# Amicus Curiae Brief — United States v. Lopez

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 549

## Text

;
;

No.99-1260 ~—/ [ Bageamm Gort, 8.4 |
PILED |

Supreme Court of the United States, .:

——
a

OCTOBER TERM, 1994 ~~

UNITED STATES OF AMERICA,

~ Petitioner,

ALFONSO LOPEZ, JR.,
Respondent.

al

On Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

BRIEF OF THE
NATIONAL CONFERENCE OF STATE LEGISLATURES,
NATIONAL GOVERNORS’ ASSOCIATION,
NATIONAL LEAGUE OF CITIES,
NATIONAL ASSOCIATION OF COUNTIES,
INTERNATIONAL CITY/COUNTY
MANAGEMENT ASSOCIATION, AND
NATIONAL INSTITUTE OF
MUNICIPAL LAW OFFICERS, JOINED BY THE
NATIONAL SCHOOL BOARDS ASSOCIATION,
AS AMICI CURIAE IN SUPPORT OF RESPONDENT

RARRY FRIEDMAN RICHARD RUDA *
\ ANDERBILT UNIVERSITY JAMES I. CROWLEY
SCHOOL OF LAW STATE AND LOCAL LEGAL CENTER

Twenty-first Avenue South 444 North Capitol Street, N.W.,
*Tashville, Tennessee 37209 Suite 345

615) 822-2154 Washington, D.C. 20001
Of Counsel (202) 484-4850
* Counsel of Record for the
Amici Curiae

WILSON - Epgs PRINTING Co.. Inc. - 789-0096 - WASHINGTON, D.C, 20001

QUESTION PRESENT” }

Whether the Commerce Clause of the <‘onstitution em-
powered Congress to enact 18 U.S.C. §922(q), which
makes it a federal offense to possess a firearm in or within
1000 feet of 2 school

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TABLE OF CONTENTS

TION PRESENTED

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAER

STATEMENT

SUMMARY OF ARGUMENT

ARGI

A

IMENT

The Constitution Grants Congress Only Limited
Authority To Define And Punish Criminal
Activity

The Commerce Clause Does Not Authorize Con
gress’s Enactment Of The Gun-Free School
Zones Act

The United States’ Standard Of Review Re
quires The Abdication Of Meaningful Judicial
Review And Conflates The Standard For Deter
mining The Validity Of Legislative Means With
That For Determining Whether Legislation Is
A Permissible End Of The Commerce Power

Because The Federalization Of Traditional State

Crimes Imposes Substantial Costs On The
Federal-State Balance And Rights Granted Un-
der State Law, Courts Properly Require Con-
gress To Show That Regulated Activity Has A
Substantial Effect On Interstate Commerce

CONCLUSION

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Page

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iv

TABLE OF AUTHORITIES

Cases Page
Atascadero State Hosp. v. Scanlon, 473 U.S. 234
ha ac a ea 9
Board of Ed. v. Rowley, 458 U.S. 176 (1982) -....... 22
City of Akron v. Akron Center for Reproductive
Health, 462 U.S. 416 (1983) ........... = a Mapa Bae 19
Cohens v. Virginia, 15 U.S. (6 Wheat.) 264
(1821 )............ Si Re BIRT a OOS Ge ce RCI a LA passim
Coleman v. Thompson, 111 S.Ct. 2546 (1991)... 9
Cooper v. California, 386 U.S. 58 (1967) ........... Ds 29
Cotton v. United States, 52 U.S. (11 How.) 229
|, EIA See SER CSTE are kN rae 10
Engle v. Isaac, 456 U.S. 107 (1982) ..........00...... 5, 10, 15-16
Epperson v. Arkansas, 393 U.S. 97 (1968) -....... 22
FCC v. Beach Communications, 113 S.Ct. 2096
| RRA ree At Bi Nea La 7,25
Fry v. United States, 421 U.S. 542 (1975) —........... 5,13
Garcia v. San Antonio Metro. Transit Auth., 469
8 6 6G | RS aS a Sa ee 9
Gregory v. Ashcroft, 111 S.Ct. 2895 (1991) .......... passim
Heart of Atlanta Motel, Inc. v. McClung, 379 U.S.
RI a a ce ee a as passim
Hodges v. United States, 203 U.S. 1 (1906)............ 12
Hodel v. Indiana, 452 U.S. 314 (1981) .....-......000.... 18
Hodel v. Virginia Surface Mining & Reclamation
Pp’ , Y g:' & fy. } Reem passim
INS v. Chadha, 462 U.S. 919 (19838) -............. peace 26
Katzenbach v. McClung, 379 U.S. 294 (1964) passim
Keller v. United States, 213 U.S. 138 (1909) _....... passim
Marbury v. Madison, 5 U.S. (1 Cranch) 137
EE sc batten cee ee ee rere piece. 30
Maryland v. Wirtz, 392 U.S. 183 (1968) -....0....2...... 6,13
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1. REE A ee cote ne ea ane SR a me passim
Oregon v. Hass, 420 U.S. 714 (1975) 20002... 29
Patterson v. New York, 432 U.S. 197 (1977) ......... 10
Perez v. United States, 402 U.S. 146 (1971) ........... passim
Rez v. Curl, 93 Eng. Rep. 849 (K.B. 1727) ............ 10

