not addressed by the Court again until May 2000. |
| United States v. Morrison |
| On May 15, 2000, the Court decided another case arising under the Commerce Clause.54 In Morrison, the Court struck down § 13981 of the Violence Against Women Act (VAWA) (§ 13981)55 on the theory that Congress' authority under the Commerce Clause did not extend to allow such an enactment.56 In this closely divided opinion,57 the same Lopez majority followed the precedent of Lopez closely in analyzing the facts.58 In so doing, the Court concluded that the facts of Morrison ultimately led them to the same conclusion they reached in Lopez: Congress' Commerce Clause power does not extend as far as Congress attempted to reach.59 |
| The Court started with the same analysis that it used in Lopez.60 The majority began by stating that the federal government is one of enumerated powers, and that every law enacted by Congress must be enacted pursuant to one of its enumerated powers.61 As § 13981 was enacted pursuant to the Commerce Clause, the Court stated that although modern jurisprudence has allowed for expansive interpretation of the Commerce Clause, Lopez illustrated that Congress' Commerce Clause power is not without limits.62 Modern jurisprudence [31 ELR 10416] has allowed Congress to regulate under its Commerce Clause power in three broad areas63 |
| First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, … i.e., those activities that substantially affect interstate commerce.64 |
| The Court recognized that, as in Lopez, the statute under review did not fall under either of the first two categories, and had to be analyzed under the third category of Commerce Clause regulation.65 As Lopez was the most recent case dealing with Commerce Clause legislation under the third category, and as Lopez clarified such legislation, the Court stated that Morrison would be analyzed under the framework of Lopez.66 Thus, the Court examined § 13981 under the factors it articulated in Lopez as important when analyzing Commerce Clause regulation of activities that substantially affect interstate commerce.67 |
| Economic Nature |
| First, the Court noted that, like the GFSZA examined in Lopez, § 13981 does not regulate activity that is economic in nature.68 The Court observed that "gender-motivated crimes of violence are not, in any sense of the phrase, economic activity."69 The Court stressed that the noneconomic, criminal nature of the activities regulated by the GFSZA was central to its decision in Lopez.70 Although the Court had previously upheld regulation of intrastate activity where it substantially affected interstate commerce, the Court observed that such legislation had only been upheld in situations in which the activity in question was economic.71 The Court stated, "while we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature."72 Thus, the noneconomic nature of the activity at issue in § 13981 was a characteristic that was decisive to the Court's Commerce Clause analysis. |
| The Jurisdictional Element |
| Next, the Court noted that in Lopez it was significant that the GFSZA did not contain an express jurisdictional element, or nexus, that would limit the statute's reach to a discrete set of gun possessions having an "explicit connection with or effect on interstate commerce."73 Like the GFSZA, § 13981 did not contain a jurisdictional element which would ensure that the specific activity in question substantially affected interstate commerce.74 Instead, § 13981 covers a broader, and "more purely intrastate," range of violent activity.75 |
| Express Congressional Findings |
| The Court observed that in Lopez neither the GFSZA nor the legislative history contained congressional findings regarding the effects that possession of a gun in a school zone had upon interstate commerce.76 While ordinarily Congress is not required to make such determinations, factual findings could allow the Court to evaluate Congress' judgment that a substantial relationship exists between the activity being regulated and interstate commerce, particularly when the nexus is not obvious to the Court.77 Unlike in Lopez, Congress, when enacting § 13981, did make a vast amount of congressional findings regarding the effect of gender-motivated violence upon interstate commerce.78 However, the Court noted that "the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation."79 The Court stressed that ultimately the question of whether activities affect interstate commerce enough to fall under the power of the Commerce Clause is a judicial question, not a legislative question.80 |
| Express congressional findings of the effect of a statutory regulation on commerce seem to be a makeweight. The attorneys can establish such an effect in their briefs, or the courts themselves can make the determination. Under a rational basis standard of review, moreover, such an effect can be inferred without actual findings being presented. |
| Attenuated Link |
| Finally, the Court restated that its decision in Lopez was influenced by the attenuated link between gun possession and a substantial effect on interstate commerce.81 The Court stressed that attenuated links can operate to destroy the Constitution's distinction between what is local and what is national.82 It observed that the government's argument in Morrison was not unlike that in Lopez, in that if accepted, it would allow the government unbridled power to regulate everything from family law to murder, or any other area of traditional state regulation.83 Thus, the Court held in Morrison [31 ELR 10417] that the government's but-for causal chain between violence and interstate commerce was too attenuated to withstand constitutional muster.84 As § 13981 could not pass judicial review analyzed against the precedent of Lopez, a bare majority of the Court held that § 13981 was not a valid enactment under the Commerce Clause.85 |
| Although joining the majority opinion, Justice Thomas filed an additional concurring opinion.86 He contended that the "substantial effects" test is inconsistent with the framers' original intent and with early Commerce Clause jurisprudence.87 He urged that the Court abandon this test and adopt one more consistent with the original interpretation of the Commerce Clause, and warned that until the Court did so, Congress would continue to legislate unlawfully under the Commerce Clause.88 |
| Morrison generated two dissents.89 Justice Souter wrote the principal dissent, in which Justices Stevens, Ginsburg, and Breyer joined.90 Justice Breyer also filed a dissenting opinion in which Justices Souter and Ginsburg joined as to part I-A, and in which Justice Stevens joined for the entirety.91 |
| Justice Souter argued that the majority claim that it leaves Commerce Clause precedent undisturbed could not be reconciled with the conclusion that § 13981 exceeds Congress' power under the Commerce Clause.92 Justice Souter said that Congress "has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce."93 He further stated that this determination is for the legislature, not the courts, to decide.94 The courts' role is simply to review the legislative determination to make sure that the decision is rational.95 Along this vein, he pointed to the "mountain of data assembled by Congress … showing the effects of violence against women on interstate commerce."96 In the face of this "mountain of data,"97 Congress surely had a rational basis for finding that gender-motivated violence substantially affected interstate commerce.98 |
| Justice Souter also argued that § 13981 would have passed constitutional muster anytime between Wickard and Lopez, and the fact that § 13981 does not pass muster today was a clear sign that the current Supreme Court had deviated from established Commerce Clause jurisprudence.99 Consequently, the dissent maintained, the Court had created a new creature, a new standard of review without defining it or giving it any cohesive shape or form.100 The dissent proceeded to outline the history of the Commerce Clause and some of the shortcomings of previous, formalistic failed tests.101 Justice Souter then held up the majority's new standard to these old standards in an attempt to understand why the Court seemed to be reviving standards which have already failed.102 The dissent maintained that the current Court was attempting to breathe the concerns of federalism into an area in which it has no business occupying.103 The dissent ended by predicting that the majority's view would not withstand the test of time and inevitably Commerce Clause jurisprudence would return to the pre-Lopez period.104 |
| In his dissent, Justice Breyer pointed out the impracticality of closeting the concept of economic activities, and the undesirability of doing so. Moreover, he said, Congress could circumvent this limitation by using the nexus approach to commerce legislation.105 |
