The Potowmack Institute
The Texas Justice Foundationas amicus curiae
US v. Lopez
US Supreme Court, October term, 1993
Other briefs in US v. Lopez (1993) are in preparation.
The Fifth Circuit's Ruling (1993) is at
The Supreme Court's Ruling <1995) is at
The Potowmack Institute's amicus brief and other briefs in US v. Emerson (1999) are provided at
The US Court of Appeals, Fifth Circuit, and the Spreme Court in US v. Lopez struck down the Gun-Free School Zone Act as an impermissible expansion of the Commerce Clause into school yards. We get inappropiate laws like the Gun-Free School Zone Act because politicians cannot address the fundamental issue of the relationship between citizen and state. That issue is more explicitly involved in
US v. Emerson. A
national firearms policy derived from a proper understanding of the Second Amendment does not need the Commerce Clause.
Lopez, however, was an opportunity for rightwing ideologies to argue their real horror--the libertarian horror--and their real agenda. The horror is the existence of government especially centralized, federal authority. The agenda is a very class interested agenda to return to robber baron capitalism, the golden age of capitalist liberty. The whole issue turns on the power granted to Congress by the Commerce Clause. The Texas Justice Foundation makes only small mention of the Second Amendment, but dwells at some length on what it calls the "infamous" US v. Darby, 312 US 100 (1941), decision, which Edward Corwin's constitutional law text, The Constitution: What it means today (1978 edition, p. 67) calls the "very essence" of the New Deal constitutional revolution. The Texas Justice Foundation's amicus in Lopez does not mention that Darby upheld the Fair Labor Standards Act of 1938 which established the forty hour work week as national law. Darby was a reversal of
the Supreme Courts truly infamous ruling in
Lochner v. New York (1905) which struck down a New York state law limiting work hours in bakeries to sixty hours per week. About half of the e-mail received at the Potowmack Institute denounces touching guns with laws as "socialism". What is at stake here is the socialism of the forty hour work week (originally proposed by the Socialist Party) and the authority of this government to enforce it through the Commerce Clause. The connection with gun rights shows up in Lopez. Rightwing capitalism's fantasy finds a ready self-defeating constituency in gun rights militants.
In his scathing critique of
Ayn Rand's Atlas Shrugged in 1957, Whittaker Chamber wrote:
Dissent from revelation so final (because, the author
would say, so reasonable) can only be willfully wicked. There
are ways of dealing with such wickedness, and, in fact, right
reason itself enjoins them. From almost any page of Atlas
Shrugged, a voice can be heard, from painful necessity,
commanding: "To the gas chambers--go!" The same inflexibly
self-righteous stance results, too (in the total absence of any
saving humor), in odd extravagances of inflection and
gesture--that Dollar Sign, for example.
We will all be free when big bad government is controlled by a gun in every pocket, but the command will not be to the gas chambers as gun rights militants fear (See
Jews for the Preservation of Firearm Ownership), but to the capitalist liberty of seventy hours a week in coal mines and sweatshops.
INTEREST OF AMICUS CURIAE
The Texas Justice Foundation is a nonprofit corporation
that provides free legal representation in cases involving
the protection of individual rights and/or cases that seek
to limit government to its proper role. Amicus is deeply
concerned about federal interference in education. Amicus
believes that the future of our country depends upon state,
local, and parental control of our nation’s schools and
that constitutional constraints on
governmental power should be fully enforced. This case
raises issues as to the scope of those constraints. The
District Court upheld the constitutionality of the Gun-Free
School Zones Act, in part, because it decided that
education has an effect on interstate commerce. Should
this Court adopt the unprecedented expansion of the
commerce power sought by the United States, Congress may
gain vast power over our entire educational system. The
Foundation believes that this result would be contrary to
the text, intent, and structure of the Constitution.
Moreover, such a result would inevitably lead to further
decline of our educational system.
SUMMARY OF ARGUMENT
The United States would have this Court believe that our
country is in danger of economic balkanization because a
small minority of the citizenry carries guns near schools.
This position demonstrates just how far Commerce Clause
jurisprudence has departed from the text and original
intent of the Commerce Clause. That jurisprudence has now
evolved to its inevitable conclusion. If this Court accepts
the United States’ contention that the commerce power
extends to any subject having any remote effect on
interstate commerce, then congressional power will be
unlimited and Article I, Section 8 will effectively have
been written out of the Constitution. ‘The distinction
between a government with limited and unlimited powers is
abolished, if those limits do not confine the persons on
whom they are imposed. Marbury v. Madison, 5 U.S. (1
Cranch) 137, 176 (1805).
The United States claims that Congress may reach any
activity that has an effect on interstate commerce no
matter how small the effect. This position emasculates the
text of the Commerce Clause, rendering the three enumerated
categories of commerce both redundant and unnecessary. This
interpretation would likewise render Article I, Section 8
meaningless because all of the
enumerated powers under Article I have some relationship to
The structure of the Constitution reflects the federalist
values of the Framers, and is inconsistent with a view of
the Commerce Clause that would grant Congress unlimited
power. The Founders constrained Congress’ power to specific
enumerated powers to guard against undue expansion of
federal power. All other powers were to be reserved to the
states. If the United States’ position is adopted, the
citizens of this country will lose the valuable check that
federalism provides against government encroachment on our
The United States’ expansive interpretation of the Commerce
Clause stems from the interpretation of the Necessary and
Proper Clause in United States v. Darby, 312 U.S.
100 (1941). Contrary to the United States’ position, the
Necessary and Proper Clause is not a mechanism to expand
the enumerated powers of Article I, as this Court has held
in other cases involving Congress’ enumerated powers. The
Commerce Clause should be limited to its proper sphere.
The current approach under the Commerce Clause requires
courts to defer to congressional judgment that a regulated
activity has an effect upon interstate commerce, provided
that there is any rational basis for that judgment. This
standard grants judicial power to the legislative branch
and removes an important check on legislative power.
Deference to the judgment of a coequal branch of government
on a specific issue is only appropriate where the
Constitution gives that branch the power to decide that
issue. Here, the Constitution grants the Judicial Branch
the power to decide whether Congress is acting within its
enumerated powers, so no deference is due. Simply put, “The
constitution is either a superior paramount law,
unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and, like other acts, is
alterable when the legislature shall please to alter it.”