PruneYard Shopping Center v. Robins, 447 U.S. 74

V

TABLE OF AUTHORITIES—Continued

Page
Shaw v. Director of Pub. Prosecutions, 1962 App.

Cas. 220 (H.L. 1961) Cece 10
Sibron v. New York, 392 U.S. 40 (1968) _............... 29
Stirone v. United States, 361 U.S. 212 (1960) 14
United States v. Bass, 404 U.S. 336 (1971) ..12, 14, 22, 26
United States v. Britton, 108 U.S. 199 (1883) 10
United States v. Carolene Products Co., 304 U.S.

144 (1938) 6, 18, 21, 22
United States v. Coombs, 37 U.S. (12 Pet.) 72

(1838) passim
United States v. Darby, 312 U.S. 100 (1941) 12
United States v. Eaton, 12 S.Ct. 764 (1892) 10
United States v. Evans, 928 F.2d 858 (9th Cir.

1991) a luiidacaat 16
United States v. Five Gambling Devices, 346 U.S.

Ge RD cide eee ave ee 12
United States v. Wrightwood Dairy Co., 315 U.S.

110 (1942) 13
Wickard v. Filburn, 317 U.S. 111 (1942) passim

Constitutional Provisions
U.S. Const. amend. X : cnavemesie 9
U.S. Const. art. I, § 7 26
U.S. Const. art. I, § 8, cl. 6 Pe eI Ne eT AN 10
U.S. Const. art. I, § 8, cl. 10 Ae ey, 10
U.S. Const. art. I, § 8, cl. 14 10
8 Ry ee OD , Reena ee 10
U.S. Const. art. ITI, § 3 10
Statutes
Crime Control Act of 1990, Pub. L. No. 101-647,

He Rp | OMe
ae I ia seeciecenatitegneviccinedtanadnbonecien se ae “passim
Tex. Penal Code § 12.34 .................... oe RON Roe SRLS 3
Tex. Penal Code § 46.04 (a) (1) -2..2222222..-2eeee eee cece eeeeee ee 3

Other Authorities

Joel P. Bishop, Commentaries on the Criminal Law
(Williams S. Hein Co. 1986) (7th ed. 1982) ...... 10

eT

vi

TABLE OF AUTHORITIES—Continued
Page
Brennan, State Constitutions and the Protection of
Individual Rights, 90 Harv. L. Rev. 489 (1977).. 29
Buckley, Introduction—Federalism and the Scope
of the Federal Criminal Law, 26 Am. Crim. L.

7 me: me) ) ees 20
Budget of the United States Government: Fiscal

Year 1994 16
Henry J. Friendly, Federal Jurisdiction: A Gen-

, 2. eb: | omncnen . 27, 29

Gun-Free School Zones Act of 1990: Hearing ‘Be-
fore the Subcomm. on Crime of the House Comm.
on the Judiciary, 101st Cong., 2d Sess. (1990)... 15, 17,
27
H.R. Rep. No. 101-681(1), 101st Cong., 2d Sess.
(1990), reprinted in 1990 U.S.C.C.A.N. 6472... 6,15
Richard Latzer, State Constitutions and Criminal
A. CEE dscssadidddcicecidy cena _.....29, 29-30
Miner, Federal Courts, Federal Crimes, And Fed-
eralism, 10 Harv. J.L. & Pub. Pol’y 117 (1987) ..nassim
Nat’l L.J., Sept. 29, 1986 (Special Supplement) .... 29-30
George Richards, A Treatise on the Law of Insur-
pene Cae OE, TOD eccedicsindccasenmedaicanetes 16
Ruttenberg, The Limited Promise of Public Health
Methodologies To Prevent Youth Violence, 103