| After Morrison |
| With the majority opinion in Morrison, the Court sent a clear message that Lopez was not an anomaly. Or did it? At this point, it seems apparent that if any message was sent at all, it certainly was not clear. The only obvious message sent out by Lopez and Morrison is that future Commerce Clause cases will be decided under a stricter standard than rational basis, although the Court does not admit that this is what it is doing. After Lopez, lower courts and commentators were pleading for the Court to take another Commerce Clause case and address the many ambiguities that Lopez created.106 The Court responded to these pleas by taking another Commerce Clause case, and deciding it just as ambiguously as it decided Lopez. Now, once again, lower courts are left to decipher an incoherent and unworkable rule under the standards articulated in Lopez and reiterated in Morrison. The inherent problems in the Lopez and Morrison standards make the Rehnquist Court's new Commerce Clause jurisprudence difficult to understand and impossible to apply uniformly or with any predictability. One is left with [31 ELR 10418] the deeply disturbing impression, therefore, that future cases can and will be decided under the Commerce Clause according to the unannounced agenda of the Court deciding the case. |
| The Unworkable Standards |
| Part of the trouble inherent in the Lopez and Morrison standards arises from the majority's refusal to admit it is changing the Commerce Clause landscape. With one hand the majority refuses to relinquish the rational basis test, while with the other the majority strikes down legislation with standards clearly stricter than rational basis.107 At least Justice Thomas is straightforward in his desire to abandon pre-Lopez jurisprudence and unequivocally proclaim a new standard.108 While the best choice would be to leave rational basis review intact and abandon the unworkable standards in Lopez and Morrison, certainly the worst choice is to keep the unworkable standards without clarifying the Court's intent. The confusion that the Court's ambivalence creates is evident in the struggles of the lower courts as they try to determine how to interpret Lopez and Morrison. |
| For example, in Gibbs v. Babbitt,109 a recent Fourth Circuit case upholding federal regulation as valid under the Commerce Clause, the dissent criticized the majority regarding its attitude toward Lopez and Morrison.110 The dissent spoke of these two cases as "landmark decisions" deserving great respect.111 While any Supreme Court decision arguably deserves respect, the feeling that is evoked from the dissent is almost worshipful. One gets the notion that Judge Luttig was waiting for Lopez for a long time and was extremely annoyed that everyone was not embracing it as a huge limitation on congressional power under the Commerce Clause. He scolded the majority by saying that had the Court issued the Fourth Circuit's Gibbs opinion, "Lopez and Morrison would be consigned to aberration."112 Yet the two opinions, by providing imprecise and unworkable standards, allow for confusion, inconsistent application, and the possibility of "consigning" meaningful judicial standards for review to "aberration." |
| As Gibbs illustrates, the standard the Court has elucidated is unworkable in that it is subject to manipulations by judges who may or may not want to apply it strictly.113 It is likely that situations such as Gibbs will be very common for courts applying Lopez and Morrison. Members of sharply divided courts will be accusing each other of abandoning the precedent of Lopez when both sides believe they are following Lopez faithfully.114 This result will lead to contention on the bench, confusion among lawyers, and inconsistent results. |
| The Economic/Noneconomic Distinction |
| Lopez and Morrison turn in large part upon the economic-noneconomic distinction regarding the activity being regulated.115 This distinction is flawed for several reasons. First, the language of the Constitution "says nothing about … the economic nature of an interstate-commerce-affecting cause."116 The Constitution gives Congress the power to regulate not just economic activities, but all activities affecting interstate commerce. Thus, in restricting Congress' power to regulate interstate commerce to those activities which are economic in nature, the Court is not merely interpreting the Constitution, but rewriting it. |
| The economic requirement is especially dangerous because it has not been sufficiently defined by the Court in either Lopez or Morrison. The effect of this uncertainty will mean that how courts define "economic" or characterize the activity at issue will likely determine the outcome in any given case. The dissents in these two cases have already pointed out that the troubles inherent in the "economic" determination. In Morrison, for example, Justice Breyer said that the determination of what is "economic" is problematic in itself,117 and is further troublesome when considering the exceptions the Court has already allowed.118 |
| Perhaps the most important current case illustrating the economic characterization problem is Gibbs.119 Gibbs comes out of the Fourth Circuit, where the court upheld a regulation promulgated under the authority of the Endangered Species Act of 1973 (ESA)120 as a valid exercise of Congress' Commerce Clause power.121 The Fourth Circuit held that the taking of red wolves on private land involved an economic activity.122 The court contrasted the taking of red [31 ELR 10419] wolves with gender-motivated violence and possessing guns in a school zone by stating that the taking could be seen as economic activity.123 The court held that the primary reason that people "take" red wolves is to protect commercial and economic assets.124 Thus, since the underlying activity was economic in nature, the individual takings could be aggregated to determine the effects on interstate commerce.125 These effects upon interstate commerce can be seen in the areas of tourism, scientific research, commercial trade in fur pelts, and agriculture.126 As these effects were all substantial, the regulation passed constitutional muster.127 |
| It is important to note that this analysis turns on the classification of takings as "economic." If the court did not make the determination that the taking of red wolves was an activity essentially commercial or economicin nature, then the intrastate activity would not be aggregated.128 As a practical matter, if aggregation is not permitted, the regulation of intrastate activity will likely fail a constitutional review. For example, were it not for the aggregation principle, Wickard would likely have been decided the other way.129 If the court here had determined that the taking of red wolves was not economic,130 the court would not have aggregated the activity to determine the effects on interstate commerce.131 Thus, any effects on tourism, agriculture, the fur pelt industry, or scientific research would have been irrelevant because surely the effect of one taking on these fields would not be substantial. |
| Lopez and Morrison could potentially have disastrous effects on environmental laws. While the Court may generally support environmental protections, the economical-noneconomical distinction may bode ill for a wide range of environmental regulations. It is quite probable that environmental regulation will not be deemed an economic activity, and thus the effects would not be aggregated.132 In fact, a recent Court decision casts an ominous shadow on the future of environmental regulation. |
| In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC),133 the Court addressed a regulation promulgated under the Clean Water Act (CWA).134 While the Court ultimately struck down the regulation on statutory construction grounds,135 the majority opinion136 included discussion of the Commerce Clause question. The Court stated that even if the statute clearly gave the Corps the authority to promulgate the disputed regulation, the legislation would raise "significant constitutional questions."137 The majority noted that Lopez and Morrison serve as reminders that congressional power under the Commerce Clause is not unlimited, and the regulation of intrastate activity is subject to constitutional restraint.138 Finally, the Court stated that allowing regulation over intrastate ponds and mudflats would result in "a significant impingement of the States' traditional and primary power over land and water use."139 This language, while apparently [31 ELR 10420] dictum,140 does not foreshadow a secure future for environmental regulations.141 Again, the result will turn primarily on how the Court characterizes the regulated activity. |
