Commerce Clause - Significance - The Rehnquist Court

The Rehnquist Court

The Rehnquist Court's Commerce Clause jurisprudence restored limits to the Interstate Commerce Clause that were removed in post-New Deal decisions, based primarily on concerns of federalism and Congress encroaching on the Several States' Police Powers. It upheld Congress's plenary authority to legislate in Indian affairs that was derived from the Worcester decision's interpretation of the Indian Commerce Clause, but modified Worcester by giving the several states some jurisdiction over Indian affairs beyond what had been granted to them by Congress. Another view is that the Court was compelled to define limits to address Congressional legislation which sought to use the Interstate Commerce Clause power in new and unprecedented ways. In United States v. Lopez, the Court confronted conviction of a 12th Grade student for carrying a concealed handgun into school in violation of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A). The Gun-Free School Zones Act made it a federal offense for any individual knowingly to possess a firearm at a place that individual knows or has reasonable cause to believe is a school zone. The legislation posed several challenging problems for Commerce Clause jurisprudence. Education is a traditionally local government activity, and while education undoubtedly has an economic aspect, the nexus between regulating gun violence and the Commerce Clause power to regulate interstate commerce seems particularly strained. In Wickard v. Filburn, the Court ruled Congress was exercising its Commerce Clause power to regulate local economic activity in ways that the States were powerless to regulate, because only the federal government could effectively control the national wheat supply. The Court reasoned that if Wickard could be applied to acts of gun violence, simply because crime negatively impacted education, Congress might conclude that crime in schools substantially affects commerce, and may be regulated. Under this logic, all police power could be nationalized and local police and criminal courts eliminated on the theory that all crime has an impact on commerce.

As the majority explained:

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 interstate commerce.

The opinion pointed out that prior decisions had 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's 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).

Thus the federal government did not have the power to regulate relatively unrelated things such as the possession of firearms near schools, as in Lopez. This was the first time in sixty years, since the conflict with President Roosevelt in 1936–37, that the Court had overturned a putative regulation on interstate commerce because it exceeded Congress's commerce power. Justice Clarence Thomas, in a separate concurring opinion, argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the entire nation.

The Lopez decision was clarified in United States v. Morrison, 529 U.S. 598 (2000), in which the Supreme Court invalidated § 40302 of the Violence Against Women Act ("VAWA"). The VAWA created civil liability for the commission of a gender-based violent crime, but without any jurisdictional requirement of a connection to Interstate Commerce or commercial activity. 42 U.S.C. § 13981(c). Once again, the Court was presented with a Congressional attempt to criminalize traditional local criminal conduct. As in Lopez, it could not be argued that State regulation alone would be ineffective to protect the aggregate impacts of local violence. The Court explained that in both Lopez and Morrison "the noneconomic, criminal nature of the conduct at issue was central to our decision." Furthermore, the Court pointed out that in neither case was there an " 'express jurisdictional element which might limit its reach (to those instances that) have an explicit connection with or effect on interstate commerce.' " Id. at 1751. In both cases, Congress criminalized activity that was not commercial in nature without including a jurisdictional element establishing the necessary connection between the criminalized activity and Interstate Commerce.

The Court found in Seminole Tribe v. Florida, 517 U.S. 44 (1996) that, unlike the Fourteenth Amendment, the Commerce Clause does not give the federal government the power to abrogate the sovereign immunity of the states.

Many described the Rehnquist Court's Commerce Clause cases as a doctrine of "New Federalism". The outer limits of that doctrine were delineated by Gonzales v. Raich, in which Justices Antonin Scalia and Anthony Kennedy departed from their previous positions as parts of the Lopez and Morrison majorities to uphold a federal law regarding marijuana. The Court found the federal law valid, although the marijuana in question had been grown and consumed within a single state, and had never entered Interstate Commerce. The court held Congress may regulate a non-economic good, which is intrastate, if it does so as part of a complete scheme of legislation designed to regulate Interstate Commerce.

During the Rehnquist court and to present, the Tenth Amendment to the Constitution has played an integral part in the Court's view of the Commerce Clause. The Tenth Amendment states that the federal government has only the powers specifically delegated to it by the Constitution while other powers are reserved to the states, or to the people. The Commerce Clause is an important source of those powers delegated to Congress, and therefore its interpretation is very important in determining the scope of federal power in controlling innumerable aspects of American life. The Commerce Clause has been the most widely interpreted clause in the Constitution, making way for many laws which, some argue, contradict the original intended meaning of the Constitution. Justice Clarence Thomas has gone so far as to state in his dissent to Gonzales,

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.

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