Sadie Ge: 0 OD Citececnecess ees oes 21
Report of The Federal Courts Study Committee
I Ri cvncscs chnosncecticisescblib metacee ae eee 27
The Federalist No. 45 (Isaac Kramnick ed. 1987) |
(J. Madison) SCS Pe EE ea TEE DU 8-9 |
The Federalist No. 51 (Isaac Kramnick ed. 1987)
as, NII sans ctitrssiosisssseta temic uameeiide atlases. 9

U.S. Bureau of the Census, Statistical Abstract of
the United States: 1993 (1993) _. ; 15

BRIEF OF THE
NATIONAL CONFERENCE OF STATE LEGISLATURES,
NATIONAL GOVERNORS’ ASSOCIATION,
NATIONAL LEAGUE OF CITIES,
NATIONAL ASSOCIATION OF COUNTIES,
INTERNATIONAL CITY/COUNTY
MANAGEMENT ASSOCIATION, AND
NATIONAL INSTITUTE OF
MUNICIPAL LAW OFFICERS, JOINED BY THE
NATIONAL SCHOOL BOARDS ASSOCIATION,
AS AMICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE

Amici National Conference of State Legislatures, Na-
tional Governors’ Association, National League of Cities,
National Association of Counties, International City/
County Management Association, and National Institute
of Municipal Law Officers (NCSL et al.) are organiza-
tions whose members include state and local governments
and officials throughout the United States. These amici
have a compelling interest in the legal issues that affect
state and local governments and in the proper working of
our federal system.

Amici NCSL et al. view with utmost seriousness the
problem posed by criminal behavior in our society, and
the tragedy of the possession and use of guns in schools.
Indeed, Texas has criminalized the possession of a gun in
a school since 1974, long before the Gun-Free School
Zones Act was enacted, and respondent was prosecuted
by state authorities under this state law before the federal
prosecution was commenced. Pet. App. 2a n.1.

There are, however, fundamental constitutional ques-
tions presented by this case that must be addressed despite
the sensitivity of the context in which they arise. It is
axiomatic that “our Constitution establishes a system of
dual sovereignty between the States and the Federal Gov-
ernment.” Gregory v. Ashcroft, 111 S.Ct. 2395, 2399
(1991). And while Congress’s power to regulate activity
under the commerce clause is without question very

:
;
i

2

broad, it is not unlimited. See, e.g., Wickard v. Filburn,
317 U.S. 111, 125 (1942). When Congress legislates at

what are, at best, the outer limits of its commerce power,

meaningful judicial review of whether that exercise 1s
within Congress's delegated powers is essential if our
lederal system ts to be preserved.

Amici NCSL et al. are also concerned that the crowing
trend toward the unbounded federalization of what have
hitherto been state criminal offenses witl undermine the
working of our federal system in other ways. The identifi-
cation and proscription of criminal conduct has, since the
founding of our nauion, been one of the principal con-
cerns of ihe States. Shifting the focus of this lawmaking
from the States to Congress crodes essential features of
our federal system. See Gregory, 111 S.Ct. at 2399.

The National School Boards Association (NSBA) is a
federation of state school boards associations, representing
approximately 97,000 of the nation’s school board mem-
bers who, in turn, govern the schools attended by 97 per-
cent of all U.S. public school children. NSBA is deeply
concerned about violence and crime in and around the
schools and has recently published a guide on effective
methods to curb violence in public schools. But redun-
dant federal laws do not address the problem of violence
in the schools—they simply make administration of the
schools more difficult and could cause delays in bringing
perpetrators to justice.

Education in the nation’s public schools has long been
the function of state and local governments. Accordingly,
amicus NSBA is concerned with the United States’ reli-
ance on findings made in connection with legislation en-
acted under the spending power to support its argument
that education substantially affects interstate commerce.
Because state participation in spending programs is volun-
tary, such findings do not support expansive federal regu-
lation of the public schools under the commerce clause.

3

Because of the importance of these issues to amici and
their members. amici submit this brief to assist the Court
in its resolution of this case.’