| The characterization problem can also be seen in a recent Third Circuit case upholding the constitutionality of legislation enacted pursuant to Congress' Commerce Clause power. United States v. Gregg142 involved an attack on the constitutionality of the Freedom of Access to Clinic Entrances Act (FACE).143 FACE is a federal statute aimed at prohibiting abortion protesters from blocking the entrances to health care facilities by assessing statutory damages for any such violation.144 While noting that Lopez was a change in the "Commerce Clause landscape,"145 the court concluded that "FACE is a proper exercise of Congress's power to regulate intrastate conduct that, in the aggregate, has a substantial effect on interstate commerce."146 |
| Both the majority and the dissent found that if FACE were to be upheld, it must fall under the third category of activities which Congress can regulate, those substantially affecting interstate commerce.147 Both the dissent and the majority also followed the four important factors of Lopez and Morrison closely in assessing the constitutionality of FACE.148 Yet the dissent and the majority, applying the same standard to the same facts, reached completely different results.149 The biggest of these discrepancies can be found in the treatment under the first factor, the economic-noneconomic determination.150 |
| Both the majority and the dissent recognized that the noneconomic nature of the activities in Lopez and Morrison was important in the ultimate determination that the legislation in question was unconstitutional.151 Yet, when determining whether the activities covered by FACE were economic, the majority and dissent came to different conclusions.152 The majority stressed that "economic activity can be understood in broad terms."153 The majority noted that the "primary goal of individuals and groups engaged in the misconduct prohibited by FACE is to temporarily and permanently interrupt the operations of reproductive health facilities and prevent individuals from accessing their services."154 This motivation, coupled with the fact that violence against health facilities causes millions of dollars of damage each year, was enough to make the majority view the activity regulated by FACE as economic.155 The dissent, on the other hand, characterized the activity under FACE as noncommercial.156 It stated that "the services provided by abortion clinics are clearly commercial in nature, conducted as they are in exchange for money. But these services are not the activities targeted by the legislature."157 Instead, the dissent saw the targeted activities as fundamentally criminal in nature, as in Lopez and Morrison, because the activities involved basically "trespassing, intimidation, and violence."158 The dissent criticized the majority as actually determining the commercial nature of the effects of the regulated conduct, which should be irrelevant under Lopez and Morrison until there is an assessment that the underlying activity is economic.159 |
| Another case that shows the inherent problems in the economic-noneconomic distinction is Jones v. United States.160 In Jones, the defendant was prosecuted for violating a federal arson statute in burning down his neighbor's residence. The Court said the statute could not constitutionally reach this conduct under the Commerce Clause, because the residence was not a commercial enterprise.161 But citing Russell [31 ELR 10421] v. United States,162 the Court reasoned that the statute could constitutionally reach rental apartments, because such dwellings were commercial in nature. Thus, the arsonist need not be engaged in an economic activity, he just need be acting upon an economic object. Under the Jones analysis, the VAWA struck down in Morrison could well have been upheld. Most women are economically engaged, either as employees or in the home.163 Drawing an analogy to Jones, it would not matter if the violator under the VAWA were engaged in an economic activity, because he would be acting upon an economic woman. |
| These cases illustrate the underlying problems with the economic standard of Lopez and Morrison. As Justice Breyer noted in a classic understatement in his dissent in Morrison, "the economic-noneconomic distinction is not easy to apply."164 Chief Justice Rehnquist conceded this problem when articulating the importance of the economic factor in Lopez: |
| Admittedly, a determination whether intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress' authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause will always engender "legal uncertainties."165 |
| Apparently, Rehnquist saw the uncertainty between economic and noneconomic as a necessary evil in the limitation of Congress and as preferable to the alternative of allowing Congress unbridled control under the Commerce Clause. But why not propose a different standard, one that is not so subject to manipulation by the courts or one that further defines commercial or noncommercial? The dissent in Gregg seems to define economic as something having to do with the exchange of money, or involving money.166 However, it remains unclear precisely what the Court means by "commercial" or "economic." The lack of a definition perhaps implies that the Court is not sure itself, in which case the Court should wait to make "economic nature" a standard when it knows what "economic" means. Through characterization, judges can either consciously or unconsciously manipulate the facts to achieve the desired result. Until the Court can articulate clearer, more specific definitions and standards, it should cease subjecting lower courts to the arbitrary and imprecise standard articulated in Lopez and Morrison. |
| Attenuated Link or Traditional State Concern |
| The federalism concerns in Lopez and Morrison also produce a troublesome standard. The rulings in both cases rest in part on the attenuated link between the regulated activity and interstate commerce.167 Both decisions propose that attenuated links should be avoided because they will lead to the obliteration of the distinction between national and local power.168 The standard is thus supposed to be "attenuated link," in order to avoid the federalism problem. However, courts are reading the two cases as saying the standard rests on determining what is traditionally a federal or state activity. Indeed, one gets the sense from reading Morrison that this federal-local distinction is exactly what the Court really intended to establish.169 The difference may at first appear to be a slight variation of semantics, but analyzing whether the link is attenuated can be completely different from analyzing whether Congress is attempting to regulate traditionally local activities.170 The "traditionally local activities" standard in Lopez and Morrison sounds suspiciously like the "traditional government function" test used in National League of Cities v. Usury.171 This test has been determined to be unworkable and incoherent,172 and Chief Justice Rehnquist should be wary of leading the Court back down the incomprehensible paths of federal versus traditional state functions or activities.173 Furthermore, beyond the fact that this standard is unworkable, it ignores the principle that "politics, not judicial review, should mediate between state and national interests."174 A rational basis review of Commerce Clause legislation would accomplish this principle. |
| The "traditionally local" standard suffers from the same indeterminate nature from which the "economic-noneconomic" standard suffers. Specifically, the imprecise nature of the standard allows for unpredictable manipulation [31 ELR 10422] by the courts. For example, in Gibbs the Fourth Circuit performed a federalism analysis of the anti-taking regulation.175 First, it determined that in light of recent and historic precedent, the regulation of wildlife is not within the exclusive and traditional power of the state.176 Next, the court noted that while states have the traditional police power to control and regulate local land use, it is now well established that Congress may regulate private land use for wildlife and environmental conservation.177 Thus, the court concluded that contrary to criminal acts dealing with the possession of guns, or violence against women, the area of environmental protection is an area of traditionally federal concern.178 The court indicated that not only is this an area in which Congress has traditionally and consistently acted, but if the federal government were not allowed to regulate the taking of endangered species on private land, such a restriction might upset the balance of federalism in the other direction.179 Therefore, the court held that allowing Congress to regulate in this area is consistent with notions of federalism. Yet an equally persuasive argument could be made that regulating land use is traditionally a state concern, and that the regulation is aimed at nothing more than private land use. Again, the final determination will turn on the characterization of the activity: land use or environmental protection.180 |
