United States v. Lopez

[Chief Justice Rehnquist delivered the opinion of the Court, joined by O’Connor, Scalia, Kennedy and Thomas, JJ. Kennedy, J., filed a concurring opinion joined by O’Connor, J.; Thomas, J., filed a concurring opinion. Stevens, J., and Souter, J., each filed dissenting opinions. Breyer, J., filed a dissenting opinion joined by Stevens, Souter and Ginsburg, JJ. The concurrences and the Stevens and Souter dissents are omitted; a portion of Justice Breyer’s dissent follows the majority.]

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.” 18 U. S. C. § 922(q)(1)(A). 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., Art. I, § 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 concealed .38-caliber handgun and five bullets. Acting upon an anonymous 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 him on one count. He moved to dismiss on the ground that § 922(q) was beyond the power of Congress; the District Court denied the motion, tried him without a jury, convicted him, and sentenced him to six months’ imprisonment and two years’ supervised release. The Fifth Circuit reversed, holding the statute invalid in light of what it characterized as insufficient congressional findings and legislative history. The Supreme Court granted certiorari.]

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. I, § 8. As James Madison wrote: “The 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.” The Federalist No. 45, pp. 292–293. This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U. S. 452, 458 (1991). “Just as the separation and independence of the coordinate branches of the Federal Government serve 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.” Ibid.

The Constitution delegates to Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. I, § 8, cl. 3.

[The Court reviews the arc of the doctrine — Marshall’s definition of the commerce power in Gibbons v. Ogden, the direct/indirect era of E. C. Knight and Carter Coal, and the abandonment of that vocabulary in Jones & Laughlin, Darby and Wickard. You have read all of them. The opinion then turns to what remains of the outer limit.]

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.” 301 U. S., at 37; see also Darby, at 119–120 (Congress may regulate intrastate activity that has a “substantial effect” on interstate commerce); Wickard, at 125 (Congress may regulate activity that “exerts a substantial economic effect on interstate commerce”). 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.

Similarly, in Maryland v. Wirtz, 392 U. S. 183 (1968), the Court reaffirmed that “the power to regulate commerce, though broad indeed, has limits” that “[t]he Court has ample power” to enforce. Id., at 196. In response to the dissent’s warnings that the Court was powerless to enforce the limitations on Congress’ commerce powers because “[a]ll activities affecting commerce, even in the minutest degree, [Wickard], may be regulated and controlled by Congress,” 392 U. S., at 204 (Douglas, J., dissenting), the Wirtz Court replied that the dissent had misread precedent as “[n]either here nor in Wickard has the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities,” id., at 197, n. 27. Rather, “[t]he Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Ibid.

Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez, at 150; see also Hodel, at 276–277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, at 256. 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. See, e.g., Shreveport Rate Cases, 234 U. S. 342 (1914); Southern R. Co. v. United States, 222 U. S. 20 (1911); Perez, at 150 (“[F]or example, the destruction of an aircraft (18 U. S. C. § 32), or … thefts from interstate shipments (18 U. S. C. § 659)”). Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e., those activities that substantially affect interstate commerce, Wirtz, at 196, n. 27.

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, Hodel; intrastate extortionate credit transactions, Perez; restaurants utilizing substantial interstate supplies, McClung; inns and hotels catering to interstate guests, Heart of Atlanta Motel; and production and consumption of homegrown wheat, Wickard v. Filburn, 317 U. S. 111 (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.

Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not. Roscoe Filburn operated a small farm in Ohio, on which, in the year involved, he raised 23 acres of wheat. It was his practice to sow winter wheat in the fall, and after harvesting it in July to sell a portion of the crop, to feed part of it to poultry and livestock on the farm, to use some in making flour for home consumption, and to keep the remainder for seeding future crops. The Secretary of Agriculture assessed a penalty against him under the Agricultural Adjustment Act of 1938 because he harvested about 12 acres more wheat than his allotment under the Act permitted. The Act was designed to regulate the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages, and concomitant fluctuation in wheat prices, which had previously obtained. The Court said, in an opinion sustaining the application of the Act to Filburn’s activity:

“One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.” 317 U. S., at 128.

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.³ 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.

Footnote 3

Under our federal system, the “‘States possess primary authority for defining and enforcing the criminal law.’” Brecht v. Abrahamson, 507 U. S. 619, 635 (1993) (quoting Engle v. Isaac, 456 U. S. 107, 128 (1982)); see also Screws v. United States, 325 U. S. 91, 109 (1945) (plurality opinion) (“Our national government is one of delegated powers alone. Under our federal system the administration of criminal justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States”). When Congress criminalizes conduct already denounced as criminal by the States, it effects a “‘change in the sensitive relation between federal and state criminal jurisdiction.’” United States v. Enmons, 410 U. S. 396, 411–412 (1973). The Government acknowledges that § 922(q) “displace[s] state policy choices in … that its prohibitions apply even in States that have chosen not to outlaw the conduct in question.” Brief for United States 29, n. 18; see also Statement of President George Bush on Signing the Crime Control Act of 1990, 26 Weekly Comp. of Pres. Doc. 1944, 1945 (Nov. 29, 1990) (“Most egregiously, section [922(q)] inappropriately overrides legitimate State firearms laws with a new and unnecessary Federal law. The policies reflected in these provisions could legitimately be adopted by the States, but they should not be imposed upon the States by the Congress”).

