Tackling the most important topics of law school, Part 9b: What does the Commerce Clause mean today?

September 26, 2013

Law School 101a

In the first part of this topic, we covered the history of the Commerce Clause.  In the second half of this week’s topic, we’ll be discussing how the Commerce Clause actually impacts the law today.

A brief overview of the clause’s history is necessary for this second part because there isn’t one particular case that defines Commerce Clause jurisprudence.  Supreme Court cases on this topic are rarely explicitly overruled, so the vast majority of these cases could be cited as binding precedent.

However, as discussed in yesterday’s installment, prior to 1995, the Supreme Court put virtually no limits on Commerce Clause powers.  Thus, current limitations on Congress’ authority under the clause are best understood by analyzing the line of precedent in the past 18 years that saw substantial limits being imposed on these powers.

1995’s U.S. v. Lopez

Lopez began as a challenge to the 1990 Gun-Free School Zones Act (GFSZA), which, among other things, criminalized the possession of a firearm in a school zone.

The Supreme Court invalidated the GFSZA.  In coming to this conclusion, the majority listed three “broad categories of activity that Congress may regulate under its commerce power.”  These categories are as follows:

  1. The “channels of interstate commerce;”
  2. “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;” and
  3. “those activities having a substantial relation to interstate commerce.”

The Court decided that the first two categories didn’t apply here, so it moved on to analyzing just the final one.  In its analysis, the Court laid out several factors that guided in its decision.

First, the Court asked whether the regulated activity was economic in nature.  A finding in the negative, as was the case in Lopez, supports a conclusion that the regulated products or activities do not have a “substantial relation to interstate commerce.”

Next, the Court asked whether the regulated products had moved in interstate commerce, which it also answered in the negative.

Third, the Court inquired into whether Congress had made findings on any effects of gun possession in a school zone on interstate commerce.  This is significant because the Court had never before asked Congress to provide findings on how its regulations impacted interstate commerce.

Finally, the Court looked at how attenuated the link between the regulated activity and interstate commerce.  In Lopez, the Court found that although there was indeed a link between guns and school and the economy (guns disrupt the learning environment, making education less effective, which in turn injures the economy at large), the Court also found that his link was far too strained to allow Commerce Clause authority.

2000’s U.S. v. Morrison

This ruling followed largely along the same lines as Lopez, but with some important distinctions that even further limited the scope of Congress’ Commerce Clause powers.

Morrison involved a challenge to a specific section of the Violence Against Women Act – one that allowed victims of gender-motivated violence a cause of action to sue their perpetrators in federal court.

The Court struck down this provision, claiming that Lopez was controlling.

However, the government, in its defense of the law, cited to 1942’s Wickard v. Fillburn, which was discussed in Part A of this topic as upholding federal regulations on farmers as to how much of a certain crop they could grow – even those crops grown solely for private consumption.

The Court’s reasoning in Wickard was that Congress could regulate individual economic activity that did not have a substantial effect on interstate commerce as long as this activity’s nationwide, aggregated impact did have a substantial effect.

Applied in Morrison, the government argued that while an individual gender crime may not have a substantial effect on interstate commerce, aggregated nationwide, there’s a very significant impact on interstate commerce.

It was actually quite a clever argument, but the Court had already made up its mind: the Commerce Clause does not authorize such a regulation.

Specifically, the Court held that the regulations at issue in Wickard were within the limits of the Commerce Clause because the regulated activity had a direct economic impact (agricultural crop quotas), whereas the regulated activity of VAWA (preventing gender-based violence) did not.

Thus, the point to take away from Morrison is that individual activity may be regulated under the Commerce Clause if that activity has a significant impact on interstate commerce in the aggregate, but the activity on the individual level must have a direct economic impact, as opposed to an indirect one.

2005’s Gonzales v. Raich

Raich is the aberration in the Court’s current view on Commerce Clause powers; as discussed in Part A, the ruling found Justices Kennedy and Scalia switching to join with the liberals in upholding the federal regulations at issue (criminal marijuana laws).

The majority held that Congress could regulate marijuana production and use – even that which is purely local in nature – since doing so is “essential” to regulating the national marijuana market.

Justice Scalia’s concurrence further delves into this idea:

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.

It’s important to note the difference the Court makes here between individual activities with a “substantial effect on interstate commerce” (like those activities described in Lopez and Morrison) and laws “enabling effective regulation of interstate commerce.”  The latter can be recognized as being part of a larger regulatory scheme, whereas the former is seemingly a regulatory end in and of itself.

2012’s National Federation of Independent Businesses v. Sebelius

Finally, we come to the Obamacare ruling.

No single opinion emerged on the Commerce Clause issue.  The four dissenting conservative justices (Scalia, Kennedy, Thomas, and Alito) refused to join with Chief Justice Roberts’ opinion on the matter, even though they were largely identical.

Assuming the issue were to come again before the Court, the takeaway from NFIB is that Congress may not regulate economic inactivity, as the individual mandate purportedly does (by “forcing” participation in interstate commerce).

And that’s as much of a nutshell in which the Commerce Clause will fit in less than 2,000 words.

If you have any additional questions, feel free to post them in the comments below!