| The characterization problem of the traditionally local-national standard can also be seen in Gregg.181 The majority characterized the activity as the "national movement" that has the "single goal of eliminating the practice of abortion by closing abortion clinics."182 In enacting FACE, the majority stated, "Congress sought to regulate a truly national problem."183 The dissent, on the other hand, characterized the activity as a local matter, "blocking access to a building and verbally intimidating those who attempted to enter it," which belongs squarely within the province of the local police.184 |
| As previously discussed, it is unclear why the courts are engaging in a federalism analysis when the inquiry should properly be whether there is an attenuated link between the regulated activity and any substantial effects on interstate commerce.185 However, if lower courts are going to engage in this type of analysis, they clearly need more direction from the Court. Surely the proper inquiry should not be whether the activity is a national problem, as the majority in Gregg suggests.186 If that were the standard, then school violence or violence against women would clearly constitute national concerns and, accordingly, be subject to regulation by Congress. However, just as surely, the dissent's inquiry should not be proper either, in light of Usury and Garcia v. San Antonio Metropolitan Transit Authority.187 At the very least, if these are not the proper inquiries, then the Supreme Court needs to give more direction on how to analyze legislation under the "traditionally local" standard of Lopez and Morrison. |
| The Jurisdictional Element |
| The jurisdictional element factor is also problematic. In both Lopez and Morrison, the Court based its decision on the fact that neither of the two relevant statutes contained an express jurisdictional element, or nexus.188 The first and most glaring fault with the nexus factor—at least from the Court's perspective—is that it could be exploited by Congress to uphold any Commerce Clause statute. Indeed, Breyer pointed this out in his dissent in Morrison.189 He stated that "in a world where most everyday products or their component parts cross interstate boundaries, Congress will frequently find it possible to redraft a statute using language that ties the regulation to the interstate movement of some relevant object, thereby regulating local criminal activity or, for that matter, family affairs."190 Thus, in order to be deemed constitutionally valid, legislation will focus on particular items in interstate commerce, leading to "random results."191 For example, while violence against women may not be regulated, violence against women involving weapons that have moved through interstate commerce could be.192 Any doubt that this type of conjecture can only be found in law reviews or dissenting opinions is erased through an analysis of post-Lopez law. After Lopez, Congress amended the GFSZA to include a jurisdictional element providing that the particular firearm in question must have traveled in or affected interstate commerce.193 The Eighth Circuit found that the amended statute contained a nexus that ensured "on a case-by-case basis, that the firearm in question affects interstate commerce."194 Thus, the statute was held constitutional.195 |
| Indeed, one wonders why the jurisdictional element must be expressly stated in a statute in order for the statute to pass constitutional muster under the Commerce [31 ELR 10423] Clause. Cannot the nexus be inferred from the facts, as in Robertson?196 It seems mechanistic to require an express statutory pronouncement, just as it seems mechanistic to require congressional findings of impact on commerce as a basis for upholding the constitutionality of a Commerce Clause regulation.197 |
| The potential impact of the jurisdictional element factor is far-reaching. May Congress save any statute by simply adding a nexus? The discussion of the nexus factor in Lopez and Morrison is extremely limited. Thus, Congress and lower courts are unclear on how far to take the nexus factor. Presumably, so long as a statute has a jurisdictional element it may regulate traditionally local activity and noneconomic activity.198 However, this premise is called into question in light of Jones.199 Jones involved a statutory analysis of a federal arson statute making it a crime to damage or destroy by fire any building "used in interstate or foreign commerce or in any activity affecting interstate commerce."200 This language could be characterized as the nexus, requiring that the particular item (the building) being regulated have some link to interstate commerce. According to Lopez and Morrison, this jurisdictional element should have been enough to ensure the constitutionality of the statute.201 However, the Jones Court engaged in a statutory analysis to determine whether private dwellings were included in the arson statute.202 It construed the statute as to exclude private dwellings from the scope of the statute, in order to avoid a constitutionally doubtful construction of the statute.203 The Court reasoned that in light of Lopez, it was wise to avoid the constitutional issues that would arise if they were to read the arson statute as to include "traditionally local criminal conduct" (the arson of private dwellings).204 The Court rejected the argument that private dwellings are "used" in interstate commerce merely because their construction supplies, or utilities, or mortgages have traveled in interstate commerce.205 Thus, the Court seems to be putting some sort of qualification on the jurisdictional element, perhaps implying that the nexus must be somehow closely related to the regulation. |
| In light of Jones, it is probable that the nexus factor itself may be subject to proximate cause-type limitations. How close must the nexus be related in time and relevancy to the regulated activity? In United States v. Rodia,206 the Third Circuit held that there are such limitations on the jurisdictional element factor. The court assessed the constitutionality of a federal statute making it a crime to possess child pornography when the pornography itself or the materials used to create the pornography had traveled in interstate commerce.207 The material constituting the nexus to interstate commerce, in Rodia, was the Polaroid film with which the pornographic photographs were made.208 The court said that the jurisdictional element, the Polaroid film that had traveled in interstate commerce, was "only tenuously related to the ultimate activity regulated: intrastate possession of child pornography."209 Thus, the court held that the particular jurisdictional element at issue was not sufficient to establish congressional power under the Commerce Clause.210 |
| Rodia raises the valid issue of determining how connected the nexus must be in time and relevance to the activity being regulated. May Congress regulate all guns that have traveled in interstate commerce, or just those that have traveled in interstate commerce within, say, the past 20 years? If Congress may regulate such guns, may it also regulate the buildings into which one takes those guns, even if the buildings are noncommercial private dwellings? Such proximate cause questions cast more shadows on the already gray areas of Lopez and Morrison, and only further illustrate how unworkable these standards are in their practical application. The Serbonian bog of proximate causation should well be avoided as a constitutional basis for determining Commerce Clause legitimacy. |
| Other Ramifications |
| Finally, it is unclear what effect Lopez and Morrison will have on laws enacted to regulate the channels or instrumentalities of interstate commerce. On their face, Lopez and Morrison dealonly with the third category, laws regulating activity which substantially affects interstate commerce. However, if this category is narrowed, Congress may more often claim it is enacting laws dealing with the channels or instrumentalities of interstate commerce, where its power may be less limited. As the law stands now, it is unclear how instrumentalities and jurisdictional elements differ.211 Presumably, cars and bridges are instrumentalities, regardless of whether they actually move in interstate commerce.212 Lopez indicates that persons are like instrumentalities.213 Courts may be more liberal in their interpretations of what constitutes a channel or instrumentality if it will [31 ELR 10424] mean giving Congress greater latitude to enact laws pursuant to the Commerce Clause.214 Again, it will depend on the ideology of the court and whether it wishes to construe Lopez and Morrison narrowly or broadly. Either way, this factor will only mean more uncertainty in Commerce Clause jurisprudence. |
