The federal judiciary has become dominated by what Glenn Harlan Reynolds calls Front-Row Kids—a credentialed elite with a prescribed resume.
In the 1995 case of United States v. Lopez, for the first time since the 1930s the US Supreme Court struck down a congressional enactment as beyond Congress’s power to regulate “commerce among the states.” The decision shocked many at the time, both on the Right and Left. Previous to Lopez, commentators across the ideological spectrum assumed Supreme Court decisions from the 1930s and 1940s effectively, if not explicitly, conferred on Congress the power to regulate anything the institution desired to regulate. The belief was the U.S. national government now effectively held a general police power rather than power over a limited set of areas delegated to the national government.
To be sure, in its 1930s and 1940s Commerce Clause decisions, the Court did not explicitly say it would never recognize limitations on congressional power. But reading between the lines, almost everybody took the Court to be winking at those limits.
Lopez suggested the Court would no longer wink. But while the Court soon followed Lopez in 2000 with United States v. Morrison, a case in which it struck down Congress’s “Violence Against Women Act” for also exceeding the institution’s power to regulate interstate commerce, Lopez’s promise of renewed and sustained judicial enforcement of limitations on national power never materialized.
Arguments abound as to why that’s the case. As striking as the decision was at the time, in returning over and over again to the majority and concurring opinion in the intervening decades, my own view is the majority in Lopez failed to resurrect and re-articulate the grand constitutional narrative — a grand constitutional rationale — for delegated power. The majority failed effectively to tap into the rationale for a limited national domain, and instead pointed the way down dead ends, focusing on minor fixes Congress could make easily while asserting formalisms that provided little effective guidance and held little persuasive power.
The Court made much in both Lopez and in Morrison of the absence in those laws of a statutorily required “nexus” between the interstate commerce and the criminalized activity. For the Gun Free School Zones Act litigated in Lopez, Congress soon adopted a Clinton-administration proposal effectively to adopt the same law with the added proviso that the weapon “has moved in or otherwise affects interstate commerce.” Most guns of course move at some point in interstate commerce. This simple legislative fix seemed to work legally. Subsequent challenges to the law have all been turned aside by the courts.
The majority opinion in Lopez invited the quick fix. However, absent from the law even as amended is the notion that something structural or systematic prevented state governments from addressing guns in schools, and national government action was somehow necessary, even in a broad, unrestricted sense.
Chief Justice Marshall’s opinion in Gibbons v. Odgen (1824) articulates a broadly nationalist view of the expansive powers delegated to the national government by the Constitution. Yet even in Marshall’s broad characterization of the scope of national power, a “nexus” proviso of the sort added to the Gun-Free School Zones Act would fail inclusion within the delegated power:
The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.
It does not require a strict or narrow reading of “commerce among the states” or of “general welfare” or of “necessary and proper” to conclude that the Gun-Free School Zones Act, even as amended, fails to rise to the level of inclusion in the national government’s delegated power. Even as that delegated power is construed by one of its most nationalist of expositors, albeit, an expositor nonetheless committed to the theory that the power of the national government is limited to that delegated power.
Also unhelpful in Lopez and Morrison is the Court’s introduction of whether something is commercial or economic activity. That’s both underinclusive and overinclusive of Congress’s interstate commerce power. On the one hand, there are economic matters that can and should be left for state determination. On the other hand, it is easy to imagine non-economic activities necessary to regulate in order to effectuate constitutional regulations of interstate commerce. The economic/non-economic distinction is unprincipled and no more helpful in identifying appropriate congressional power than the old direct/indirect dichotomy used by the Court prior to the 1930s.
Lopez never presaged a huge rollback in national power. The Court did not reject precedents from the 1930s and 1940s. Nonetheless, at least when it was announced, it promised a renewal of the Constitution’s theory of a national government of delegated powers, something the Court had not effectively done since the 1930s. As it has evolved however, that promise fizzled to do little more than add a few formalistic hurdles Congress can easily leap on the path to regulating almost any private activity it wishes.