Marbury, 5 U.S. at 177.
Because the Judicial Branch has the constitutional duty of
preventing Congress from acting outside its enumerated
powers, heightened scrutiny is appropriate when considering
whether Congress has jurisdiction to act under the Commerce
Clause. This Court should adopt a test similar to that
applied in dormant Commerce Clause cases. Those cases take
a narrow view of what may properly be regarded as
regulation of commerce among the several states. The
proposed test would bring the jurisdictional inquiry under
the Commerce Clause into harmony with the approach in
dormant Commerce Clause cases.
I. THE COMMERCE POWER DOES NOT EXTEND TO INTRASTATE
ACTIVITIES THAT HAVE A TRIVIAL IMPACT ON INTERSTATE
A. The Overreaching Construction of the Commerce Clause
Urged By the United States Emasculates the Constitutional
Text and Ignores the Intent of the Commerce Power.
The United States asks this Court to make an unprecedented
extension of the power of Congress to regulate interstate
commerce. Essentially, the United States contends that the
Commerce Clause allows Congress to regulate any activity
that has an inconsequential effect on interstate commerce,
no matter how attenuated the chain of causation. See Brief
of United States at 12-25. The Fifth Circuit properly
observed that such an expansion of the commerce power would
make its scope unlimited. United States v. Lopez, 2
F.3d 1342, 1362 (5th Cir. 1993). Indeed, the immense power
claimed by the United States does not comport with either
the text or purpose of the Commerce Clause. The
Constitution gives Congress the power ‘To regulate Commerce
with foreign Nations, and among the several States, and
with Indian Tribes.” U.S. Const., art. I, ڎ, cl. 3. It
does not give Congress the power to regulate commerce and
anything having an effect thereon. The Gun-Free School
Zones Act has nothing to do with interstate commerce. The
Commerce Clause is merely a pretext for yet another
incursion by Congress into an area reserved to the states
under the Constitution.
The discussion below demonstrates that the Constitution
does not grant Congress the sweeping powers sought by the
United States. First, the United States seeks an
interpretation inconsistent with the text of the
Commerce Clause itself. Second, that interpretation would
render other provisions of Article I meaningless. Third,
the asserted scope of the Commerce Clause runs counter to
this Court’s interpretation of other enumerated powers.
Finally, this approach is incompatible with the original
intent of the Commerce Clause.
1. Text of Commerce Clause
The inquiry into the meaning of the Commerce Clause begins
with the text. Reid v. Covert, 354 U.S. 1, 8 n.7
(1957) (where language of Constitution is clear and
unambiguous it must be given its plain evident meaning).
The meaning of the term “commerce” is settled. In
Gibbons v. Ogden, this Court explained that
“commerce” encompasses more than simply traffic in
commodities; it encompasses “intercourse.” 22 U.S. (9
Wheat.) 1, 189-90 (1824). In other words, the term applies
to the instrumentalities of commerce used to carry
commodities from one place to another. The Gibbons
definition of commerce is consistent with both the views of
the Founders and of the ordinary meaning of the term
“commerce” at the time of the Constitution’s drafting. See
Richard A. Epstein, The Proper Scope of the Commerce
Power. 73 Va. L Rev. 1387, 1389 (1987).
The Commerce Clause thus anticipates Congressional
regulation of trade and the instrumentalities of trade. The
accepted definition of “commerce” does not, however,
contemplate Congressional regulation of anything that
happens to affect commerce. Congress’ power is restricted
to “that commerce which concerns more states than one.”
Gibbons, 22 U.S. (9 Wheat.) at
194. As this Court explained,
Comprehensive as the word “among” is, it may very
properly be restricted to that commerce which concerns more
states than one. The phrase is not one which would probably
have been selected to indicate the completely interior
traffic of a state,
because it is not an apt phrase for that purpose; and the
enumeration of the particular classes of commerce to which
the power was to be extended, would not have been made had
the intention been to extend the power to every
description. The enumeration presupposes something not
enumerated; and that something, if we regard the language
or the subject of the sentence, must be the exclusively
internal commerce of a state.
Gibbons, 22 U.S. (9 Wheat.) at 194-95.
The Gibbons opinion also implies that the Commerce
Clause can reach internal commerce which may “extend to or
affect other states.” 22 U.S. (9 Wheat.) at 194. This much
misunderstood statement does not support the broad
expansion of the commerce power urged by the United States;
it only recognizes that internal commerce may affect other
states. IS The Gun-Free School Zones Act, however, does not
even regulate internal commerce. Carrying a gun near a
school has no relation to a commercial transaction “carried
on between man and man in a state.” kL Even if
Gibbons can be read to allow Congress to regulate
internal commercial transactions, it cannot be read to
allow Congress to regulate any sort of intrastate behavior.
In addition, the passage concerning effects on commerce has
often been misinterpreted. In Gibbons, this Court
merely recognized that portions of interstate transactions
occur internally in a single state. As goods travel through
the several states in the stream of commerce, a portion of
that journey necessarily occurs completely Within a single
state. Accordingly, state and local laws affecting only
goods travelling within a state, can directly interfere
with the stream of interstate commerce. See Epstein,
supra, at 1405. This interpretation of
Gibbons is buttressed by the later observation in
that opinion that although inspection laws may have a
“considerable influence on commerce,” the
commerce power does not extend to such internal matters.
22 U.S. (9 Wheat.) at 203. The commerce power thus extends
to activities, such as the franchise rights at issue in
Gibbons, that interfere with actual interstate
commercial transactions. It does not extend to purely
localized activities that have some nebulous relation to
commerce, such as carrying a gun near a school.
An interpretation of the Commerce Clause that
brings within its scope any activity having any effect
whatsoever upon interstate commerce would render the text
of the clause meaningless. The Commerce cause also grants
Congress the power to regulate commerce with foreign
nations and with Indian tribes. Any activity that affects
commerce of one category in some attenuated way would
necessarily affect the other two categories. This result
renders the separately enumerated categories redundant. The
interpretation urged by the United States, therefore,
contradicts the principle that “the Commerce Clause draws a
clear distinction between ‘States’ and
‘Indian tribes.’” Cotton Petroleum Corp. v. New
Mexico, 490 U.S. 163, 191-92 (1989); see Epstein,
supra, at 1393
In addition, every activity affects commerce in some
insignificant way. Lopez, 2 F.3d at 1362. Had the
Founders intended the commerce power to be unlimited,
enumerating three categories of commerce for Congress to
regulate would have been unnecessary. Gibbons, 22
U.S. (9 Wheat.) at 194-95.