Second, § 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce. For example, in United States v. Bass, 404 U. S. 336 (1971), the Court interpreted former 18 U. S. C. § 1202(a), which made it a crime for a felon to “receiv[e], posses[s], or transpor[t] in commerce or affecting commerce … any firearm.” Id., at 337. The Court interpreted the possession component of § 1202(a) to require an additional nexus to interstate commerce both because the statute was ambiguous and because “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.” Id., at 349. The Bass Court set aside the conviction because, although the Government had demonstrated that Bass had possessed a firearm, it had failed “to show the requisite nexus with interstate commerce.” Id., at 347. Unlike the statute in Bass, § 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on 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.” Brief for United States 5–6. 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. See McClung, at 304; see also Perez, at 156 (“Congress need [not] make particularized findings in order to legislate”). 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 argues that Congress has accumulated institutional expertise regarding the regulation of firearms through previous enactments. We agree, however, with the Fifth Circuit that importation of previous findings to justify § 922(q) is especially inappropriate here because the “prior federal enactments or Congressional findings [do not] speak to the subject matter of section 922(q) or its relationship to interstate commerce. Indeed, section 922(q) plows thoroughly new ground and represents a sharp break with the long-standing pattern of federal firearms legislation.” 2 F. 3d, at 1366.

The Government’s essential contention, in fine, 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 interstate 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.

Although Justice Breyer argues that acceptance of the Government’s rationales would not authorize a general federal police power, he is unable to identify any activity that the States may regulate but Congress may not. Justice Breyer posits that there might be some limitations on Congress’ commerce power, such as family law or certain aspects of education. These suggested limitations, when viewed in light of the dissent’s expansive analysis, are devoid of substance.

Justice Breyer focuses, for the most part, 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, a fortiori, 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 is taught in local schools has a significant “effect on classroom learning,” and that, in turn, has a substantial effect on 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 Breyer’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.”

[The Court turns to the difficulty of stating the limit precisely, and finds the best statement of the problem in a concurrence from the formalist era.]

The broader point is well made in the concurring opinion of Justice Cardozo in Schechter Poultry:

“There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours ‘is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.’” 295 U. S., at 554.

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 bid fair to 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, cf. Gibbons v. Ogden, at 195, and that there never will be a distinction between what is national and what is local. This we are unwilling to do.

[Affirmed.]

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[Justice Breyer, with whom Justice Stevens, Justice Souter and Justice Ginsburg join, dissenting. Excerpts.]

The issue in this case is whether the Commerce Clause authorizes Congress to enact a statute that makes it a crime to possess a gun in, or near, a school. In my view, the statute falls well within the scope of the commerce power as this Court has understood that power over the last half century.

In reaching this conclusion, I apply three basic principles of Commerce Clause interpretation. First, the power to “regulate Commerce … among the several States” encompasses the power to regulate local activities insofar as they significantly affect interstate commerce. See, e.g., Gibbons v. Ogden, 9 Wheat. 1, 194–195 (1824) (Marshall, C. J.); Wickard v. Filburn, 317 U. S. 111, 125 (1942). As the majority points out, the Court, in describing how much of an effect the Clause requires, sometimes has used the word “substantial” and sometimes has not.

[Second, Justice Breyer argues, the question is not whether the activity in fact affects commerce but whether Congress could rationally have so concluded.]

[The] determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy. The traditional words “rational basis” capture this leeway. Thus, the specific question before us, as the Court recognizes, is not whether the “regulated activity sufficiently affected interstate commerce,” but, rather, whether Congress could have had “a rational basis” for so concluding.

I recognize that we must judge this matter independently. “[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.” Hodel, at 311 (Rehnquist, J., concurring in judgment). And, I also recognize that Congress did not write specific “interstate commerce” findings into the law under which Lopez was convicted. Nonetheless, as I have already noted, the matter that we review independently (i.e., whether there is a “rational basis”) already has considerable leeway built into it. And, the absence of findings, at most, deprives a statute of the benefit of some extra leeway. This extra deference, in principle, might change the result in a close case, though, in practice, it has not made a critical legal difference. See, e.g., Katzenbach v. McClung, 379 U. S. 294, 299 (1964) (noting that “no formal findings were made, which of course are not necessary”).

[Justice Breyer then attacks the majority’s economic/noneconomic line as inconsistent with the precedent it claims to apply.]

[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,” 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.”

More importantly, if a distinction between commercial and noncommercial activities is to be made, this is not the case in which to make it. The majority clearly cannot intend such a distinction to focus narrowly on an act of gun possession standing by itself, for such a reading could not be reconciled with either the civil rights cases (McClung and Daniel) or Perez — in each of those cases the specific transaction (the race-based exclusion, the use of force) was not itself “commercial.”

