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| Contents: Chapter One Preparing To Learn How To Brief a Case Federalism Commentary on Reading and Understanding the Lopez Case United States v. Lopez Tips on Briefing a Case The State Governments and the Police Power People v. Kohrig Dual Federal-State Jurisdictional Friction Back to Top |
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Preparing To Learn How To Brief a Case This corresponds
to page xv of the textbook. |
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This corresponds
to website note A, page 14 of the textbook. One of the most important constitutional decisions made by the founders was that this country would have a federal form of government. Governmental power was to be distributed between the national and state governments as provided in a written constitution. In that Constitution, both the national and state governments were recognized as sovereign powers. As a result of this decision, state governments, within constitutional limits, can experiment and develop innovative solutions to public problems without having to obtain permission from other states or from the national government. Current examples include former Governor Ventura's proposal that Minnesota follow Nebraska and adopt a unicameral legislature (a single house state legislature), Oregon's enactment of an assisted suicide law, Vermont's "civil unions" legislation that provides gay couples with equivalent state-created rights to those afforded married couples (including receiving licenses from the government, having their civil union certified by justices of the peace, and an equivalent to a divorce procedure in family court called dissolution), and Louisiana's decision permitting juries to convict defendants in criminal cases where 9 out of 12 jurors are convinced of the defendant's guilt beyond a reasonable doubt. States have great flexibility, so long as governmental powers are exercised in ways that conform to basic state and federal constitutional requirements. When boundary disputes arise over Congress' legislative power vis-a-vis the states, the U.S. Supreme Court can be asked to resolve the disagreement.
The U.S. Constitution grants specific legislative powers to the federal
government in Article I, section 8 of the Constitution and in the
13th, 14th, 15th, 23rd, 24th, and 26th Amendments, which provide that
"The Congress shall have power to enforce this article by appropriate
legislation." But
in some areas, Congress' lawmaking power is implied rather than expressed,
and is based on interpretations of the commerce clause. |
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The Commerce Clause
From 1900 until 1937, the U.S. Supreme Court often severely limited
the scope of the commerce clause. The Court rejected Congress's claim
that Article 1 permitted the federal government to address problems which
directly or indirectly had an impact on interstate commerce, and it
narrowly defined interstate commerce when Congress sought to regulate mining,
protect workers' rights to join labor unions, and reform the use of child
labor. The Supreme Court in 1937, however, began a practice of deferring
to Congress in cases where a rational connection existed between the legislation
and commerce. Two clauses found in Article I, Section 8, the necessary and
proper clause and the commerce clause, have often been used by the Court
to justify extensions of federal authority. In the following passage from
a famous early case, McCulloch v. Maryland, Chief Justice John Marshall
explained why a broad interpretation should be given to the necessary and
proper clause.
The Congress's constitutional right to rely on the commerce clause
as its justification for enacting a law making it a federal crime
for a person to possess a firearm in a school zone was challenged in
the following case, United States v. Lopez. Please refer to the
Gun-Free School Zones Act of 1990 (Figure 1-1) before reading
the case. Chief Justice Rehnquist, the author of the majority opinion,
traces the interesting and occasionally controversial history of the commerce
clause and concludes that Congress did not have Constitutional authority
to enact the statute. Following the majority opinion authored by Chief
Justice Rehnquist, Justice Breyer wrote a dissenting opinion, which was
joined by three other justices. In his dissent, Breyer explains why he
disagrees with the majority's opinion in Lopez. |
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Gun-Free School
Zones Act of 1990 18 U.S.C. 922 (q)
(A) crime, particularly crime involving drugs and guns,
is a pervasive, nationwide problem; (B)
crime at the local level is exacerbated by the interstate movement of
drugs, guns, and criminal gangs; (C)
firearms and ammunition move easily in interstate commerce and have been
found in increasing numbers in and around schools, as documented in
numerous hearings in both the Judiciary Committee of the House of Representatives
and Judiciary Committee of the Senate; (D)
in fact, even before the sale of a firearm, the gun, its component parts,
ammunition, and the raw materials from which they are made have considerably
moved in interstate commerce; (E)
while criminals freely move from State to State, ordinary citizens and
foreign visitors may fear to travel to or through certain parts of the
country due to concern about violent crime and gun violence, and parents
may decline to send their children to school for the same reason; (F)
the occurrence of violent crime in school zones has resulted in a decline
in the quality of education in our country; (G)
this decline in the quality of education has an adverse
impact on interstate commerce and the foreign commerce of the United
States; (H)
States, localities, and school systems find it almost impossible to handle
gun-related crime by themselves; even States, localities, and school
systems that have made strong efforts to prevent, detect, and punish
gun-related crime find their efforts unavailing due in part to the failure
or inability of other States or localities to take strong measures;
and
(I) Congress has power, under the interstate commerce
clause and other provisions of the Constitution, to enact measures
to ensure the integrity and safety of the Nation's schools by enactment
of this subsection. (2)(A)
It shall be unlawful for any individual knowingly to possess a firearm
at a place that the individual knows, or has reasonable cause to believe,
is a school zone.
(B) Subparagraph (A) shall not apply to the possession
of a firearm. (3)(A)
Except as provided in subparagraph (B), it shall be unlawful for any
person, knowingly or with reckless disregard for the safety of another,
to discharge or attempt to discharge a firearm at a place that the
person knows is a school zone.