2. Text of Other Constitutional Provisions
The United States’ interpretation of the Commerce Clause
would make numerous other constitutional provisions
meaningless. Extending the Commerce Clause
to reach any matter that affects commerce would render the
enumerated powers nugatory. For example, Congress is
granted the power “to establish. . . uniform laws on the
subject of Bankruptcies throughout the United States.” U.S.
Const. art. I, * 8, cl. 4. Bankruptcies indisputably have a
tremendous affect on commerce. The Founders were aware that
bankruptcy strongly affects commerce and is “intimately
connected” therewith. The Federalist, No. 42 at 287 (James
Madison) (Jacob E. Cooke ed., 1961). Had the Founders
intended the commerce power to reach anything which affects
commerce, the bankruptcy power would have been unnecessary.
Numerous other Article I powers also concern subjects
having a substantial effect upon commerce. E.g.,
U.S. Const. art. I, * 8, cl. 5 (power to coin money); U.S.
Const. art. I, * 8, cl. 8 (power to grant intellectual
property rights). These powers are all superfluous and
without effect if the commerce power extends to any matter
that has any effect upon commerce. Such an interpretation
would violate the traditional rule that the Constitution
should not be interpreted to render other portions of the
E.g., Marbury v. Madison, 5 U.S. (1 Cranch)
137, 174 (1803).
3. Interpretation of Other Enumerated Powers
The overbroad interpretation of the Commerce Clause urged
by the United States also does not comport with the narrow
interpretation given to other enumerated powers under
Article I. The most analogous Article I power in terms of
its scope is the power “[t]o make rules
for the.. . Regulation of the land and naval Forces.” U.S.
Const. art. I, § 8, cl. 14. Congress’ power pursuant to
this clause is no less plenary than under any other grant
of congressional authority. Solorio v. United
States, 483 U.S. 435, 441 (1987). Indeed, judicial
deference is at its “apogee” when Congressional authority
under Clause 14 is challenged. Id. at 447. Similarly,
Congress’ power under the Commerce Clause is plenary.
E.g., Hodel v. Virginia Surface Min. & Reclam.
Ass’n,i., 452 U.S. 264, 276 (1981). Despite the similar
broad scope of these enumerated powers, Congress has been
denied the power under Clause 14 to regulate any matter
that may affect the land and naval forces.
In Reid v. Covert, this Court held that Congress
could not subject dependents of military personnel to
court-martial. 354 U.S. 1 (1957). The Reid decision
flatly rejected the contention that Congress could regulate
any matter having an effect on the land and naval
forces: “the Constitution does not say that Congress can
regulate ‘the land and naval forces and all other persons
whose regulation might have some relationship to
maintenance of the land and naval forces.’” Id. at 30.
Similarly, the Constitution does not say that Congress can
regulate ‘commerce among the several states and all other
activities whose regulation might have some relationship to
commerce.’ The interpretation of Clause 14 in Reid
is inconsistent with previous interpretations of the
Commerce Clause and with the interpretation now urged by
the United States.
4. Intent of Commerce Clause
The original purpose of an enumerated power is important.
To be faithful to the underlying premises of the
Constitution, courts should be aware of those premises when
interpreting a particular provision. Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528, 547 (1985);
also Id. at 563 n.5 (Powell J., dissenting). The
purpose of the Commerce Clause was to maintain free trade
among the several states. Cotton Petroleum Corp.,
490 U.S. at 192; Hughes v. Oklahoma, 441 U.S. 322,
325 (1979). The Founders feared that, left to their own
devices, states would interfere with interstate commerce
and create disagreements between themselves. The
Federalist, No. 7 at 39-40. (Alexander Hamilton)
(Jacob E. Cooke ed.
1961). The Founders foresaw the need for national control
to prevent animosity between the several states. The
Federalist, No. 22 at 137 (Alexander Hamilton) (Jacob
E. Cooke, ed. 1961); Baldwin v. GAF Seelig, Inc.,
294 U.S. 511, 522 (1935). This limited purpose does not
suggest the vast expansion of congressional power sought by
the United States.
The Gun-Free School Zones Act plainly falls outside the
original purpose of the Commerce Clause. The Act has
nothing to do with promoting the free flow of commerce or
with preventing state control over a subject which would
interfere with the flow of commerce.
B. Federalist Values Reflected in the Structure of the
Constitution Suggest a Narrow Interpretation of the
The unlimited power sought by the United States under the
Commerce Clause conflicts with the structure of the
Constitution and the values of federalism reflected
therein, If those values are to survive, the Judicial
Branch must maintain control over Congressional power as it
provides the only check on that power.
The Founders intended that federal power be constrained to
a limited sphere. The Federalist, No. 46 at 317.
(James Madison) (Jacob E. Cooke ed. 1961). In furtherance
of that goal, the Federal Government was granted only
enumerated powers for the express purpose of controlling
the “looseness of vague grants of power.” See Epstein,
supra, at 1396. As Madison explained, “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 Federal, No. 45 at 313 (James
Madison) (Jacob E. Cooke ed., 1961); Gregory v.
Ashcroft, 111 S. Ct. 2395, 2399 (1991). States were to
have broad powers over things concerning the lives,
liberties, and property of the people. Garcia, 469
U.S. at 570-71 (Powell, J., dissenting) (citing The
Federalist, No. 45).The Founders feared that a powerful
national government “eventually would eliminate the States
as viable political entities.” Id. at 568. They recognized
that people would have a stronger affinity for state
government and that state government would be more
responsive to the people. The Federalist. No. 17 at 107.
(Alexander Hamilton) (Jacob E. Cooke ed. 1961). Federalism
assures that the government will be more sensitive to the
diverse needs of a heterogeneous society. Gregory v.