| Conclusion |
| It is true, as Chief Justice Rehnquist points out, that necessary legal determinations should not be avoided merely because they are difficult.215 However, the standards articulated in Lopez and Morrison are not only difficult, they are unworkable. As Justice Souter pointed out in Morrison, the practical result of applying these tests will inevitably lead to the kind of ad hoc review that characterized obscenity law in the 1960s and 1970s.216 The unpredictable state of obscenity law in this period is now infamous,217 and it should serve as a warning to the Court as to the results of such imprecise standards. While it may arguably be acceptable to identify obscenity by gut reaction,218 the area of Commerce Clause legislation is simply too important to leave to such ad hoc review. The dissent's admonition in Gibbs is well taken, "the affirmative reach and the negative limits of the Commerce Clause do not wax and wane depending upon the subject matter of the particular legislation being challenged."219 However, one gets the sense that this type of particular focus is exactly what is going on in Lopez and Morrison. The Court seems to be looking at the legislation, determining that it cannot possibly be constitutionally enacted under the Commerce Clause, and then working backwards to support this conclusion. This is the sort of circular legal reasoning that leads to unworkable standards. It is also likely that this sort of legal reasoning will fail the test of time.220 Furthermore, such thinking seriously undermines the propriety of constitutional review as established by Marbury v. Madison.221 |
| The alternative to the standards announced in Lopez and Morrison would be a return to the interpretation of broad congressional powers under the Commerce Clause that does not rest on distinctions of "economic" or "commercial" activity.222 While all local activities, when aggregated, seem to have a substantial effect on interstate commerce, this fact is not a "jurisprudential defect" but instead a "practical reality" of living in a "nation knit together by two centuries of scientific, technological, commercial, and environmental change."223 The Court should recognize this practical reality and return to merely reviewing the legislation to see if Congress had a rational basis for determining that the regulated activity substantially affected interstate commerce.224 Rational review would lead to reliance for the most part on political restrictions as to the scope of the federal commerce power. In view of the pervasive nature of commerce, such a result is more in keeping with the goals of our governmental system of checks and balances. |
| Present day Commerce Clause jurisprudence seems nothing more than a struggle between two of the branches of government, with neither Congress nor the Court willing to give up power they perceive they are entitled to under the Constitution. Probably the Commerce Clause has been interpreted more broadly in the period after Jones & Laughlin than the Framers intended.225 However, by articulating an incoherent standard in Lopez and reinforcing it in Morrison, the Court has overstepped its own boundaries of constitutional authority.226 With a new, unworkable and imprecise standard, there is a real danger of courts reaching too far and striking down statutes that, under modern jurisprudence, fall well within Congress' power to regulate pursuant to the Commerce Clause. As observed in Gibbs, "the irony of disregarding limits on ourselves in the course of enforcing limits upon others will assuredly not be lost on those who look to courts to respect restraints imposed by rules of law."227 |
| 1. U.S. CONST. art. I, § 8, cl. 3. |
| 2. See generally BORIS BITTKER, BITTKER ON THE REGULATION OF INTERSTATE AND FOREIGN COMMERCE (1999). |
| 3. See infra notes 7-18 and accompanying text. |
| 4. 514 U.S. 549 (1995). |
| 5. 120 S. Ct. 1740 (2000). |
| 6. Lopez, 514 U.S. at 549; Morrison, 120 S. Ct. at 1740. |
| 7. 301 U.S. 1 (1937). |
| 8. Lopez, 514 U.S. at 606 (Souter, J., dissenting). |
| 9. Id. |
| 10. 317 U.S. 111 (1942). |
| 11. Id. |
| 12. Id. |
| 13. Id. |
| 14. 379 U.S. 241 (1964). |
| 15. 379 U.S. 294 (1964). |
| 16. Heart of Atlanta Motel, 379 U.S. at 241. |
| 17. Id. |
| 18. Katzenbach, 379 U.S. at 294. See also Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 11 ELR 20569 (1981) (evidencing the broad scope of the Commerce Clause power). |
| 19. 514 U.S. at 549. |
| 20. Id.; 18 U.S.C. § 922 (1988) (making it a federal crime to possess a gun in a school zone). |
| 21. Lopez, 514 U.S. at 550. Additionally, Justices Kennedy, O'Connor, and Thomas each filed separate concurring opinions. Id. |
| 22. Id. at 552. |
| 23. Id. |
| 24. Id. at 552-53. |
| 25. Id. at 558. |
| 26. Id. |
| 27. Id. |
| 28. Id. at 558-59. |
| 29. Id. at 559. |
| 30. Id. |
| 31. Id. at 561. |
| 32. Id. at 561 (holding that because the GFSZA was not "an essential part of a larger regulation of economic activity," it could not be sustained under the line of cases which view commercial transactions in the aggregate). |
| 33. Id. |
| 34. Id. at 562. |
| 35. Id. |
| 36. Id. |
| 37. Id. at 564. |
| 38. The government argued that possessing a gun in a school zone would affect interstate commerce in two ways. Id. at 563. First, the high costs of violence are spread throughout the nation through the use of insurance. Id. at 563-64. Second, the existence of guns in schools, by threatening the learning process, will result in less productive citizens. Id. at 564. The Court rejected both the "costs of crime" argument and the "national productivity" argument as being too broad. Id. |
| 39. Id. at 567. |
| 40. Justices Stevens and Souter each filed dissenting opinions, and Justice Breyer filed a dissenting opinion in which Justices Stevens, Souter, and Ginsburg joined. Id. at 550. |
| 41. Id. at 615 (Breyer, J., dissenting). |
| 42. Id. at 618. |
| 43. Id. at 625. |
| 44. Id. Justice Breyer pointed to Perez v. United States, 402 U.S. 146 (1971) (upholding a federal loan sharking criminal statute), Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding the Civil Rights Act), Daniel v. Paul, 395 U.S. 298 (1969) (upholding the regulation of an intrastate amusement park inmid-Alabama), and Wickard v. Filburn, 317 U.S. 111 (1942) (upholding the regulation of consumption of homegrown wheat), as examples of cases upholding legislation with a more tenuous link to interstate commerce than the GFSZA. Id. at 625-27. |
| 45. Id. at 627. The dissent saw no distinction in the Constitution that would allow the regulation of commercial activities that substantially affect interstate commerce and not allow the regulation of non-commercial activities that equally affect interstate commerce. Id. at 627-28. |
| 46. Id. at 630. |
| 47. Id. at 631. |
| 48. See id. |
| 49. See, e.g., BITTKER, supra note 2, § 5.04[A]; OTIS H. STEPHENS JR. & JOHN M. SCHEB II, AMERICAN CONSTITUTIONAL LAW 107 (2d ed. 1999); Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came?, 2000 WIS. L. REV. 369. |
| 50. See Reynolds & Denning, supra note 49, at 369-70. |
| 51. 514 U.S. 669 (1995). |
| 52. Id. at 672. |
| 53. RICO is a criminal statute that prohibits the investment of proceeds derived from racketeering (here, drug trafficking) in the "acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce." Id. at 670; see also 18 U.S.C. § 1962(a). In Robertson, the enterprise the defendant was engaged in was the operation of a gold mine. Robertson, 514 U.S. at 670. The Court upheld the defendant's conviction under RICO, stating that the defendant was clearly engaged in interstate commerce. Thus, the Court did not need to address the question of whether the defendant's activities substantially affected interstate commerce. The Court stated that "the 'affecting commerce' test was developed in our jurisprudence to define the extent of Congress' power over purely intrastate commercial activities that nonetheless have substantial interstate effects." Id. |