(B) Subparagraph (A) shall not apply to the discharge
of a firearm
(i) on
private property not part of school grounds;
(ii) as part of a
program approved by a school in the school zone, by an individual
who is participating in the program;
(iii) by an individual
in accordance with a contract entered into between a school in a
school zone and the individual or an employer of the individual; or
(iv) by a law
enforcement officer acting in his or her official capacity. (4) Nothing
in this subsection shall be construed as preempting or preventing
a State or local government from enacting a statute establishing gun-free
school zones as provided in this subsection. |
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Commentary
on Reading and Understanding the Lopez Case
The next item in the heading is the case number. Every case has a unique
identifying number, in this instance 93-1260 which is assigned by the
Clerk of the Supreme Court. Cases can be located either by case number
or by the volume number, case reporter series, and page number where
the case is published in printed form. The Lopez case is reported
in volume 514 of the U.S. Reports, on page 549 (this citation is written
514 U.S. 549). The name of the court that decided the dispute is next
in the heading (in this instance the U.S. Supreme Court), followed
by the date the decision was announced. The first item in the body of
the court opinion is the name of the judge or justice who wrote the court
opinion. Usually only one judge is selected to write the majority opinion,
even though several judges may have participated in reaching the decision.
In Lopez, the United States charged the defendant with carrying
a concealed .38 caliber handgun and five bullets into the Edison High
School in San Antonio, Texas on March 10, 1992, an alleged violation
of the federal statute that was enacted in 1990 as the Gun-Free School
Zones Act. This statute was published in Title 18 of the United States
Code in Section 922(q) (1)(A), which is excerpted in Figure 1-1. A federal
grand jury reviewed evidence presented to it by a federal prosecutor and
indicted Lopez on one count of violating the statute. The defense
attorney moved to dismiss the indictment, arguing that the law was unconstitutional
because it punished conduct that was beyond the scope of Congress' legislative
power under Article I, Section 8, Clause 3 of the U.S. Constitution. The
trial court (called the U.S. District Court) denied the motion. Lopez waived
his right to a jury trial (under the 6th and 14th Amendments), and the district
court tried the case without a jury (this is called a bench trial). The
district court found the defendant guilty as charged and sentenced him
to six months imprisonment followed by supervised release. Lopez appealed
his conviction to the U.S. Court of Appeals for the Fifth Circuit, which
reversed the district court. The Fifth Circuit concluded that Congress did
not have constitutional authority under the Commerce Clause to enact the
Gun-Free School Zones Act. The Supreme Court granted the government's petition
for a writ of certiorari and agreed to review the Fifth Circuit's decision
regarding Congress' legislative authority in this case. As a matter of
law, a duly enacted statute, such as the Gun-Free School Zones Act, is presumed
to be constitutional and Alfonso Lopez had the burden of proving that Congress
had exceeded its constitutional authority. Although the federal courts
have the power to declare Congressional acts unconstitutional, it is a
power that is rarely exercised.
The issue before the Supreme Court was "Does Congress have constitutional
authority under the Commerce Clause to enact a statute that prohibits
the possession of a gun within a school zone?"
In order to reap the benefits of the case study method, students must
carefully read each case and concentrate on the details. After reading
a case, a student needs to have a precise understanding of what the
court did. It is not enough for a student to have a general sense of
what the case says. It is important to figure out the holding
of the case--what the court decided on the facts of the case. Opinions
are often discursive. Judges often discuss issues they need not decide.
Their statements on these issues are labeled dicta. Although these
statements may be important, they lack the authority of the case's holding. |
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Chief Justice Rehnquist
delivered the opinion of the Court.
In the Gun-Free School Zones Act of 1990, Congress made it a federal
offense "for any individual knowingly to possess a firearm at a place
that the individual knows, or has reasonable cause to believe, is
a school zone." ...The Act neither regulates a commercial activity nor
contains a requirement that the possession be connected in any way to
interstate commerce. We hold that the Act exceeds the authority of Congress
"[t]o regulate Commerce ... among the several States...." U.S. Const.,
1, 8, cl. 3. On
March 10, 1992, respondent, who was then a 12th-grade student, arrived
at Edison High School in San Antonio, Texas, carrying a .38 caliber
handgun and five bullets. Acting on a tip, school authorities confronted
respondent, who admitted that he was carrying the weapon. He was
arrested and charged under Texas law with firearm possession on school premises....
The next day, the state charges were dismissed after federal agents charged
respondent by complaint with violating the Gun-Free School Zones Act of
1990....
A federal grand jury indicted respondent on one count of knowing possession
of a firearm at a school zone, in violation of 922(q). Respondent moved
to dismiss his federal indictment on the ground that 922(q) "is unconstitutional
as it is beyond the power of Congress to legislate control over our public
schools." The District Court denied the motion, concluding that 922(q)
"is a constitutional exercise of Congress' well-defined power to regulate
activities in and affecting commerce, and the 'business' of elementary,
middle and high schools... affects interstate commerce...." Respondent waived
his right to a jury trial. The District Court conducted a bench trial, found
him guilty of violating 922(q), and sentenced him to six months' imprisonment
and two years' supervised release.
On appeal respondent challenged his conviction based on his claim that
922(q) exceeded Congress' power to legislate under the Commerce Clause.
The Court of Appeals for the Fifth Circuit agreed and reversed respondent's
conviction. It held that, in light of what it characterized as insufficient
congressional findings and legislative history, "section 922(q), in
the full reach of its terms, is invalid as beyond the power of Congress
under the Commerce Clause." ... Because of the importance of the issue,
we granted certiorari... and we now affirm.