Ashcroft, 111 S. Ct. 2395, 2399 (1991). “The Framers
recognized that the most effective democracy occurs at
local levels of government, where people with firsthand
knowledge of local problems have more ready access to
public officials responsible for dealing with them.”
Garcia, 469 U.S. at 575 N. 18 (Powell, J.,
dissenting). State governments have been paralyzed in
recent years due to overreaching by Congress and preemption
of state control.
Most importantly, federalism protects fundamental
liberties. Gregory, 111 S. Ct. at 2400. This
protection stems from the combined effects of the
responsiveness of state and local governments to the needs
of citizens and from federalism’s tendency to make
government compete for citizens. States are reluctant to
restrict liberties either (1) for fear that people will
leave and move to other states, or (2) for fear that its
own citizens and/or corporations will be disadvantaged
vis a vis the citizens of other states.
For this check against tyranny to work, however, there must
be a healthy balance of power between the states and the
federal government. Gregory, 111 S. Ct. at 2400;
New York v. United States, 112 S. Ct. 2408, 2431
(1992). Adopting the interpretation of the Commerce Clause
suggested by the United States would eliminate this
safeguard and make federal power unlimited. An
overambitious Congress should not be allowed, under the
guise of regulating commerce, to destroy the federalist
structure created by the Founders. If the Gun-Free School
Zones Act is constitutional, federalism is dead.
C.The Necessary and Proper Clause Does Not Expand the
Enumerated Powers of Congress Under Article I, Section 8.
The United States begins its argument by quoting the
infamous decision in United States v. Darby: “The
power of Congress over interstate commerce is not confined
to the regulation of commerce among the states. It extends
to those activities intrastate which so affect interstate
commerce or the exercise of the power of Congress over it
as to make regulation of
appropriate means to the attainment of a legitimate end,
the exercise of the granted power of Congress to regulate
interstate commerce.” 312 U.S. 100, 118 (1941); see also
Virginia Surface Min. & Reclant Ass’n, 452 U.S. at
281.; United States v. Wrightwood Daily, 315 U.S.
110, 119 (1942). As authority for the quoted passage, the
Darby Court cited McCulloch v. Maryland, 17
U.S. (4 Wheat.) 316, 421 (1819). See Darby, 312 U.S.
at 118-19. In McCulloch, this Court was interpreting
the Necessary and Proper Clause of the Constitution. See
generally McCulloch, 17 U.S. (4 Wheat.) at 411-425.
Accordingly, the Necessary and Proper Clause is the source
of constitutional authority for extending Congress’ power
over commerce among the several states to encompass the
power to regulate anything that affects commerce.
The United States’ interpretation of the Necessary and
Proper Clause is inconsistent with the very source of
authority upon which Darby relies, McCulloch v.
Maryland. Its position also conflicts with the original
intent of the Necessary and Proper Clause and later
interpretations of that clause in the context of other
enumerated powers under Article I.
Those opposing ratification of the Constitution feared
precisely the type of expansion of the enumerated federal
powers that the United States seeks here. During
the debates over ratification, the Necessary and Proper
Clause was a source of “much virulent invective and
petulant declamation against the proposed constitution ...“
The Federalist, No. 33 at 204 (Alexander
Hamilton)(Jacob E. Cooke ed. 1961). People feared that this
clause could be used to expand federal power and gradually
destroy local governments and exterminate liberty. Id.
Hamilton replied, “[IJt may be affirmed with perfect
confidence, that the constitutional operation of the
intended government would be precisely the same, if these
clauses were entirely obliterated, as if they were repeated
in every article. They are only declaratory of a truth,
which would have resulted by necessary and unavoidable
implication from the very act of constituting a Federal
Government and vesting it with certain specified powers.”
Id. In other words, the granting of enumerated powers to
Congress implies that Congress should have the power to
execute those powers.
Hamilton’s reassurance strongly suggests that the Founders
did not intend the Necessary and Proper Clause to
expand the scope of the enumerated powers. If, in
the absence of this clause, Congress would have the same
scope of power by implication as it does with the clause
included, the Necessary and Proper Clause can not expand
those powers otherwise enumerated. This interpretation is
confirmed by Madison: “For in every new application of a
general power, the particular powers, which are the
means of attaining the object of the general power,
must always necessarily vary with that object; and be often
properly varied whilst the object remains the same.” The
Federalist, No. 44 at 304 (James Madison)(Jacob E.
Cooke ed. 1961). According to Madison, the scope of
Congress’ enumerated powers (the object) remains unchanged.
Earlier in the same paragraph, Madison states that the
purpose of this clause was to avoid having to write “a
complete digest of laws on every subject to which the
Constitute relates.” Id. The Necessary and Proper Clause
thus grants Congress the power to employ
“particular powers” in exercising its general powers,
strongly suggesting that “particular powers” are narrower
in scope than general powers.
The United States’ position contradicts the Founder’s
intent, as it reads the Necessary and Proper Clause as
granting a significant expansion of Congress’ power under
the Commerce Clause. This expansive interpretation results
from Darby and an undue extension of the famous
statement in McCulloch upon which Darby
relies, “Let the end be legitimate, let it be within the
scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which
are not prohibited, but consist with the letter and spirit
of the constitution are constitutional.” 17 U.S. (4 Wheat.)
To justify an exercise of congressional power,
McCulloch requires (1) that the end be within the
scope of the Constitution, (2) that the means be plainly
adapted to that end, and (3) that the means consist with
the letter and spirit of the Constitution. The standard
sought by the United States contradicts each of these
requirements. First, it extends the power of Congress
beyond the scope of the Constitution. The Darby
decision does not hide this fact as it declares, in clear
contradiction to the text of the Constitution, that “[t]he
power of Congress over interstate commerce is not confined
to the regulation of commerce among the states.”
Darby, 312 U.S. at 118. Second, the means are not
adapted to the end of regulating commerce. Regulating
activities which have a remote effect on interstate
commerce are not plainly adapted to the end of regulating
commerce. Rather, they allow the use of the Commerce Clause
as a pretext to regulate purely intrastate activities.
Third, the expansion of
congressional power sought by the United States, as
discussed above, does not consist with the letter and
spirit of the Constitution. See sections I.A. and I.B.
