Fed Up

by Jeffrey Rosen | May 22, 1995

It was a coincidence, of course, that exactly a week after the Oklahoma bombing, the Supreme Court struck down the Gun Free School Zones Act of 1990, holding that Congress had exceeded its enumerated powers for the first time since the New Deal. Nevertheless, some commentators are treating the two events as if they were portentously linked. In both cases, the argument goes, right-wing zealots (Timothy McVeigh, Chief Justice William Rehnquist) struck a mad blow at a federal government they perceive to be bloated, despotic and out of control.

In fact, the Lopez decision is good news for liberal constitutionalists. The mindless impulse to federalize crimes that the states are prosecuting perfectly well on their own has been, in recent years, more of a Republican than a Democratic vice. And as well as being constitutionally defensible, the Court's decision should slow the political momentum behind some of the more reckless proposals to expand federal powers over tort and criminal law in the 104th Congress.

If any law falls outside the limits of Congress's power to "regulate Commerce ... among the several States," the Gun Free School Zones Act is it. Passed in 1990 as part of Congress's biannual Elizabethan ritual of making new federal crimes out of activities that are already criminal under state law, the Act prohibits the possession of a gun within 1,000 feet of a school. Bringing a gun to school is already a crime in forty states; in fact, Alfonso Lopez, a twelfth grader in San Antonio, Texas, was initially charged under Texas law. The state charges were dropped the next day, however, when he was charged instead with violating the federal Gun Free School Zones Act. But possessing a gun is not a commercial activity; and any effects on commerce relate to the use of firearms, not to possession itself. Furthermore, there is no uniquely federal interest involved--except for the purely symbolic interest of congressional Democrats and Republicans in appearing simultaneously tough on crime and tenderhearted on children.

In his opinion striking down the law, Chief Justice Rehnquist properly rejected the Clinton administration's sweeping argument that Congress has the power to regulate any activity that has a hypothetical effect on commerce. Instead, Rehnquist concluded that "the proper test requires an analysis of whether the regulated activity substantially affects' interstate commerce." The only problem with this nebulous test is that it might be a license for the kind of broad judicial discretion conservatives are supposed to reject. The distinction between substantial and insubstantial effects on commerce can't be easily discerned by judges. And the Court runs the risk of creating a new cottage industry in federalism litigation, as it did in the Dolan property rights decision last year. Dolan, too, questioned the boundaries of the regulatory state without providing very clear guidance to judges about when the state must compensate property owners whose land is regulated.

Is there a less subjective alternative to these mushy judicial tests? The most radical approach comes from the chambers of Clarence Thomas, in a lone concurrence that no other justice was moved to acknowledge. Quoting eighteenth-century dictionaries, Thomas insists that "at the time the original Constitution was ratified, commerce' consisted of selling, buying and bartering, as well as transporting for these purposes." In a comically overconfident tone, combining self-congratulation with sneering attacks on all of his colleagues and predecessors, Thomas concludes that Congress should be prohibited from legislating outside a few narrow categories of enumerated powers. There are only two problems with Thomas's argument. The first is that it is lifted, almost word for word in places, from a 1987 article by Richard Epstein, "The Proper Scope of the Commerce Power," which Thomas mysteriously fails to cite. The second is that it would invalidate large portions of the federal government and the administrative state. Perhaps for this reason, Thomas concludes with a deadpan concession (also borrowed from Epstein) that because of "reliance interests," it may be "too late in the day" to "wipe the slate clean."

The main dissent, by Stephen Breyer, can hardly be criticized for concealing its sources. It includes an appendix of 167 scholarly reports and articles, from Robert Reich to Jonathan Kozol, that Breyer exhaustively canvasses to establish the proposition that "gun related violence is a commercial as well as a human problem," as long as commerce is viewed not as a "technical legal conception" but as a "practical one." There is a "direct economic link between basic education and industrial productivity," Breyer argues; and Congress could reasonably have concluded, based on empirical evidence, that "guns and education are incompatible."

There is a hint of Louis Brandeis in Breyer's dissent, which is one of the most impressive maiden opinions in recent years. But it is not, ultimately, entirely convincing. Breyer is writing as the consummate Senate staffer, collecting the empirical evidence to write the definitive committee report that Congress was too lazy to write on its own. And yet, after all of his labors, Breyer never quite answers Rehnquist's central objection. He is unable to identify a single law that Congress would be unable to pass under his vision of the commerce power, for he defines "commerce" so broadly that it would include any law that is hypothetically related to promoting the national economy. It would be easy enough, for example, to collect lots of empirical evidence suggesting that high divorce rates tend to interfere with national productivity. But does Breyer think that Congress has the power to pass a federal marriage law?

Breyer is right that the Lopez opinion "threatens legal uncertainty"; but uncertainty is the unavoidable consequence of judicially enforced limits on Congress's powers. The question is whether the Court has the will or the votes to go much further down this path. Its timid decision to duck the constitutional issue in a related case decided days after Lopez suggests little inclination to carry Rehnquist's vision of the commerce clause to its logical conclusion. One possibility is that the Lopez test will prove so amorphous that the Court will abandon the search for substantive limits on Congress's power, and will return instead to more procedural rules for protecting the interests of states. Anthony Kennedy and Sandra Day O'Connor suggest in their concurrence, for example, that Congress can legislate in areas traditionally left to the states, as long as it expresses its intentions clearly and goes through the motions of collecting factual findings to establish an empirical connection with commerce. As Glenn Reynolds of the University of Tennessee argues, Congress can satisfy most of O'Connor's and Kennedy's concerns in the future by including in every law a clear statement of the constitutional power on which it claims to rest.

The obvious losers in the wake of Lopez are statist conservatives, whose addiction to passing federal laws for purely symbolic purposes has now been called into question. Consider the flag burning law, which Rehnquist voted to uphold on First Amendment grounds, but which he would presumably have to strike down under the commerce clause as exceeding Congress's enumerated powers. The Drug Free Schools Act, which makes simple possession of drugs a federal crime, is now vulnerable to constitutional attack for precisely the same reason as the Gun Free School Zones Act. So is the cop killer bullets law, at least to the degree that it prohibits possession of bullets, rather than their manufacture and sale. Federal judges may be reluctant, in the end, to extend Lopez very far, for fear of provoking a dramatic reprise of 1937. But the real significance of the decision may be political, not legal: it could frighten the 104th Congress itself. The intellectual hypocrisy of the Contract with America has been its tendency, despite anti-Federalist rhetoric, to federalize areas of tort and criminal law that have traditionally been left to the states. Perhaps, in light of Lopez, conscientious Republicans and Democrats in the Senate will think twice before passing bills that have only the flimsiest relation to interstate commerce, such as the D'Amato Amendment, which would federalize all state crimes involving the use of a gun, or aspects of the products liability act, which would federalize state tort law.

We are, as Bruce Ackerman of Yale argues, on the threshold of a constitutional moment. If the Republican congressional victories in 1994 are followed by a Republican presidential victory in 1996, then the boundaries of the regulatory state could be constricted for the first time since the New Deal; and the Lopez decision could be a harbinger rather than a judicial aberration. But Republicans in Congress have not yet decided whether they are for the expansion of federal power, or against it. Rather than waiting for judges to save them from their centralizing instincts, perhaps they will remember the cautions of the Rehnquist Court, and exercise self-restraint.

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