| 54. United States v. Morrison, 120 S. Ct. 1740 (2000). Morrison originated at the Virginia Polytechnic Institute (Virginia Tech), where Christy Brzonkala was allegedly raped by Antonio Morrison and James Crawford. Id. at 1745. When the Virginia Tech's remedies failed to satisfy Brzonkala, she initiated a suit against Morrison and Crawford under § 13981. Id. at 1746. Brzonkala also sued Virginia Tech under Title IX of the Education Amendments of 1972, but that suit was ultimately dismissed and was not considered on appeal. Id. at 1746-47. In essence, § 13981, enacted pursuant to the Commerce Clause and § 5 of the Fourteenth Amendment, provides a civil remedy for violent acts motivated by gender. Id. at 1747-48. The U.S. District Court for the Western District of Virginia dismissed the § 13981 suit, as it held that Congress did not have the authority under either the Commerce Clause or § 5 of the Fourteenth Amendment to enact this legislation. Id. at 1746-47. A divided panel of the Fourth Circuit Court of Appeals reversed, and reinstated the § 13981 claim. Id. at 1747. However, the full court of appeals, sitting en banc, ultimately affirmed the District Court's opinion by a divided vote and dismissed the § 13981 claim because Congress lacked constitutional authority to enact the section's civil remedy. Id. TheSupreme Court granted certiorari and, by a 5-4 margin, affirmed. Id. at 1744-45. |
| 55. 18 U.S.C. § 13981. |
| 56. Morrison, 120 S. Ct. at 1740. The Court also concluded that the § 13981 could not be upheld as an exercise of Congress' remedial power under § 5 of the Fourteenth Amendment. Id. at 1759. However, the scope of this Article is limited to the discussion on the Commerce Clause. For discussions of Morrison, see Stephen R. McAllister & Robert L. Glicksman, Federal Environmental Law in the "New Federalism" Era, 30 ELR 11122 (Dec. 2000); Michael J. Gerhardt, Federal Environmental Regulation in a Post-Lopez World: Some Questions and Answers, 30 ELR 10980 (Nov. 2000); Charles Tiefer, After Morrison, Can Congress Preserve Environmental Laws From Commerce Clause Challenge?, 30 ELR 10888 (Oct. 2000); Philip Weinberg, Does That Line in the Sand Include Wetlands? Congressional Power and Environmental Protection, 30 ELR 10894 (Oct. 2000). |
| 57. Morrison was decided by a 5-4 margin. Id. at 1744. Chief Justice Rehnquist wrote the majority opinion, joined by Justices O'Connor, Scalia, Kennedy, and Thomas. Id. Justice Thomas also filed a separate concurring opinion. Id. Justice Souter filed a dissenting opinion, joined by Justices Stevens, Ginsburg, and Breyer, and Justice Breyer also filed a dissenting opinion, joined by Justice Stevens and in which Justices Souter and Ginsburg joined as to part I-A. Id. |
| 58. See generally id. |
| 59. Id. |
| 60. See supra notes 22-29 and accompanying text. |
| 61. Morrison, 120 S. Ct. at 1748. |
| 62. Id. |
| 63. Id. at 1749. |
| 64. Id. (internal citations omitted). |
| 65. Id. |
| 66. Id. |
| 67. Id. |
| 68. Id. at 1749-50. |
| 69. Id. at 1751. |
| 70. Id. at 1750. |
| 71. Id. at 1751. |
| 72. Id. One wonders what the practical difference would be if the Court did adopt a categorical rule against aggregating the effects of noneconomic activity, Rehnquist could be warning that aggregation is not allowed in noneconomic activity, but leaving himself a loophole in case there is some legislation he has not thought of in which he might want to aggregate. Alternatively, Rehnquist could be implying that aggregation of activity may not be allowed in some cases, even when the intrastate activity is economic in nature. It is this kind of equivocal language that reveals the shortcomings of Lopez and Morrison. |
| 73. Id. at 1751 (citing Lopez, 514 U.S. at 562). |
| 74. Id. at 1751-52. |
| 75. Id. at 1752. |
| 76. Id. at 1751. |
| 77. Id. |
| 78. Id. at 1752. |
| 79. Id. |
| 80. Id. (relying on Lopez, 514 U.S. at 557). |
| 81. Id. at 1751. |
| 82. Id. at 1753. |
| 83. Id. at 1752-53. |
| 84. Id. at 1752. |
| 85. Id. at 1759. |
| 86. Id. |
| 87. Id. |
| 88. Id. |
| 89. Id. at 1744. |
| 90. Id. at 1759. |
| 91. Id. Part II deals with the Court's decision under § 5 of the Fourteenth Amendment and is not considered in this Article. See id. |
| 92. Id. at 1759. |
| 93. Id. |
| 94. Id. 1759-60. |
| 95. Id. 1760. |
| 96. Id. This is, of course, in sharp contrast to Lopez, which had no express congressional findings on the link between possessing guns in a school zone and a substantial effect on interstate commerce. See supra note 36 and accompanying text. However, Justice Souter points to the data, not as evidence that § 13981 passed Lopez's muster, but as evidence that Congress had a rational basis for finding that violence against women had a substantial effect on interstate commerce. See infra note 97. |
| 97. Congress assembled vast amounts of support showing the substantial effects of violence against women on interstate commerce, including facts as unsettling as the following: "Three out of four American women will be victims of violent crimes sometime during their life": Morrison, 120 S. Ct. at 1761; "Partial estimates show that violent crime against women costs this country at least 3 billion … dollars a year"; id. at 1762; and "Less than 1 percent of all [rape] victims have collected damages." Id. |
| 98. Id. at 1763. |
| 99. Id. at 1764. Specifically, Justice Souter argued that the majority in both Lopez and Morrison maintained a mere nominal adherence to the substantial effects test. Id. |
| 100. Id. |
| 101. Id. at 1766-67. |
| 102. Id. at 1768. |
| 103. Id. at 1768-73. |
| 104. Id. at 1773-74. |
| 105. Indeed, Congress did just that by a post-Lopez amendment to the GFSZA. See United States v. Dank, 221 F.3d 1037 (8th Cir. 1999). See infra note 190 and accompanying text. |
| 106. See supra note 49 and accompanying text. |
| 107. See supra notes 99-100 and accompanying text. |
| 108. See supra notes 86-88. |
| 109. 214 F.3d 483, 30 ELR 20602 (4th Cir. 2000), cert. denied, Feb. 20, 2001. See McAllister & Glicksman, supra note 56, at 11133-35; Tiefer, supra note 56, at 10889-91. |
| 110. The majority began by stating that this case would be considered under the framework of Lopez and Morrison, Gibbs, 214 F.3d at 490, 30 ELR at 20604. The Fourth Circuit interpreted Lopez and Morrison as cases reestablishing the premise that the Commerce Clause power contains "judicially enforceable outer limits." Id. (citing Lopez, 514 U.S. at 566). The court noted that it was essential to keep the distinction in our government between what is local and what is national, id., and maintained that the judiciary has the responsibility to make the independent determination of whether Congress had a rational basis for concluding that the regulated activity substantially affects interstate commerce. Id. The court called this "rational basis with teeth." Id. At the same time, the Fourth Circuit recognized that "the Commerce Clause represents a broad grant of federal authority." Id. |
| 111. Id. at 509, 30 ELR at 20612 (Luttig, J., dissenting). |
| 112. Id. at 508, 30 ELR at 20611-12 (Luttig, J., dissenting). |
| 113. See generally Reynolds & Denning, supra note 49. |
| 114. Compare Gibbs, 214 F.3d at 508, 30 ELR at 20611-12 (dissent claiming that expansive view of the Commerce Clause power not supported by Lopez and Morrison) with id. at 491, 30 ELR at 20604 (recognizing a broad grant of power to Congress under the Commerce Clause). |
| 115. See supra notes 68-72. |
| 116. Morrison, 120 S. Ct. at 1775 (Breyer, J., dissenting). |
| 117. Id. at 1774. |
| 118. Id. These exceptions include noneconomic activities occurring at economic establishments, and regulation of intrastate activity where that regulation is part of "a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Id. at 1774-75. |
| 119. Gibbs, 214 F.3d at 483, 30 ELR at 20602. |
| 120. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18. |
| 121. Section 9(a)(1) of the ESA prohibits the taking of any endangered species. Gibbs, 214 F.3d at 487, 30 ELR at 20603. "Taking" includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting any endangered species. Id. The ESA allows for necessary regulations to be promulgated by the U.S. Fish and Wildlife Service (FWS) for the conservation of wildlife. Id. Pursuant to this authority, the FWS promulgated a regulation ex tending the takings prohibition of § 9(a)(1) to cover the taking of red wolves. 50 C.F.R. § 17.84(c). |
| 122. Gibbs, 214 F.3d at 492, 30 ELR at 20605. In Gibbs, Richard Lee Mann was prosecuted under § 17.84(c) for shooting a red wolf he thought would threaten his cattle. Id. at 489, 30 ELR at 20603 Mann's prosecution ignited public debate and opposition to the red wolf program. Id. In response to this opposition, the North Carolina General Assembly passed a bill allowing a landowner to kill a red wolf on private property if that landowner had previously requested that the FWS remove the red wolves from the property. Id. Thereafter, several appellants initiated suit seeking a declaration that the anti-taking provision of § 17.84(c), as applied to red wolves in eastern North Carolina, exceeded Congress' power to regulate interstate commerce. Id. The U.S. District Court for the Eastern District of North Carolina held that Congress had the authority under the Commerce Clause "to regulate conduct that might harm red wolves on private land." Id. at 489-90, 30 ELR at 20604. The district court so held because it found that, as red wolves move across state lines and their movement is followed by tourists, scientists, and academics, red wolves are "things in interstate commerce." Id. at 490, 30 ELR at 20604. The appellate court analyzed the case, not under the second prong of Commerce Clause regulation (things in interstate commerce), but under the third prong (substantial effects). Id. at 491, 30 ELR at 20604. |