The passage from McCulloch relied upon in
Darby merely restates the principles expressed by
Hamilton and Madison in the Federalist Papers. An ‘end’
refers to one of the enumerated powers of Congress in
Article I. For example, in McCulloch, the bank at
issue was created for the ‘end’ of raising revenue and
applying it to a national purpose under Article I, Section
8, Clause 1. See 17 U.S. (4 Wheat.) at 409. A ‘means’ is
simply a particular power used to exercise a more general
enumerated power, or a tool used in exercising an
enumerated power. The ‘means’ in McCuioch was a bank which
allowed conveying of money from place to place. Other
examples illustrate the distinction between ‘means’ and
‘ends’. The Court of Claims is a means to pay the debts of
the United States under Article I, Section 8, Clause 1,
while the Court of Customs and Patent Appeals was a means
to collect duties under Article I, Section 8, Clause 1, See
Glidden v. Zdanok, 370 U.S. 530,591(1962) (Douglas,
When considering whether a specific law passed by Congress
is within its jurisdiction under Article I, the question is
whether the law regulates subject matter which Congress is
empowered to regulate.
See McCulloch, 17
U.S. (4 Wheat.) at 421 & 423. In other words, the
jurisdictional question is whether the action that Congress
is regulating falls within an enumerated category. The
Darby standard, however, is bootstrapping. It
considers the regulation of subject matter that has an
effect on commerce as a ‘means’ to the ‘end’ of regulating
commerce. A means to an end, however, is a specific
way in which the subject matter is regulated.
Regulating subject matter that has an effect on commerce
is, in actuality, an ‘end’ in itself. Darby,
therefore, places additional ends within the reach of
Congress simply because they relate in some way to other
ends properly within the power of Congress.
The United States’ position is also inconsistent with other
decisions of this Court interpreting the Necessary and
Proper Clause in light of other enumerated powers under
Article L As noted above, Congress has plenary power under
Article I, Section 8, Clause 14 to make rules for the
regulation of the land and naval forces. Despite the
plenary scope of this power, the Necessary and Proper
Clause has been interpreted in connection with this power
in a way which squarely contradicts the United States’
In Reid v. Covert, the issue was whether Clause 14
allowed Congress to court-martial dependents of military
personnel who had committed a capital offense. 354 U.S. 1
(1957). This Court first observed that if clause 14 is
given its natural meaning, the enumerated power did not
extend to civilians. Id. at 19. As discussed above, if the
commerce power is given its natural meaning, it does not
extend to any activity which may affect commerce. The
government also argued that the Necessary and Proper Clause
allowed Congress to subject civilians accompanying military
personnel to court-martial. Id. at 20. Reid rejected
the argument that Congress could court-martial civilians
simply because they had some relationship to the “land and
naval forces.” Id. at 30. Certainly, if Congress may not
regulate activities which affect the land and naval forces,
it may not regulate activities which merely affect commerce
among the several states. The later decision in Kinsella
v. Singleton, 361 U.S. 234 (1960), strengthens this
In Kinsella, the issue was whether Congress could
extend the court-martial power to dependents of military
personnel in non-capital cases. The government alleged that
it was necessary to court-martial dependents charged with
non-capital crimes because these dependents “affect the
military community as a whole.” Id. at 238. The special
status of dependents in the military community allegedly
required disciplinary control and the effectiveness of this
control supposedly depended upon the court-martial
procedure. Id. at 239.
The substantial effect argument was rejected. This Court
held that “[i]f the exercise of the power is valid, it is
because it is granted in Clause 14, not because of the
Necessary and Proper Clause. The latter clause is not
itself a grant of power, but a caveat that the
Congress possesses all the means necessary to carry out the
specifically granted ‘foregoing’ powers of § 8 ‘and all
other Powers vested by this Constitution.’” Id. at 247. The
Kinsella holding contradicts the United States’
position in several ways. First, the quoted passage
establishes that for an exercise of power to be valid, the
power must be an enumerated one. This axiom is consistent
with the holding in Reid that Congress should not be
granted additional powers under the Necessary and Proper
which are not otherwise granted by the constitutional text.
But, Kinsella goes further. It holds, consistently
with the Founders’ intent, that the Necessary and Proper
Clause is not itself a grant of power.
The Reid interpretation of the Necessary and Proper
Clause was distinguished from McCulloch, because in
McCulloch, no specific restraints on the
governmental power stood in the way.
354 U.S. at 22. Clause 14, by its terms, limits military
jurisdiction to members of the land and naval forces. Id.
at 22. The same basis for distinguishing Reid from
McCulloch may be applied to the Commerce Clause.
Just as Clause 14 limits military jurisdiction to members
of the land and naval forces, the language of the Commerce
Clause limits commerce jurisdiction to commerce among the
Reid and Kinsella properly interpreted the
Necessary and Proper Clause. Kinsella recognizes
that the Founders never intended the Necessary and Proper
Clause to be a grant of power in itself. 361 U.S. at 247;
see also, Reid, 354 U.S. at 20-21 (can not
extend military jurisdiction beyond the scope of the power
described in Clause 14). These well-reasoned decisions can
not be reconciled with the position of the United States,
which would greatly expand the commerce power based upon
the Necessary and Proper Clause.
II. TO PROTECT THE STATES AGAINST AN IMPROPER EXPANSION OF
THE COMMERCE POWER, CONGRESS SHOULD HAVE THE BURDEN OF
SHOWING THAT IT IS EXERCISING ITS ENUMERATED POWERS.
A. Rational Basis Review Makes Congress the Arbiter
of Its Own Power.
The current standard for reviewing congressional
jurisdiction under the Commerce Clause dilutes the
constitutional power of judicial review and upsets the
balance of power carefully crafted by the Framers. When
reviewing congressional power to legislate under the
Commerce Clause, this Court defers to a congressional
finding that the regulated activity affects interstate
commerce if there is any rational basis for such a finding.
Virginia Surface Min, and Reclam. Ass’n., 452 U.S.
at 276. “The judicial task is at an end once the Court
determines that Congress acted rationally in adopting a
particular regulatory scheme.” Id.
Rational basis review effectively insulates congressional
power from meaningful review. Congress need only craft a
rationalization to establish a rational basis. This case is
no exception. The United States begins by contending that
the economic consequences of crime are substantial and
through the mechanism of insurance spread throughout the
population. Brief of United States at 17. Next, the United
States asserts that Congress could reasonably determine
that prohibiting gun possession around school premises
would reduce the
incidence of firearm violence.