Notes & Questions

1. Big picture. This is the first case in almost sixty years to strike down a federal statute for exceeding the commerce power — the first since 1936, when Carter Coal was the last of five. That fact alone tells you the case is a hinge, but it does not tell you which way the door swings. Notice what the Court does not do. It does not overrule Wickard; it quotes it at length and calls it “perhaps the most far reaching example of Commerce Clause authority over intrastate activity” without disapproval. It does not overrule Perez; it takes its three categories from Perez and adds nothing. It does not restore the direct/indirect test that Jones & Laughlin and Wickard buried. What it does is take a sentence that had always been there — that the power “though broad indeed, has limits” — and, for the first time in two generations, enforce it. So the question for the module is whether Lopez is a change in doctrine or a change in judicial temperament applying the same doctrine. Your answer should be able to explain both why this statute failed and why Raich will succeed ten years later on facts that look, at first glance, more local than these.

2. Raw specific knowledge — build the table. From this opinion alone, write out Step 1 and Step 2 of the test. Step 1: the three categories Congress may reach, in the order the Court gives them and in the order I give them, and be able to say why the orders differ. Step 2: of the six considerations that determine whether a regulated activity substantially affects interstate commerce, four are on the page in front of you — economic activity, factual findings in the congressional record, a jurisdictional nexus limiting the statute’s application, and traditional state powers. Find each one, quote the sentence that carries it, and note where in the opinion it sits. One of the four is not in the body of the opinion at all. That is not an accident, and Question 4 asks you what follows from it. (The remaining two considerations arrive in Raich and NFIB.) Then state the vote and the line-up, and note that the two concurrences — Kennedy’s, joined by O’Connor, and Thomas’s — pull in opposite directions: Kennedy would go no further, Thomas would go much further and revisit the substantial-effects test root and branch. Five votes for the judgment; nowhere near five for a theory.

3. Practical application — draft the fix. Congress amended § 922(q) in 1994 and again after this decision, adding the element that the firearm “has moved in or … otherwise affects interstate or foreign commerce.” (a) Draft that jurisdictional element yourself, in one sentence, before you look at what Congress wrote. (b) Explain precisely what a prosecutor must now prove that she did not have to prove against Alfonso Lopez — and how she would prove it for a handgun manufactured in Connecticut and bought at a San Antonio gun show. (c) Every handgun in Texas was manufactured somewhere; if that is enough, has the amendment cured the constitutional defect or merely paid it a formality? (d) Now argue the other side: what is a jurisdictional element for, if not to make the statute’s reach coextensive with the power? My gloss on it: the nexus is a literal provision in the statute tying it to interstate commerce. It is a proxy. The example I use in class is a statute that applies only to companies with more than fifty employees. Is a proxy a limit or a ritual?

4. Attack the reasoning — where does factor four actually live? The Court’s fourth consideration, that Congress is intruding on an area of traditional state concern, appears in the body of the opinion only as a passing reference to “areas such as criminal law enforcement or education where States historically have been sovereign.” The doctrinal work is done in footnote 3 — Brecht, Screws, Bass, and President Bush’s signing statement objecting that the Act “inappropriately overrides legitimate State firearms laws.” A consideration that the Court itself relegates to a footnote is a consideration the Court is not confident about. I mark this factor with a question mark on the board and file it in the footnote. That is me reading the opinion, not doubting the factor arbitrarily. So: (a) Is “traditional state power” a test or an intuition dressed as a test? Try to state it in a form a court could apply without knowing the answer in advance. (b) Education is the example both the Court and I reach for. But federal law regulates school lunches, special education, standardized testing, campus sexual assault procedure, and school desegregation. In what sense is education a traditional state power? (c) Compare Justice Breyer’s charge that the majority “is unable to identify any activity that the States may regulate but Congress may not” with the majority’s charge that Breyer’s suggested limits are “devoid of substance.” Both are complaints that the other side has no stopping point. Can either side answer it?

5. Creative thinking — the chain of inferences. The Government’s argument runs: guns near schools cause violence; violence impairs learning; impaired learning produces a less productive citizenry; a less productive citizenry burdens the national economy. The Court’s objection is not that any link is false. It is that the chain is too long — “pile inference upon inference.” Two exercises. (a) Count the links elsewhere. Write out the chain in Wickard (Filburn feeds his own wheat to his own chickens → he does not buy wheat → aggregate demand falls → the market price falls → the federal price-support program is undercut) and in Katzenbach (Ollie will not seat Black customers → he sells less barbecue → he buys less out-of-state beef → interstate commerce in beef declines). Is either chain shorter than the Government’s here? If not, what is the Court actually measuring? (b) Build the rule. Draft a two-sentence constitutional test that distinguishes the chains the Court accepts from the chains it rejects, without using the words “economic” or “commercial.” If you cannot, say what that tells you — and hold the answer, because in NFIB Justice Ginsburg will hand this very phrase back to the Court, using “piling of inferences” against a hypothetical the Chief Justice offers about broccoli.