We start with first principles. The Constitution creates a Federal
Government of enumerated powers. See U.S. Const., Art. 1, 8. As James
Madison wrote, "[t]he powers delegated by the proposed Constitution
to the federal government are few and defined. Those which are to remain
in the State governments are numerous and indefinite." ... This constitutionally
mandated division of authority "was adopted by the Framers to ensure protection
of our fundamental liberties." ... "Just as the separation and independence
of the coordinate branches of the Federal Government serves to prevent
the accumulation of excessive power in any one branch, a healthy balance
of power between the States and the Federal Government will reduce the
risk of tyranny and abuse from either front." ...
The Constitution delegates to Congress the power "[t]o regulate Commerce
with foreign Nations, and among the several States, and with the Indian
Tribes." U.S. Const., Art. 1, 8, cl. 3. The Court, through Chief justice
Marshall, first defined the nature of Congress' commerce power in
Gibbons v. Ogden... (1824): "Commerce, undoubtedly, is traffic,
but it is something more: it describes the commercial intercourse
between nations, and parts of nations, in all its branches, and is regulated
by prescribing rules for carrying on that intercourse.”
The commerce power "is the power to regulate; that is, to prescribe
the rule by which commerce is to be governed. This power, like all others
vested in Congress, is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations, other than are prescribed
in the constitution." The Gibbons Court, however, acknowledged
that limitations on the commerce power are inherent in the very language
of the Commerce Clause. "It
is not intended to say that these words comprehend that commerce, which
is completely internal, which is carried on between man and man in a State,
or between different parts of the same State, and which does not extend
to or affect other States. Such a power would be inconvenient, and is certainly
unnecessary." "Comprehensive
as the word 'among' is, it may very properly be restricted to that
commerce which concerns more States than one.... The enumeration presupposes
something not enumerated and that something, if we regard language
or the subject of the sentence, must be the exclusively internal commerce
of a State." ...
For nearly a century thereafter, the Commerce Clause decisions dealt
but rarely with the extent of Congress' power, and almost entirely with
the Commerce Clause as a limit on state legislation that discriminated
against interstate commerce.... In 1887, Congress enacted the Interstate
Commerce Act... and in 1890, Congress enacted the Sherman Antitrust Act...
These laws ushered in a new era of federal regulation under the commerce
power. When cases involving these laws first reached this Court, we imported
from our negative Commerce Clause cases the approach that Congress could
not regulate activities such as "production," "manufacturing," and "mining."
... Simultaneously, however, the Court held that, where the interstate
and intrastate aspects of commerce were so mingled together that full
regulation of interstate commerce required incidental regulation of intrastate
commerce, the Commerce Clause authorized such regulation....
In A. L. A. Schecter Poultry Corp. v. United States ... (1935),
the Court struck down regulations that fixed the hours and wages of
individuals employed by an intrastate business because the activity being
regulated related to interstate commerce only indirectly. In doing so,
the Court characterized the distinction between direct and indirect
effects of intrastate transactions upon interstate commerce as "a fundamental
one, essential to the maintenance of our constitutional system...." Activities
that affected interstate commerce directly were within Congress' power;
activities that affected interstate commerce indirectly were beyond Congress'
reach.... The justification for this formal distinction was rooted in
the fear that otherwise "there would be virtually no limit to the federal
power and for all practical purposes we should have a completely centralized
government." ...
Two years later, in the watershed case of NLRB v. Jones & Laughlin
Steel Corp.... (1937), the Court upheld the National Labor Relations
Act against a Commerce Clause challenge, and in the process, departed
from the distinction between "direct" and "indirect" effects on interstate
commerce.... ("The question [of the scope of Congress' power] is necessarily
one of degree"). The Court held that intrastate activities that "have
such a close and substantial relation to interstate commerce that their
control is essential or appropriate to protect that commerce from burdens
and obstructions" are within Congress' power to regulate....
In Wickard v. Filburn, the Court upheld the application of amendments
to the Agricultural Adjustment Act of 1938 to the production and consumption
of home-grown wheat.... The Wickard Court explicitly rejected
earlier distinctions between direct and indirect effects on interstate
commerce, stating: "[E]ven if appellee's activity be local and though
it may not be regarded as commerce, it may still, whatever its nature,
be reached by Congress if it exerts a substantial economic effect on
interstate commerce, and this irrespective of whether such effect is
what might at some earlier time have been defined as 'direct' or 'indirect."'...
The Wickard Court emphasized that although Filburn's own contribution
to the demand for wheat may have been trivial by itself, that was
not "enough to remove him from the scope of federal regulation where,
as here, his contribution, taken together with that of many others similarly
situated, is far from trivial...."
Jones & Laughlin Steel... and Wickard ushered
in an era of Commerce Clause jurisprudence that greatly expanded the
previously defined authority of Congress under that Clause. In part,
this was a recognition of the great changes that had occurred in the
way business was carried on in this country. Enterprises that had once
been local or at most regional in nature had become national in scope.
But the doctrinal change also reflected a view that earlier Commerce Clause
cases artificially had constrained the authority of Congress to regulate
interstate commerce.
But even these modern-era precedents which have expanded congressional
power under the Commerce Clause confirm that this power is subject
to outer limits. In Jones & Laughlin Steel, the Court warned
that the scope of the interstate commerce power "must be considered in
the light of our dual system of government and may not be extended so
as to embrace effects upon interstate commerce so indirect and remote
that to embrace them" in view of our complex society, would effectually
obliterate the distinction between what is national and what is local
and create a completely centralized government.... Since that time, the
Court has heeded that warning and undertaken to decide whether a rational
basis existed for concluding that a regulated activity sufficiently affected
interstate commerce....