| 123. Id. at 492, 30 ELR at 20604. While the court recognized the importance of the economic inquiry, it also stated that "economic activity must be understood in broad terms." Id. at 491, 30 ELR at 20604 (relying on Wickard to show the breadth of the term "economic"). |
| 124. Id. at 492, 30 ELR at 20605 (referring mainly to livestock and crops). |
| 125. Id. at 493, 30 ELR at 20605. |
| 126. Id. at 493-96, 30 ELR at 20605-06. The effects on tourism can be seen in that many people travel across state lines to go to "howling events." Id. at 493, 30 ELR at 20605. While in attendance, tourists spend a large amount of money in tourist-related activities. Id. at 493-94, 30 ELR at 20605. The taking of red wolves affects tourism in that, in the aggregate, it threatens to significantly increase or decrease the tourism industry. Id. at 494, 30 ELR at 20605. The taking of red wolves can also affect the field of scientific research by decreasing or increasing jobs, and affecting our "knowledge of the world in which we live." Id., 30 ELR at 20606. The taking of red wolves, by decreasing or increasing the number of wolves, could also potentially affect the possibility of a revival of the fur pelt industry. Id. at 495, 30 ELR at 20606. Finally, the taking of red wolves could substantially affect the agricultural field, either negatively if the wolves threaten livestock and crops or positively by preying on the animals that seriously threaten crops. Id. |
| 127. Id. at 497, 30 ELR at 20607 ("We therefore hold that the antitaking provision at issue here involves regulable economic and commercial activity as understood by current Commerce Clause jurisprudence."). |
| 128. See id. at 493, 30 ELR at 20605. The determination of what is economic or commercial is rife with problems in and of itself. See infra note 166 and accompanying text. |
| 129. See Wickard, 317 U.S. at 111. |
| 130. As indeed the dissent believed. Gibbs, 214 F.3d at 507, 30 ELR at 20611. The dissent in Gibbs can best be described as a scathing attack on what he perceives as the majority's too narrow reading of Lopez and Morrison. See id. at 506-10, 30 ELR at 20611-12. In his dissent, Judge Luttig accuses the majority in Gibbs with following the dissenters in Lopez and Morrison rather than following the now established precedent restricting the scope of the Commerce Clause power. Id. at 508, 30 ELR at 20611-12. The dissent would instead find that the taking of red wolves is not an economic activity, or, even if it is an economic activity, it does not substantially affect interstate commerce. Id. at 507, 30 ELR at 20611. |
| 131. See supra note 128. |
| 132. It is possible that even if the Supreme Court did not uphold environmental laws because the activity involved was noncommercial, the Court might uphold them as being traditionally a national concern. However, as discussed infra, this standard is subject to as many variables and uncertainties as the economic-noneconomic standard. |
| 133. 121 S. Ct. 675 (2001). |
| 134. 33 U.S.C. § 1344(a), ELR STAT. FWPCA § 404(a) (conferring jurisdiction over "navigable waters"). The U.S. Army Corps of Engineers interpreted navigable waters to include "an abandoned sand and gravel pit in Northern Illinois which provides habitat for migratory birds." SWANCC, 121 S. Ct. at 677. |
| 135. The Court held that the Corps was without the statutory authority to include a gravel pit as "navigable waters" under the enabling statute. Id. at 678. |
| 136. SWANCC was another 5-4 opinion, SWANCC, 121 S. Ct. at 684, with the same division of members as in Lopez and Morrison. For pre-decision analyses of the statutory and constitutional issues, see McAllister & Glicksman, supra note 56, at 11128-33; Gerhardt, supra note 56, at 10986-91; Weinberg, supra note 56, at 10896-99. |
| 137. SWANCC, 121 S. Ct. at 682. |
| 138. Id. |
| 139. Id. at 684. |
| 140. Arguably the Commerce Clause discussion was holding, and not dictum. The majority may have been examining the Commerce Clause as an alternate constitutional basis for sustaining the statute. If so, it found that basis constitutionally deficient. |
| 141. Perhaps even more ominous is the dissent, written by Justice Stevens, with whom Justices Souter, Ginsburg, and Breyer joined. Id. at 684-96. The dissenters would not have struck down the legislation as outside the realm of the enabling statute, so they addressed the Commerce Clause challenge in more depth than did the majority. Id. at 693-96. The dissent would uphold the regulation for many of the same reasons the Fourth Circuit used to uphold the takings provision in Gibbs. Id. While the dissent's argument upholding the regulation under Commerce Clause is articulate and persuasive, it is, after all, the dissenting opinion. Given the continuous sharp division between the majority and the dissent in Commerce Clause decisions, finding these arguments in the dissent may be worse for the future of environmental laws than not finding the arguments in the opinion at all. |
| 142. 226 F.3d 253 (3d Cir. 2000). |
| 143. 18 U.S.C. § 248 (2000). Gregg also involved challenges as to statutory construction and First Amendment rights, but these arguments are not within the scope of this Article. The court noted that seven other circuits, when addressing the issue, had concluded that FACE was constitutional under the Commerce Clause. Gregg, 226 F.3d at 261. However, the Third Circuit was the first post-Morrison court to address FACE. |
| 144. Id. In Gregg, the defendants had been ordered by the U.S. District Court for the District of New Jersey to pay statutory damages for their violation of FACE in blocking access to a reproductive health clinic in Englewood, New Jersey. Id. at 256. The defendants appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the district court's determination that FACE was constitutionally enacted pursuant to the Commerce Clause. Id. at 257. |
| 145. Id. at 261. |
| 146. Id. at 262. The dissent in Gregg maintained that the previous courts which had addressed FACE did so under the belief that Lopez was a narrow holding, but that Morrison indicated that Lopez had "application beyond its unique factual setting." Id. at 268 (Weis, J., dissenting). The dissent then emphasized that Lopez and Morrison "mandate limits to the federalization of local crime under the aegis of the Commerce Clause." Id. Applying Lopez and Morrison to FACE, the dissent found that FACE constituted an unconstitutional extension of Congress' Commerce Clause power. Id. at 269. |
| 147. Id. at 262, 269. |
| 148. Id.; see also supra notes 30-39, 68-85 and accompanying text. |
| 149. The majority and the dissent to some extent agreed on the results under the second and third factors in Lopez and Morrison (jurisdictional element and congressional findings). |
| 150. Compare Gregg, 226 F.3d at 262-63 with id. at 269-70 (Weis, J., dissenting). |
| 151. Compare Gregg, 226 F.3d at 262-63 with id. at 269-70 (Weis, J., dissenting). |
| 152. Compare Gregg, 226 F.3d at 262-63 with id. at 269-70 (Weis, J., dissenting). |
| 153. Gregg, 226 F.3d at 262. This is the same statement made by the majority in Gibbs, which ultimately reached the conclusion that the taking of red wolves on private property was an economic activity. Gibbs v. Babbitt, 214 F.3d 483, 491, 30 ELR 20602, 20604 (4th Cir. 2000). |
| 154. Gregg, 226 F.3d at 262. |
| 155. Id. at 262-63. |
| 156. Id. at 269 (Weis. J., dissenting). |
| 157. Id. |
| 158. Id. |
| 159. Id. (relying on Lopez, 514 U.S. at 549 and Morrison, 120 S. Ct. at 1740) ("It is apparent that the Court examined the prohibited conduct without reference to its economic effects. Courts reviewing FACE should employ a similarly disciplined analysis."). |
| 160. 120 S. Ct. 1904 (2000). |
| 161. The Court based this analysis on an interpretation of the word "used" in the relevant statute. Thus, the Court confusingly commingled the nexus aspect "used in" with the commercial activity aspect. A fair reading of Lopez and Morrison, however, is that these are separate bases for commerce jurisdiction, and the nexus basis should not require that the interstate activity be economic in nature. See infra note 198 and accompanying text. |
| 162. 471 U.S. 858 (1985). |
