Today in 1995: The Supreme Court begins new era of curtailing Commerce Clause reach

April 26, 2013

Today in Legal HistoryTwo weeks ago marked the 77th anniversary of NLRB v. Jones & Laughlin Steel Corporation.

Jones marked the beginning of a new era in Supreme Court Commerce Clause jurisprudence, one that saw the high court sanctioning Congress’ invocation of the clause for the authority that had seemingly little to do with regulating “interstate commerce,” to which the powers granted to Congress by the clause are limited.

For example, in 1942, the Supreme Court upheld Congress’ power under the Commerce Clause to impose restrictions on how much of a certain crop they were allowed to grow, even for their own personal consumption; in 1964, the Supreme Court upheld Congress’ use of the Commerce Clause to impose desegregation policies on local business establishments; and in 1974, the Court endorsed Congress’ power to impose wage increase limits on employees of individual states.

This era ended in 1995 with the Supreme Court’s U.S. v. Lopez decision, which was handed down on April 26, 1995 – 18 years ago today.

The facts of the case start with Congress’ passage of the 1990 Gun-Free School Zones Act (GFSZA), which, among other things, criminalized the possession of a firearm in a school zone.

On March 10, 1992, Alfonso Lopez, then a 12th-grade student, carried a concealed .38-caliber handgun and five bullets into his high school.

On an anonymous tip, school officials confronted Lopez, who admitted to carrying the gun.  Specifically, Lopez stated that “Gilbert” had given him the gun so that he (Lopez) could deliver it after school to “Jason,” who planned to use it in a “gang war.” Lopez was to receive $40 for his services.

Although Lopez was initially charged under Texas state law with firearm possession on school premises, the charges were dropped after federal agents charged Lopez with violating the GFSZA.

Lopez challenged the Act as beyond the scope of Congress’ Commerce Clause powers

The district court denied the motion, finding that “the ‘business’ of elementary, middle and high schools … affects interstate commerce.”

The court of appeals, however, reversed, finding that the Commerce Clause does not give Congress the authority to regulate intrastate conduct that does not, in and of itself, affect interstate commerce:

“If Congress can thus bar firearms possession because of such a nexus to the grounds of any public or private school, and can do so without supportive findings or legislative history, on the theory that education affects commerce, then it could also similarly ban lead pencils, ‘sneakers,’ Game Boys [(ah, Game Boys)], or slide rules.”

After a lengthy exposition of the history of Commerce Clause jurisprudence, the Supreme Court agreed by a vote of five-to-four along ideological lines.

In finding the GFSZA unconstitutional, the majority looked at several factors.

First, the Court inquired into the nature of the activity being regulated: whether it was economic.

The Court noted that in all previous Commerce Clause rulings, the nature of the activity itself was economic; however, this was not the case with Lopez.

Next, the Court found that the Act had no requirement “that the firearm possession in question affects interstate commerce.”

The Court also noted that “neither the statute nor its legislative history contains express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.” 

Although “Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce,” the Court ruled that it must do so when “no such substantial effect was visible to the naked eye.”

Thus, the Court reversed Lopez’s conviction, struck down the GFSZA, and started a new line of Commerce Cause jurisprudence that saw ever-tightening restrictions on congressional power.

Interestingly, the provision of the GFSZA that Lopez was originally convicted under still survives today, albeit in a slightly modified form: the statute now requires that the firearm in question “has moved in or otherwise affects interstate commerce.”

Clearly, this insertion was intended to make the law compliant with Lopez.  However, it’s not entirely clear whether this revision would have insulated the law from invalidation by the Lopez Court, much less the current Supreme Court, which, after National Federation of Independent Business v. Sebelius, is one far more hostile to congressional Commerce Clause authority.

Since the revised statute hasn’t seen any legal challenges, it’s impossible to know for sure.

However, it’s unlikely that the government will risk any challenges to the law with the current Court in place, so any actual enforcement of the provision is equally unlikely.

So until the ideological composition of the Supreme Court shifts once again, the GFSZA will continue to go unenforced.