Consistent with this structure, we have identified three broad categories
of activity that Congress may regulate under its commerce power...
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....
Within this final category, admittedly, our case law has not been clear
whether an activity must "affect" or "substantially affect" interstate
commerce in order to be within Congress' power to regulate it under
the Commerce Clause.... We conclude, consistent with the great weight
of our case law, that the proper test requires an analysis of whether
the regulated activity "substantially affects" interstate commerce.
We now turn to consider the power of Congress, in the light of this
framework, to enact 922(q). The first two categories of authority may
be quickly disposed of 922(q) 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 can
922(q) be justified as a regulation by which Congress has sought to protect
an instrumentality of interstate commerce or a thing in interstate commerce.
Thus, if 922(q) is to be sustained, it must be under the third category
as a regulation of an activity that substantially affects interstate commerce.
First, we have upheld a wide variety of congressional Acts regulating
intrastate economic activity where we have concluded that the activity
substantially affected interstate commerce. Examples include the
regulation of intrastate coal mining; ... intrastate extortionate
credit transactions ... restaurants utilizing substantial interstate
supplies ... inns and hotels catering to interstate guests ... and production
and consumption of home-grown wheat, Wickard v. Filburn (1942).
These examples are by no means exhaustive, but the pattern is clear.
Where economic activity substantially affects interstate commerce, legislation
regulating that activity will be sustained.
Section 922(q) is a criminal statute that by its terms has nothing
to do with commerce or any sort of economic enterprise, however broadly
one might define those terms. Section 922(q) is not an essential part
of a larger regulation of economic activity, in which the regulatory scheme
could be undercut unless the intrastate activity were regulated. It cannot,
therefore, be sustained under our cases upholding regulations of activities
that arise out of or are connected with a commercial transaction, which
viewed in the aggregate, substantially affects inter-state commerce. Second,
922(q) contains no jurisdictional element which would ensure, through case-by-case
inquiry, that the firearm possession in question affects interstate commerce....
Although as part of our independent evaluation of constitutionality
under the Commerce Clause we of course consider legislative findings,
and indeed even congressional committee findings, regarding effect on
interstate commerce ... the Government concedes that "[n]either the statute
nor its legislative history contain[s] express congressional findings
regarding the effects upon interstate commerce of gun possession in a
school zone."... We agree with the Government that Congress normally is
not required to make formal findings as to the substantial burdens that
an activity has on interstate commerce.... But to the extent that congressional
findings would enable us to evaluate the legislative judgment that the
activity in question substantially affected interstate commerce, even though
no such substantial effect was visible to the naked eye, they are lacking
here....
The Government's essential contention ... is that we may determine here
that 922(q) is valid because possession of a firearm in a local school
zone does indeed substantially affect interstate commerce.... The Government
argues that possession of a firearm in a school zone may result in violent
crime and that violent crime can be expected to affect the functioning
of the national economy in two ways.
First, the costs of violent crime are substantial, and, through the
mechanism of insurance, those costs are spread throughout the population....
Second, violent crime reduces the willingness of individuals to travel
to areas within the country that are perceived to be unsafe.... The Government
also argues that the presence of guns in schools poses a substantial
threat to the educational process by threatening the learning environment.
A handicapped educational process, in turn, will result in a less productive
citizenry. That, in turn, would have an adverse effect on the Nation's
economic well-being. As a result, the Government argues that Congress
could rationally have concluded that 922(q) substantially affects interstate
commerce.
We pause to consider the implications of the Government's arguments.
The Government admits, under its "costs of crime" reasoning, that
Congress could regulate not only all violent crime, but all activities
that might lead to violent crime, regardless of how tenuously they
relate to inter-state commerce.... Similarly, under the Government's
"national productivity" reasoning, Congress could regulate any activity
that it found was related to the economic productivity of individual
citizens: family law (including marriage, divorce, and child custody),
for example. Under the theories that the Government presents in support
of 922(q), it is difficult to perceive any limitation on federal power,
even in areas such as criminal law enforcement or education where States
historically have been sovereign. Thus, if we were to accept the Government's
arguments, we are hard-pressed to posit any activity by an individual
that Congress is without power to regulate....
Justice Breyer focuses ... on the threat that firearm possession in
and near schools poses to the educational process and the potential economic
consequences flowing from that threat.... Specifically, the dissent
reasons that (1) gun-related violence is a serious problem; (2) that
problem, in turn, has an adverse effect on classroom learning; and (3)
that adverse effect on classroom learning, in turn, represents a substantial
threat to trade and commerce.... This analysis would be equally applicable,
if not more so, to subjects such as family law and direct regulation of
education.
For instance if Congress can, pursuant to its Commerce Clause power,
regulate activities that adversely affect the learning environment,
then ... it also can regulate the educational process directly. Congress
could determine that a school's curriculum has a "significant" effect
on the extent of classroom learning. As a result, Congress could mandate
a federal curriculum for local elementary and secondary schools because
what it taught in local schools has a significant "effect on classroom
learning," ...and that, in turn, has a substantial effect interstate commerce.