The links to interstate commerce are strained.
The Judicial Branch plays a crucial role in “protecting the
States from federal overreaching.” Garcia, 469 U.S.
at 567 (Powell, J, dissenting). When considering questions
of the separation of powers between coordinate branches of
the federal government, additional checks on congressional
power normally exist. For example, where the question
relates to congressional encroachment on executive power,
the President can protect his own powers with a veto.
See e.g. I.N.S. v. Chadha, 462 U.S. 919
(1983). Thus, the checks and balances created by the
constitutional structure act to prevent one branch from
usurping the power of another branch without judicial
intervention. The Judicial Branch, on the other hand, is
the only check against federal encroachment on state
powers, especially because states must respect federal law
under the supremacy clause.
When determining whether Congress has exceeded its
enumerated powers under Article I, no deference should be
given to congressional judgement. Oregon v.
Mitchell, 400 U.S. 112, 204 (1970) (Harlan, J.,
dissenting). Although deference is justified in other
areas, congressional judgment should have no bearing in
considering congressional jurisdiction. “Judicial deference
is based, not on relevant fact finding competence, but on
due regard for the decision of the body constitutionally
appointed to decide.” Id. at 207 (Harlan, J., dissenting).
Judicial deference is appropriate when Congress is
determining how its power should be exercised,
because the Constitution gives this responsibility to
Congress. Judicial deference is inappropriate when the
issue is whether Congress has the power to regulate
because the Constitution gives the Judicial Branch the
responsibility of making sure Congress stays within the
bounds of its power.
To prevent Congress from overreaching, the Constitution
gives the Courts both the power and duty to determine
whether acts of Congress have exceeded those enumerated
powers. See Marbury, 5 U.S. at 177; Mitchell,
400 U.S. at 204-205 (Harlan, J., dissenting). This power
and duty stems from the structure of the Constitution. The
Judicial Branch interprets the Constitution to determine
whether Congress has a specific power. Once this Court has
determined Congress has a given power, it properly defers
to Congress’ decision as to how to implement that power.
Mitchell, 400 U.S. at 204-205 (Harlan, J.,
Amici, 16 members of the United States Senate and 34
members of the United States House of Representatives, rely
on FCC v. Beach Communications, Inc., 113 S. Ct.
2096, 2101 (1993), for the proposition that legislative
judgments may be based upon rational speculation
unsupported by evidence or empirical data. (Brief of Amici
at 7). This argument confuses the distinction between (1)
how Congress chooses to exercise its powers and (2) whether
the Constitution grants Congress the power to exercise. In
the passage quoted from Beach, the issue was whether
a statute violated the Equal Protection Clause. There,
deference to Congress is appropriate. In exercising its
powers, Congress must necessarily make certain
classifications. Because the legislature is better suited
to make such classifications
based upon the consideration of numerous factors, Courts
defer to those classifications as long as they are not
suspect and as long as there is a rational basis for them.
In determining whether Congress exceeded its powers under
the Commerce Clause, however, a court is not determining
why Congress legislated in a certain way. The issue is
jurisdiction to pass the law, not the merits of the law.
Because the Constitution gives the courts power to decide
whether legislation is within the scope of federal
jurisdiction under the Constitution, no deference to
Congress is justified. See Marbury, 5 U.S. (1
Cranch) at 177. Congress decides how to legislate,
this Court decides whether it can legislate.
Rational basis review is also inconsistent with the
approach to jurisdictional questions involving the
separation of powers between branches of the federal
government. For example, courts do not defer to
congressional judgment when deciding questions of
jurisdiction involving the legislative and executive
branches. See e.g., I.N.S. v. Chadha, 462
U.S. 919 (1983); Buckley v. Valeo, 424 U.S. 1
(1976). Just as no deference is due to Congress’ judgment
of whether it has exceeded its power under the Constitution
vis a vis other coequal branches of government, no
deference is due to Congress’ judgment as to whether it is
acting within the scope of its enumerated powers under
Deference to congressional judgment as to its power to
legislate under the Commerce Clause is inappropriate. 5uch
deference takes away from the
judicial power and gives judicial power to Congress. This
approach is incompatible with the system of checks and
balances crafted by the Founders. Chadha, 462 U.S.
at 957-58. The time has come to adopt a standard consistent
with the text of the Constitution, the intent of that text,
and the overall constitutional structure.
B. Heightened Scrutiny Is Appropriate When Considering the
Reach of the Commerce Power.
Under the ‘dormant Commerce Clause’ line of cases, this
Court has taken a narrow view of the meaning of ‘commerce
among the several states.’ Indeed, the dormant Commerce
Clause doctrine stems from the intent of the Commerce
Clause, its text, and the overall structure of the
Constitution. When considering Congress’ jurisdiction under
the Commerce Clause, a standard of review should be
employed that is consistent with, and congruent to, the
dormant Commerce Clause line of cases.
Dormant Commerce Clause doctrine rests upon the recognition
that the Commerce Clause, besides authorizing Congress to
regulate commerce among the several states, also prevents
the states themselves from regulating commerce among the
several states and thereby interfering with congressional
power. See e.g. Great Atlantic and Pacific
Tea Co. v. Cottrell, 424 U.S. 366, 37071(1976);
Cooley v. Board of Wardens, 53 U.S. (12 How.)
299 (1852). This limitation results from the realization
that “when a state proceeds to regulate commerce with
foreign nations, or among the several states, it is
exercising the very power that is granted to Congress, and
is doing the very thing which Congress is authorized to
do.” Gibbons, 22 U.S. (9 Wheat.) at 199-200.
A state law is invalid, then, when that state law is, in
reality, regulating commerce among the several states. If,
as the United States contends, congressional power under
the Commerce Clause extends to any private activity that
has any effect on interstate commerce, then
the principle behind the dormant Commerce Clause attains a
vast destructive potential. Because every state law has at
least some small effect on interstate commerce, all state
laws would be potentially unconstitutional under the
interpretation of the Commerce Clause offered by the United
States. After all, if any activity affects commerce, states
are always doing what Congress is empowered to do when they
pass any law because all laws have some small relation to
To bring the dormant Commerce Clause cases into harmony
with the approach to the question of congressional
jurisdiction under the Commerce Clause, a new test must be
devised for deciding jurisdictional questions. The approach
in the dormant Commerce Clause cases is consistent with the
Constitution, while the current approach to jurisdictional
questions is not.