| 163. All women need not be so engaged, or so engaged all the time, in order for the activity to be constitutionally regulable. See Reno v. Condon, 120 S. Ct. 666 (2000), in which the Court upheld federal regulation of state releases of drivers' licenses and registration information, even though all such releases were not for economic purposes. Compare United States v. Rodia, 194 F.3d 465 (3d Cir. 1999), in which the Third Circuit upheld the criminalization of personal possession of pornography under the Commerce Clause, even though such possession may not have been for commercial purposes. Relying on Wickard, the court found that "child pornography is a multimillion dollar, nationwide industry," which is substantially affected by such possession. |
| 164. Morrison, 120 S Ct. at 1774 (Breyer, J., dissenting). Justice Breyer posited a variety of probing questions into what kind of activities could be considered commercial. Id. Maybe pickpocketing, or mugging? Id. |
| 165. 514 U.S. at 566. |
| 166. Gregg, 226 F.3d at 269-70 (Weis, J., dissenting). |
| 167. See supra notes 81-85 and accompanying text. |
| 168. See Lopez, 514 U.S. at 567; Morrison, 120 S. Ct. at 1753. |
| 169. See Morrison, 120 S. Ct. at 1753-54. |
| 170. The "attenuated link" standard has overtones of the discredited direct-indirect test used in Jones & Laughlin. See supra note 7. Alternatively, the standard may hint at an unwillingness to aggregate economic effects. |
| 171. 426 U.S. 833 (1976). |
| 172. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). See also Morrison, 120 S. Ct. at 1768 (Souter, J., dissenting) (citing Gibbons v. Ogden, 22 U.S. 1, 9 Wheat 1, 197 (1924) ("The effort to carve out inviolable state spheres within the spectrum of activities substantially affecting commerce was, of course, just as irreconcilable with Gibbons's explanation of the national commerce power as being as 'absolute as it would be in a single government.'"). |
| 173. Although Usury rested on a Tenth Amendment premise, the same weaknesses that ultimately led to Usury's demise in Garcia are present in the Lopez and Morrison distinction between what is traditionally local and what is traditionally national for Commerce Clause purposes. |
| 174. Morrison, 120 S. Ct. at 1772. See also id. at 1771 ("The Garcia Court's rejection of 'judicially created limitations' in favor of the intended reliance on national politics was all the more powerful owing to the Court's explicit recognition that in the centuries since the framing the relative powers of the two sovereign systems have markedly changed."). |
| 175. Gibbs, 214 F.3d at 483, 30 ELR at 20602. The court noted that "Lopez and Morrison properly emphasize that we must carefully evaluate legislation in light of our federal system of government." Id. at 499, 30 ELR at 20608. Thus, the court found it "imperative" to evaluate the "historic roles of federal and state authority in this area." Id. |
| 176. Id. |
| 177. Id. at 500, 30 ELR at 20608. |
| 178. Id. |
| 179. Id. at 504, 30 ELR at 20610 (stating that a rule limiting federal regulation of environmental matters to federal lands would "place in peril the entire federal regulatory scheme for wildlife and natural resource conservation"). See also id. at 505, 30 ELR at 20610 ("It is as threatening to federalism for courts to erode the historic national role over scarce resource conservation as it is for Congress to usurp traditional state prerogatives in such areas as education and domestic relations."). |
| 180. In fact, of course, the activity incxtricably involves both interests. |
| 181. Gregg, 226 F.3d at 253. |
| 182. Id. at 264. |
| 183. Id. at 265. |
| 184. Id. at 273 (Weis, J., dissenting). |
| 185. See supra notes 167-74 and accompanying text. |
| 186. Gregg, 226 F.3d at 253. |
| 187. 469 U.S. 528 (1985). See supra notes 172-74 and accompanying text. |
| 188. See Morrison, 120 S. Ct. at 1751-52; Lopez, 514 U.S. at 562. Contrast United States v. Bass, 404 U.S. 336 (1971). In Bass, the Court interpreted a firearm statute to require a specific nexus to interstate commerce. Id. |
| 189. Morrison, 120 S. Ct. at 1775-76 (Breyer, J., dissenting) (arguing that the majority's focus on a jurisdictional element would fail to protect the federalism concerns that Morrison was trying to address). |
| 190. Id. at 1776. |
| 191. Id. |
| 192. See id. |
| 193. 18 U.S.C. § 922(q)(2)(A) ("It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce."). |
| 194. United States v. Danks, 221 F.3d 1037, 1039 (8th Cir. 1999). |
| 195. Id. |
| 196. 514 U.S. at 669. See supra note 51 and accompanying text. |
| 197. See supra notes 76-80 and accompanying text. |
| 198. See Morrison, 120 S. Ct. at 1751-52; Lopez, 514 U.S. at 562 (both cases listing the lack of a jurisdictional element as an independent factor contributing to the unconstitutionality of the relevant statutes). |
| 199. 120 S. Ct. at 1904. See supra note 160 and accompanying text for a discussion of the economic-activity aspect of Jones. |
| 200. Jones, 120 S. Ct. at 1907; 18 U.S.C. § 844(i). |
| 201. See supra note 198. |
| 202. Jones, 120 S. Ct. at 1906. |
| 203. Id. at 1908. While the opinion was unanimous, id. at 1907, Justice Thomas wrote an astounding concurring opinion in which Justice Scalia joined. Id. at 1913. After joining the majority opinion, Justices Thomas and Scalia stated that in so joining they expressed no opinion on the constitutionality of the federal arson statute "as applied to all buildings used for commercial activities." Id. |
| 204. Id. at 1912. |
| 205. Id. at 1911. But see United States v. Robertson, 514 U.S. 699 (1995). |
| 206. 194 F.3d 465 (3d Cir. 1999). |
| 207. Id. at 469; see also 18 U.S.C. § 2252. |
| 208. Rodia, 194 F.3d at 469. |
| 209. Id. at 473. |
| 210. Id. However, the court continued and upheld the statute as constitutionally enacted under the Commerce Clause because Congress had a rational basis for believing that "the intrastate possession of pornography has a substantial effect on interstate commerce." Id. at 474. The court then elaborated on the traditional interpretation of the Commerce Clause. It upheld the statute because the intrastate possession of child pornography created a demand for more, and consequently interstate, pornography. Id. at 477. See supra note 163. |
| 211. The Third Circuit has stated that instrumentalities are objects which "are used as a means of transporting goods and people across state lines." Id. at 474 n.3 (citing United States v. Bishop, 66 F.3d 569, 588 (3d Cir. 1995)). However, the Supreme Court has gone so far as to treat a bridge as an instrumentality. Overstreet v. North Shore Corp., 318 U.S. 125 (1943). Clearly bridges do not move across state lines, unless they happen to be situated on such a line. |
| 212. See supra note 211. |
| 213. See supra note 27 and accompanying text. |
| 214. Unlike the power of Congress to regulate activities which substantially affect interstate commerce, "the power of Congress over the instrumentalities of interstate commerce is plenary; it may be used to defeat what are deemed to be immoral practices; and the fact that the means used may have 'the quality of police regulations' is not consequential." Cleveland v. United States, 329 U.S. 14, 19 (1946). |
| 215. See supra note 165 and accompanying text. |
| 216. Morrison, 120 S. Ct. at 1773-74. |
| 217. This is best evidenced by Justice Potter's remark in Jacobellis v. Ohio, 378 U.S. 184 (1964), in which he stated: "I know it when I see it." See STEPHENS & SCHEB, supra note 49, at 452. |
| 218. Jacobellis, 378 U.S. at 184. |
| 219. Gibbs, 214 F.3d at 510, 30 ELR at 20612 (Luttig, J., dissenting). |
| 220. Morrison, 120 S. Ct. at 1774 (Souter, J., dissenting) (citations omitted) ("This [regime] will end when the majority realizes that the conception of the commerce power for which it entertains hopes would inevitably fail the test expressed in Justice Holmes's statement that 'the first call of a theory of law is that it should fit the facts.'"). |
| 221. 5 U.S. 137, 1 Cranch 137 (1803). |
| 222. Lopez, 514 U.S. at 661-17 (Breyer, J., dissenting). |
| 223. Morrison, 120 S. Ct. at 1776 (Breyer, J., dissenting). |
| 224. See Lopez, 514 U.S. at 618 (Breyer, J., dissenting). |
| 225. However, it is difficult to satisfactorily return to the Framers' understanding of a constitutional clause in present day circumstances because the times and indeed the very meaning of words have dramatically changed. For an excellent illustration of this proposition, see Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547 (1999). |
| 226. See Gibbs v. Babbitt, 214 F.3d 483, 492, 30 ELR 20602, 20605 (4th Cir. 2000) ("To strike down statutes that bear substantially upon commerce is to overstep [the courts'] authority even as [the courts] fault Congress for exceeding limits on its own power."). |
| 227. Id. |
31 ELR 10413 | Environmental Law Reporter | copyright © 2001 | All rights reserved
|