Justice Breyer rejects our reading of precedent and argues that "Congress
... could rationally conclude that schools fall on the commercial
side of the line...." Again, Justice Bryer's rationale lacks any real
limits because, depending on the level of generality, any activity
can be looked upon as commercial. Under the dissent's rationale, Congress
could just as easily look at child rearing as "fall[ing] on the commercial
side of the line" because it provides a "valuable service, namely, to
equip [children] with the skills they need to survive in life and, more
specifically, in the workplace." We do not doubt that Congress has authority
under the Commerce Clause to regulate numerous commercial activities that
substantially affect interstate commerce and also affect the educational
process. That authority, though broad, does not include the authority
to regulate each and every aspect of local schools.
Admittedly, a determination whether an 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 always will engender "legal uncertainty."
As Chief justice Marshall stated in McCulloch v. Maryland ...
(1819): "The [federal] government is acknowledged by all to be one of
enumerated powers. The principle, that it can exercise only the powers
granted to it ... is now universally admitted. But the question respecting
the extent of the powers actually granted, is perpetually arising, and
will probably continue to arise, as long as our system shall exist." The
Constitution mandates this uncertainty by withholding from Congress a
plenary police power that would authorize enactment of every type of legislation....
Congress has operated within this framework of legal uncertainty ever
since this Court determined that it was the judiciary's duty "to say what
the law is." Marbury v. Madison ... (1803) ... Any possible
benefit from eliminating this "legal uncertainty" would be at the expense
of the Constitution's system of enumerated powers.
In Jones & Laughlin Steel ... we held that the question
of congressional power under the Commerce Clause "is necessarily
one of degree." These are not precise formulations, and in the nature
of things they cannot be. But we think they point the way to a correct
decision of this case. The possession of a gun in a local school zone
is in no sense an economic activity that might, through repetition elsewhere,
substantially affect any sort of interstate commerce. Respondent was
a local student at a local school; there is no indication that he had
recently moved in interstate commerce, and there is no requirement that
his possession of the firearm have any concrete tie to interstate commerce.
To uphold the Government's contentions here, we would have to pile
inference upon inference in a manner that would... convert congressional
authority under the Commerce Clause to a general police power of
the sort retained by the States. Admittedly, some of our prior cases
have taken long steps down that road, giving great deference to congressional
action.... The broad language in these opinions has suggested the possibility
of additional expansion, but we decline here to proceed any further.
To do so would require us to conclude that the Constitution's enumeration
of powers does not presuppose something not enumerated ... and that there
never will be a distinction between what is truly national and what is
truly local ... This we are unwilling to do.
For the foregoing reasons the judgment of the Court of Appeals is Affirmed.
I
In reaching
this conclusion, I apply three basic principles of Commerce Clause
interpretation. First, the power to "regulate Commerce ... among the
several States," U.S. Const., Art. I, § 8, cl. 3, encompasses the
power to regulate local activities insofar as they significantly affect
interstate commerce. See, e.g., Gibbons v. Ogden, 22 U.S. 1, 9
Wheat. 1, 194-195, 6 L. Ed. 23 (1824) (Marshall, C. J.); Wickard v.
Filburn, 317 U.S. 111, 125, 87 L. Ed. 122, 63 S. Ct. 82 (1942). As
the majority points out, ante, at 559, the Court, in describing
how much of an effect the Clause requires, sometimes has used the word
"substantial" and sometimes has not. Compare, e.g., Wickard, supra,
at 125 ("substantial economic effect"), with Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U.S. 264, 276, 69 L. Ed.
2d 1, 101 S. Ct. 2352 (1981) ("affects interstate commerce"); see also
Maryland v. Wirtz, 392 U.S. 183, 196, n. 27, 20 L. Ed. 2d
1020, 88 S. Ct. 2017 (1968) (cumulative effect must not be "trivial");
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 81
L. Ed. 893, 57 S. Ct. 615 (1937) (speaking of "close and substantial
relation" between activity and commerce, not of "substantial
effect") (emphasis added); Gibbons, supra, at 194 (words of Commerce
Clause do not "comprehend ... commerce, which is completely internal ...
and which does not ... affect other States"). And, as the majority also
recognizes in quoting Justice Cardozo, the question of degree (how much
effect) requires an estimate of the "size" of the effect that no verbal
formulation can capture with precision. See ante, at 567. I use the
word "significant" because the word "substantial" implies a somewhat narrower
power than recent precedent suggests. See, e.g., Perez v. United States,
402 U.S. 146, 154, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971); Daniel v.
Paul, 395 U.S. 298, 308, 23 L. Ed. 2d 318, 89 S. Ct. 1697 (1969). But
to speak of "substantial effect" rather than "significant effect" would
make no difference in this case.
II
Applying
these principles to the case at hand, we must ask whether Congress could
have had a rational basis for finding a significant (or substantial)
connection between gun-related school violence and interstate commerce.
Or, to put the question in the language of the explicit finding
that Congress made when it amended this law in 1994: Could Congress rationally
have found that "violent crime in school zones," through its effect
on the "quality of education," significantly (or substantially) affects
"interstate" or "foreign commerce"? 18 U.S.C. §§ 922(q)(1)(F),
(G). As long as one views the commerce connection, not as a "technical
legal conception," but as "a practical one," Swift & Co. v. United
States, 196 U.S. 375, 398, 49 L. Ed. 518, 25 S. Ct. 276 (1905) (Holmes,
J.), the answer to this question must be yes. Numerous reports and studies--generated
both inside and outside government--make clear that Congress could reasonably
have found the empirical connection that its law, implicitly or explicitly,
asserts. (See Appendix, infra, at 631, for a sample of the documentation,
as well as for complete citations to the sources referenced below.)