Pursuant to dormant Commerce Clause doctrine, “not every
exercise of local power is invalid merely because it
affects in some way the flow of commerce between the
states.” Great Atlantic and Pacific Tea Co., 424
U.S. at 371. Similarly, when deciding whether Congress has
jurisdiction to legislate under the Commerce Clause, a
showing of a substantial effect on interstate commerce
should be required. Virginia Surface Min. and Reclam.
Ass’n, 452 U.S. at 310-11 & 312 (Rehnquist, J,
concurring); see also NLRB v. Jones and Laughlin Steel
Corp., 301 U.S. 1, 37 (1937); Wickard v.
Filburn, 317 U.S. 111, 125 (1942). “Activities local in
their immediacy do not become interstate and national
because of distant repercussions.” A.L.A. Schechter
Poultry Corp. v. United States, 295 U.S. 495, 554
(1935). Congress may not use a
relatively trivial impact on commerce as an excuse for
broad general regulation of state or private activities.
Lopez, 2 F.3d at 1361. Just as remote and indirect
links to health do not justify obstructing commerce, remote
links to commerce do not justify interfering with state
sovereignty. See Baldwin v. G.A.F. Seelig
Inc., 294 U.S. 511, 524 (1935). There is no two-tiered
definition of commerce. The same definition should be used
when deciding questions in dormant Commerce Clause cases as
when deciding issues of federal jurisdiction. Hughes v.
Oklahoma, 441 U.S. 322, 326 n.2 (1979).
Of course, if Congress is directly regulating interstate
commerce as defined above, there is no need to show a
substantial effect on commerce. Given Congress’ plenary
power to regulate commerce among the several states, the
jurisdictional inquiry is over once a court determines that
Congress is directly regulating interstate commerce.
The test should require further inquiry, however, when
Congress is only regulating an activity having a
substantial effect on commerce. Besides demonstrating that
the regulated activity substantially affects commerce,
Congress should be required to show a compelling need for
federal regulation. After such a showing is made, courts
should weigh the intrusion on state power against the
putative federal benefits. The degree of intrusion allowed
should depend upon the nature of the federal interest and
whether the states can adequately deal with the problem
The proposed test is consistent with the approach in
dormant Commerce Clause cases. Initially, the burden is
placed on Congress to justify its intrusion into state
affairs. See Hunt v. Washington State Apple
Advertising Comm’n., 432 U.S. 333, 353 (1977);
Hughes, 441 U.S. at 336. To be consistent with the
above analysis regarding deference to Congress over
questions of congressional jurisdiction, a court should
make its own determination of whether a substantial effect
on commerce has been shown.
This approach is followed in dormant Commerce Clause cases.
See e.g. Hunt, 432 U.S at 353-354;
Hughes, 441 U.S. at 336 (court “will determine for
itself the practical impact of the law.)”. Like dormant
Commerce Clause cases where a state receives less deference
when attempting to exercise federal powers, less deference
should be given to Congress where it is intruding into the
domain of state powers. See Kassel v. Consolidated
Freightways Corp., 450 U.S. 662, 675-76 (1981).
The proposed test would also allow courts to weigh the
intrusion on state sovereignty against the putative federal
benefits. Such a balancing test under the Commerce Clause
has been previously approved. See e.g.
Garcia, 469 U.S. at 562-63. In making this review,
the central inquiry is how closely the challenged action
implicates the central concerns of the Commerce Clause. Id.
at 563 n.5. Congress should, therefore, be required to show
a close relation between the regulated activity and the
central concern of the Commerce Clause, i.e. promoting free
trade among the several states. The compelling need for
federal regulation should then be weighed against the
intrusion on state sovereignty. E.g. Kassel,
450 U.S. at 670-71.
In determining whether the need for federal regulation is
compelling, courts should consider whether the states are
capable of addressing the problem on their own. Courts will
only sustain state regulations that discriminate against
interstate commerce if they are essential to protect a
compelling state interest. Dean Milk Co. v. City of
Madison, 340 U.S. 349, 356 (1951). Similarly, where
intrusion into state sovereignty is not essential, a
federal law should be struck down. Courts should also
consider whether the federal interest could be promoted
with a lesser impact on state sovereignty. See Pike v.
Bruce Church Inc., 397 U.S. 137, 142 (1970).
The Gun-Free School Zone Act does not pass constitutional
muster under this test. First, the United
States has not come close to meeting its burden to show a
substantial effect on interstate commerce. See
Lopez, 2 F.3d at 1366-68. In addition, the United
States has not shown a compelling need for federal
regulation. Even if guns in school zones are a serious
problem, there is no reason why the states can not handle
this problem on their own. Indeed, as observed above, and
by the 5th Circuit, Texas has a statute making Mr.
Lopez’s actions a felony.
III. THIS CASE PRESENTS A PROPER OCCASION TO REEXAMINE
PRECEDENT UNDER THE COMMERCE CLAUSE.
The time has come for the Judicial Branch to reassume its
role in preventing Congress from exercising powers not
entrusted to it under the Constitution. “In framing an
instrument, which was intended to be perpetual, the
presumption is strong, that every important principle
introduced into it is intended to be perpetual also; ...“
Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 355
(1827). The line of cases addressing congressional
jurisdiction to legislate under the Commerce Clause has
departed from those perpetual principles. Overruling
precedent is thus appropriate. As this Court has stated, it
will not hesitate to overrule precedent “when it has become
apparent that a prior decision has departed from a proper
understanding of congressional power under the Commerce
Clause.” Garcia, 469 U.S at 557.
The modern realities of our national government reflect
that the fears of the Founding Fathers are now manifesting
themselves. In recent years, Congress has become
increasingly less representative of state and local
interests and more responsive to national constituencies.
Garcia, 469 U.S. at 565 (Powell, J, dissenting).
State officials, knowing that Congress will eventually make
decisions on difficult issues, are reluctant to tackle
difficult issues for fear of the political consequences.