III
The majority's
holding--that § 922 falls outside the scope of the Commerce Clause--creates
three serious legal problems. First, the majority's holding runs contrary
to modern Supreme Court cases that have upheld congressional actions
despite connections to interstate or foreign commerce that are less
significant than the effect of school violence. In Perez v. United
States, supra, the Court held that the Commerce Clause authorized
a federal statute that makes it a crime to engage in loan sharking ("extortionate
credit transactions") at a local level. The Court said that Congress
may judge that such transactions, "though purely intrastate
... affect interstate commerce." 402 U.S. at 154 (emphasis
added). Presumably, Congress reasoned that threatening or using force,
say with a gun on a street corner, to collect a debt occurs sufficiently
often so that the activity (by helping organized crime) affects commerce
among the States. But, why then cannot Congress also reason that the threat
or use of force--the frequent consequence of possessing a gun--in or near
a school occurs sufficiently often so that such activity (by inhibiting
basic education) affects commerce among the States? The negative impact
upon the national economy of an inability to teach basic skills seems
no smaller (nor less significant) than that of organized crime. Moreover, the majority's
test is not consistent with what the Court saw as the point of the
cases that the majority now characterizes. Although the majority today
attempts to categorize Perez, McClung, and Wickard as involving
intrastate "economic activity," ante, at 559, the Courts that
decided each of those cases did not focus upon the economic nature
of the activity regulated. Rather, they focused upon whether that
activity affected interstate or foreign commerce. In fact,
the Wickard Court expressly held that Filburn's consumption
of homegrown wheat, "though it may not be regarded as commerce,"
could nevertheless be regulated--"whatever its nature"--so long
as "it exerts a substantial economic effect on interstate commerce."
Wickard, supra, at 125 (emphasis added).
IV
In sum, to
find this legislation within the scope of the Commerce Clause would
permit "Congress ... to act in terms of economic ... realities."
North American Co. v. SEC, 327 U.S. at 705 (citing Swift &
Co. v. United States, 196 U.S. at 398 (Holmes, J.)). It would interpret
the Clause as this Court has traditionally interpreted it, with the exception
of one wrong turn subsequently corrected. See Gibbons v. Ogden,
9 Wheat., at 195 (holding that the commerce power extends "to all the
external concerns of the nation, and to those internal concerns which
affect the States generally"); United States v. Darby, 312 U.S. at
116-117 ("The conclusion is inescapable that Hammer v. Dagenhart [the
child labor case] was a departure from the principles which have prevailed
in the interpretation of the Commerce Clause both before and since the decision
.... It should be and now is overruled"). Upholding this legislation would
do no more than simply recognize that Congress had a "rational basis" for
finding a significant connection between guns in or near schools and (through
their effect on education) the interstate and foreign commerce they threaten.
For these reasons, I would reverse the judgment of the Court of Appeals.
Respectfully, I dissent. |
|
Many students find it helpful to brief the cases they read because
briefing requires careful reading and analysis of the decision and
increases understanding of the material.
The following brief of the Lopez case illustrates one way of
briefing. The elements in the example are usually found in most briefs,
though writing style is often a matter of individual preference. It is
usually desirable to keep copying from the text of the case to a minimum;
briefs are not exercises in stenography. This brief was written to help
students who have not previously read a case report. It is intended to
help these students understand what is important in the material they have
read. Sample
Brief Parties: Petitioner
(Appellant below) United States Respondent (Appellee
below) Alfonso Lopez, Jr.
The United States charged Lopez with carrying a concealed .38 caliber
handgun and five bullets into the Edison High School in San Antonio,
Texas on March 10, 1992, an alleged violation of the federal statute
that was enacted in 1990 as the Gun-Free School Zones Act.
The evidence in the case was presented before a federal grand jury
which indicted Lopez on one count of violating the statute. The defense
attorney moved to dismiss the indictment, arguing that the law was unconstitutional
because it punished conduct that was beyond the scope of Congress'
legislative power under Article I, Section 8, Clause 3 of the U.S.
Constitution. The U.S. District Court denied the motion. Lopez received
a bench trial and was found guilty as charged and sentenced to six months
imprisonment followed by supervised release. Lopez appealed his conviction
to the U.S. Court of Appeals for the Fifth Circuit. A panel of the Fifth
Circuit initially reversed the district court but after en banc review,
affirmed the district court. The Fifth Circuit concluded that Congress
did not have constitutional authority under the Commerce Clause to enact
the Gun-Free School Zones Act. The Supreme Court granted the government's
petition for a writ of certiorari and agreed to review the Fifth
Circuit's decision regarding Congress' legislative authority in this case. Arguments or Objectives
of the Parties:
The government argued that Congress had developed "institutional expertise"
when it came to regulating interstate commerce and that the judiciary
should defer to the legislative body's judgment. The "costs of violent
crime" also had an impact on interstate commerce, according to the government,
because people who are afraid of violent crime will not do business in
places that are reputed to be dangerous. The government's third argument
was that the presence of guns in school zones would hinder the educational
process and thereby negatively impact our "national economic productivity." Disposition or
Order by the Court: The
U.S. Supreme Court affirmed the decision of the Fifth Circuit U.S.
Court of Appeals. Holding/Rule of
Law: Criminalizing
the possession of a firearm within a school zone is beyond the scope
of Congress' legislative power under the Commerce Clause. Rationale: 1.
The statute does not fit within any of the three recognized categories where
Congress has authority to regulate under the Commerce Clause:
a. it does not regulate the channels of interstate commerce
or "prohibit the transportation of a commodity through interstate commerce."
1. it does not protect any instrumentality
of interstate commerce (mail, electronic communication, trucks, trains,
planes etc.)
2. it does not regulate an
activity that has a substantial affect on interstate commerce.
3. Congress did not require that the firearm(s)
illegally possessed have some connection to interstate commerce.
4. Congress did not "expressly" establish how,
in its opinion, gun possession in a school zone adversely affected interstate
commerce.
5. The government's arguments fail because they
could be used to create a functional federal "police power" which is incompatible
with the Constitution's mandate that the federal government be a
limited government with enumerated powers. |
|
The State Governments and the Police Power The discussion
expands on the discussion of the Federalism and the police power found
on page 13 of the textbook. The states as sovereigns, have broad powers to protect the public and retain all governmental powers that were never delegated to the federal government in the U.S. Constitution. The authority that resides in every sovereign to pass laws for its internal regulation and government is called the police power. The basis of the police power is the state's obligation to protect the public health, safety, welfare, and morals. We will see in the next case how reviewing courts determine whether a state has legal authority under the police power to require the wearing of seatbelts in automobiles. Back to Top |
Per Curiam: At the outset we note that, in reviewing the constitutionality of Illinois' mandatory-seatbelt law, this court does not join in the debate over whether the law is desirable or necessary. Our nation was founded in large part on the principle that the powers of government are to be exercised by the people through their elected representatives in the legislature, subject only to certain constitutional limitations. Although this court has never hesitated to invalidate laws that it believes to be unconstitutional, we emphasize that our role is a limited one. The issue here is not what the legislature should do but what the legislature can do." ... Defendants... argue that the section does not further the health, safety or welfare of the general public, asserting that the statute only protects the safety of the individual driver and passenger. They contend that since the section interferes with their right to decide whether to not to wear a safety belt, and has no corresponding public benefit, the statute exceeds the State's police power and violates the due process guarantees of the State and Federal constitutions. It is well established that the legislatures, not the courts, have the primary role in our democratic society in deciding what the interests of the public require and in selecting the measures necessary to secure those interests.... Recognizing the legislature's broad power to provide for the public health, welfare and safety, the courts are hesitant to second-guess a legislative determination that a law is desirable or necessary. Only when statute in question affects a fundamental constitutional right will the courts subject the legislation to strict or exacting scrutiny. In such cases, the State must have a "compelling" purpose for the law and show that its goals cannot be accomplished by less restrictive means. Few rights, however, have been identified as "fundamental," since only those rights "that lie at the heart of the relationship between the individual and a republican form of nationally integrated government" are deemed deserving of heightened judicial scrutiny.... Thus, in most cases involving substantive due process challenges to statutes, the courts give substantial deference to the legislative enactments. In the present case we ...have determined that the section here involved does not infringe upon the defendants' right of privacy.... As such, the State need not show a "compelling interest" for the law. It is sufficient that there is a rational basis for the statute. That is, the law will be upheld if it bears a rational relation to a legitimate legislative purpose and is neither arbitrary nor discriminatory. Under the rational-basis test, a statute is presumed to be valid, and the party challenging the statute has the burden of proving that the statute is irrational.... As long as there is a conceivable basis for finding a rational relationship, the law will be upheld.... In challenging the section as exceeding the scope of the State's police power, the defendants principally rely on the case of People v. Fries (1969)... In Fries the court held that a statute requiring the operator or passenger of a motorcycle to wear protective headgear was unconstitutional. The court reasoned that the purpose of the head-gear requirement was to "safeguard the person wearing it" and was unrelated to the safety of the public at large.... It concluded that the statute constituted a "regulation of what is essentially a matter of personal safety" and exceeded the scope of the State's police power. ...Here, too, defendants argue that the decision of whether or not to wear a safety belt is "essentially a matter of personal safety" and that any regulation restricting the individual's right to make such a decision exceeds the State' police power. The State, on the other hand, maintains that Fries was wrongly decided, and it urges us to overrule that decision. It correctly notes that at present Fries stands alone in holding that a motorcycle helmet law is unconstitutional. The overwhelming weight of authority is that motorcycle helmet laws are a valid exercise of the State's police power. Alternatively, the State contends that the statute being challenged here promotes valid public interests and thus is distinguishable from the motorcycle helmet law found to be unconstitutional. Defendants are correct in asserting that the primary goal of the section is to protect the individual driver and front seat passenger from death or serious injury. As such, the statute interferes with the individual's choice concerning his or her personal safety. However, arriving at those conclusions does not ... mean that the law is devoid of any public benefit and is unconstitutional. Regardless of a law's primary objective, it will be upheld if it bears a rational relation to a legitimate legislative purpose.... In that regard, the defendants have not persuaded us that the legislature could not have found that the law bears a rational relationship to a legitimate legislative purpose. The legislative debates clearly indicate that the legislators believed that safety belt use would protect persons other than the belt wearers by helping drivers to maintain control of their vehicles, and that the law would promote the economic welfare of the State by reducing the public and private costs associated with serious injuries and deaths caused by automobile accidents.... The State can enact laws aimed at reducing traffic accidents, since such laws are clearly