See New York v. United States, 112 S. Ct.
2408, 2432 (1992). As a
result, Congress continues to exercise more powers not
granted to it in the Constitution.
The Gun-Free School Zones Act may be based upon good
intentions. These intentions, however, are irrelevant.
“[T]he Constitution protects us from our own best
intentions: It divides power among sovereigns and among
branches of government precisely so that we may resist the
temptation to concentrate power in one location as an
expedient solution to the crisis of the day.” New
York, 112 S. Ct. at 2434; see also Dolan v.
Tigard , 1994 U.S. Lexis 4826 at *38, No. 93-518 (U.S.,
June 24, 1994) (strong public desire will not warrant a
shorter cut than the constitutional way); Reid, 354
U.S. at 35 n. 62.
Across this country there is a sense that people have lost
control over their government. In the last election, 121
new members of Congress were elected in a futile struggle
to regain control of the federal government. Efforts to
impose term limits on Congressmen, a subject this Court
will soon consider, is another manifestation of that
struggle. This struggle should be unnecessary. Congress
should be restrained to its proper role under the Commerce
Texas Justice Foundation
1. The original definition of commerce in Gibbons
does not render the three categories of commerce either
redundant or unnecessary. Epstein, supra, at 1394.
2. The Fifth Circuit recognized that any interpretation of
the Commerce Clause that gave it unlimited reach would
render the Tenth Amendment meaningless because there would
be nothing left upon which the Tenth Amendment could
operate. Lopez, 2 F.3d at 1347. This Court cannot
reverse the decision of the Fifth Circuit without
transforming the Tenth Amendment into a nullity.
3. The notion that the values of federalism must give way
as the Constitution is adapted to modern times is not well
founded. The national economy has always been interrelated
in the relevant manner as purely local actions have always
had some small effect on interstate commerce. See
Epstein, supra, at 1396. As Congress continues to
usurp more state authority in attempts to further
micro-manage this country, the values of federalism are
even more imperative. Those values must be affirmed in this
case, lest this Court arm Congress with a further weapon to
restrict the liberties of the people. As modern problems
become more complex and difficult to control, states must
be allowed to exercise their constitutional freedom to
experiment and them devise their own solutions to these
problems as Congress cannot adequately take into account
the myriad of local variables that affect such problems.
4. The United States stretches the elastic principle of
Darby to the breaking point. Under Darby,
congressional power only extends to those intrastate
activities which so affect interstate commerce to
make regulation of them appropriate. Darby,
312 US. at 118. (emphasis added). Later decisions imply a
limit on what activities Congress may appropriately reach
under the Commerce Clause. As stated in Maryland v.
Witz, ‘Neither here nor in Wkkwd 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.’ 392 U.S. 183,196(1963). The
Gun-Free School Zones Act seeks to do just that. Any impact
on commerce due to the carrying of guns in a school zone is
‘relatively trivial’ if any impact exists at all.
5. McCulloch also dictates that if Congress passes
laws for the accomplishment of objects not entrusted to it
under the Constitution under the pretext of executing its
enumerated powers, such laws would be unconstitutional.
McCulloch, 17 U.S. (4 Wheat.) at 423. The position
of the United States allows passage of such laws. Under the
pretext of regulating commerce, Congress regulates
intrastate activities not entrusted to it, but reserved to
the states under the Constitution. The Gun-Free School
Zones Act is only one example.
6. If the law merely establishes an agency or an
enforcement mechanism, the question is whether the agency
or enforcement mechanism operates on subject matter that
Congress may reach under Article I. The analysis in
McCulloch concerning the bank exemplifies such an
inquiry. Here, Congress is regulating behavior the
carrying of a gun in a school zone. As described in the
text, the constitutional issue is whether this behavior
falls within an enumerated category of congressional
regulation under Article I. Congress has also used an
enforcement mechanism, a criminal penalty, as a ‘means’ to
enforce the regulation. Although a criminal penalty is a
legitimate means of accomplishing a constitutionally
permitted end, the issue remains as to whether the end (the
regulation of an action) falls within an enumerated power.
Because the behavior carrying a gun in a school
zone is not part of a commercial transaction among two
states or an instrumentality of such a transaction, such
behavior does not fall within the ‘end’ of regulating
commerce among the several states.
7. The Reid opinion also notes that Article III
§ 2 and the Fifth and Sixth Amendments required certain
express safeguards designed to protect persons from
oppressive governmental practices. Id. at 22. These
safeguards could not be given in a military trial This
alleged difference from McCulloch begs the question.
The jurisdictional issue in Reid was whether
Congress could use its power over the land and naval forces
to court-martial dependents of military personnel. If
clause 14 extended to such persons, then the protections of
Article III § and the Fifth and Sixth Amendments would
not apply, just as they do not apply to court-martial
proceedings against military personnel.
8. Curiously, this rationalization fails to explain why
congressional legislation on the subject is more effective
than state legislation. As the 5th Circuit observed, Texas
has had a law since 1974 making Lopez’s actions a
felony. Lopez, 2 F.3d at 1345.
9. An analogy to proximate cause illustrates the problem.
Rational basis review allows Congress to legislate under
the jurisdiction of the commerce clause even when there is
no proximate relationship between the activity regulated
and the free flow of goods between the several states. The
link between carrying a gun near a school and interstate
commerce is certainly more attenuated than that between the
action of the Defendant and the injury of the Plaintiff in
Palsgraf v. Long Island Railroad Co., 248 N.Y. 339
10. The rational basis approach under the commerce power
also conflicts with the approach to other enumerated powers
under Article I. Courts normally make an independent review
of whether Congress exceeded its powers. For example, no
deference is accorded to congressional judgment under
Article I, Section 8, Clause 14. See e.g. Reid v.
Covert, 354 U.S. 1 (1957); Kinsella v.
Singleton, 361 U.S. 234, 244-46 (1%O) (questioning
necessity and effect of court-martial jurisdiction).
11. As previously observed, Texas has a law making Mr.
Lopez’s actions a felony. If, as the United States claims,
guns in school zones truly have a substantial effect upon
interstate commerce, it is unclear why the Texas law is
constitutional under the dormant Commerce Clause line of
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