related to the health, welfare and safety of the public. We also believe that the legislature could rationally conclude that unbelted drivers and passengers endanger the safety of others. In upholding a law similar to the one here under review, the court in People v. Weber (1985), 129 Misc.2d 993, 494 N.Y.S.2d 960, stated: A driver who is injured or who is jolted away from his vehicle's controls during a skid or by an initial impact, may well be less able to prevent or minimize injuries caused by an accident. Also, an unrestrained occupant of a vehicle may injure others inside or out of the vehicle during an accident. The preventing or reduction of such an injury seems to the Court to be a valid State interest.... It also is conceivable that drivers who wear safety belts are less likely to fall asleep at the wheel, or to lose control of their vehicles in situations where the driver must apply the brakes suddenly, or in cases where a vehicle begins to skid or swerve. Safety belts can also prevent passengers from being thrown against the driver. And, as the State observes, children and other occupants who are wearing safety belts are less likely to distract the driver.... Defendants argue that there is no statistical evidence showing that seatbelt use helps the driver to maintain control of his vehicle and avoid accidents with other motorists or pedestrians. Even assuming this argument is correct, it is without merit. "The fact that a congressional directive reflects unprovable assumptions about what is good for the people ... is not a sufficient reason to find that statute unconstitutional"... and a court "will not disturb a police regulation merely where there is room for a difference of opinion as to its wisdom, necessity and expediency...." Here, we think that the legislature could rationally determine that the seat belt use law would serve the public safety and welfare by reducing the likelihood that driver would lose control of his vehicle and jeopardize other motorists or pedestrians. Another reason advanced by the State for the section is that the law promotes the economic welfare of the State by reducing the public costs associated with serious injuries and deaths caused by automobile accidents. The legislative history of the section indicates that legislators were concerned about the financial costs associated with highway accidents. Representative Cullerton remarked that the safety belt legislation "would clearly save money," asserting that "it cost the State over 800,000 dollars for a 26 year old person who is made a paraplegic as a result of a car crash...." Governor Thompson, in explaining his reasons for signing the legislation, estimated that the seat belt law would "save more than 300 lives in Illinois in the first year, will avoid nearly 43,000 injuries and save more than $4 million in costs." ... It cannot be seriously questioned that the police power may be used to promote the economic welfare of the State, its communities and its citizens. "[I]n the interest of general welfare, the police power may be exercised to protect citizens and their businesses in financial and economic matters, [and] it may be exercised to protect the government itself against potential financial loss."... A law whose aim is to reduce the private and public costs resulting from injuries and deaths caused by motor vehicle accidents is therefore within the police power of the State. In finding that a motorcycle helmet law was rationally related to the public welfare, the court in Simon v. Sargent (D.Mass.1972), 346 F.Supp. 277, aff'd (1972), 409 U.S. 1020... stated: From the moment of the injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job, and, if the injury causes permanent disability, may assume the responsibility for his and his family's continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned. Defendants make several arguments concerning the effectiveness of safety belts in reducing injuries and arguments regarding the merits of alternative safety devices such as air bags. Defendants also contend that in some instances safety belts may cause injuries instead of preventing them. We need not consider these arguments, however, since they are proper subjects of discussion for the legislature, not the courts.... We believe that the General Assembly could reasonably assume that a law requiring drivers and front seat passengers to wear safety belts will reduce traffic related injuries and fatalities.... Therefore, we hold that section 12-603.1 does not violate the due process clauses of the State and Federal constitutions. To the extent that People v. Fries ...is inconsistent with our opinion, it is overruled....
For the reasons stated the judgments of the circuit courts of Marion,
Effingham, Fayette and Champaign counties ... are reversed, and said
causes are remanded to those respective courts for further proceedings. |
|
Dual Federal-State Jurisdictional Friction The following
discussion corresponds to Webnote B on page 16 of the Textbook. In some instances, the federal and state governments have overlapping jurisdiction and can produce tension between the federal and state levels of government. The constitutional implications of dual federal-state criminal jurisdiction was one of the concerns addressed by the U.S. Supreme Court in its decision in Lopez. The majority was concerned that further expansion of federal jurisdiction under the Commerce Clause could lead to a defacto federal police power which the majority feared could reduce federalism to a legal fiction.
Moohr, in The Federal Interest in Criminal Law (47 Syracuse
Law Review 1127 (1997), note 49.), says that where the overlap exists,
the U.S. Attorneys currently make the policy decision as to whether
a crime should be prosecuted at the federal level or reserved for
state action. Should federal prosecutors exercise this discretion
based on whether they are satisfied or dissatisfied with the corresponding
state's prosecution of a case or the sentence imposed by a state judge?
Moohr is concerned about the consequences of the expansion of federal
criminal jurisdiction. She points out that a shift in the balance
of responsibility for law enforcement at the state level away from the
states could undermine the federal form of government established in
the Constitution. The federal government's expanding role could significantly
impair the ability of each state to develop its own prosecutorial policies--a
traditional argument in favor of the federal form of government. (Ibid,
note 64) The expanding federal role could also trigger a process by which
states slowly yield their historic responsibility for determining public
policy with respect to criminal law to the federal government. She proposes
that a "pragmatic" analysis take place as to the nature and extent of the
federal and state's interests in criminal law enforcement. Where a federal
interest truly exists, federal legislation should be developed that carefully
addresses any existing enforcement gaps while trying to maximize and preserving
the states traditional role. Such gaps exist, she suggests whenever "the
states cannot or will not vindicate the federal interest." (Ibid,
p. 1187) |
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