STATEMENT
On March 10, 1992, respondent Alfonso Lopez, Jr., a
student at Edison High School in San Antonio, Texas,
arrived at school carrying a concealed .38 caliber hand-
gun. Acting on an anonymous tip, school officials con-
fronted Lopez, who admitted he was carrying the gun.

The officials seized the gun (which was not loaded) and
five bullets. Pet. App. 2a.

State authorities immediately charged Lopez with vio-
lating Section 46.04(a)(1) of the Texas Penal Code.
Like many similar state laws, this statute makes it a
felony for a person to go “on the premises of a school or
an educational institution” while carrying a firearm, and
carries a punishment of up to ten years imprisonment and
a $10,000 fine? Tex. Penal Code § 46.04(a)(1); id.
$12.34. The state charges were dismissed, however,
after a federal grand jury indicted Lopez for violating 18
U.S.C. § 922(q), the Gun-Free School Zones Act of
1990. Pet. App. 2a n.1.

The federal indictment did not allege that the firearm
Lopez possessed had any nexus to interstate commerce

and the United States conceded that Lopez’s conduct was

1 The parties have consented to the filing of this brief amicus
curiae. Letters indicating their consent have been filed with the
Clerk of the Court.

2 The brief amicus curiae of various members of Congress baldly
asserts that “[t]he Gun-Free School Zones Act represents the first
effort to address the growing crisis of guns in’ schools and the re-
lated problems of drugs and gang activity.” Br. Am. Cur. 16
Members of the U.S. Senate et al. 6 (citation omitted). In contrast
to the Gun-Free School Zones Act which was enacted in 1990, see
104 Stat. at 4968, Texas has proscribed the conduct charged here
for more than twenty years. See Tex. Penal Code § 46.04(a) (1).
Forty States have such laws. See Appendix hereto. Many of these
laws were enacted before the Gun-Free School Zones Act.

4

purely intrastate in nature. Pet. App. 50a-53a. More-
over, by its terms, Section 922(q) does not require that
the United States prove a nexus to interstate commerce.
See 18 U.S.C. § 922(q). Nonetheless, the district court
denied Lopez's motion to dismiss the indictment, reason-
ing that the Gun-Free School Zones Act was “a constitu-
tional exercise of Congress’ well-defined power to regulate
activities in an[d] affecting commerce.” Pet. App. 55a.
Thereafter, the court convicted Lopez and sentenced him
to six months imprisonment, to be followed by two years
of supervised release. Pet. App. 3a.

The court of appeals reversed. The court recognized
that under the commerce clause, Congress has the power
to regulate purely intrastate activity which has a sub-
stantial effect on commerce. See Pet. App. 37a-39a. The
court also recognized that this Court “has consistently
deferred to Congressional findings in this respect,” id. at
40a, and that “the courts must defer ‘if there is any
rational basis for’ the finding.” Jd. at 43a (citation
omitted). The court concluded, however, that it could
not “properly perform [its] duty to determine if there is
any rational basis for a Congressiona! finding if neither
the legislative history nor the statute itself reveals any
such relevant finding.” /d. at 44a.

The court also reasoned that in the absence of a find-
ing, “there is nothing to indicate that Congress itself
consciously fixed, as opposed to simply disregarded, the
boundary line between the commerce power and the re-
served power of the states.” Jd. Because “both the man-
agement of education, and the general control of simple
firearms possession by ordinary citizens, have traditionally
been a state responsibility and section 922(q) indisput-
ably represents a singular incursion by the Federal Gov-
ernment into territory occupied by the States[,]” id. at 45a,
findings were “necessary to demonstrate that such an ex-
ercise of power is within the scope of the Commerce
Clause.” Jd. at 48a. Because neither Section 922(q) it-
self, nor its legislative history, contains any findings that
the purely intrastate activity it proscribes substantially

5

affects interstate commerce, the court of appeals vacated
respondent’s conviction. /d. at 54a.

SUMMARY OF ARGUMENT

1. “{O]ur Constitution establishes a system of dual
sovereignty between the States and the Federal Govern-
ment[,]” granting to the latter only “limited powers.”
Gregory v. Ashcroft, 111 S.Ct. 2395, 2399 (1991).
Under our constitutional plan, “[t]he States possess pri-
mary authority for defining and enforcing the criminal
law,” Engle v. Isaac, 456 U.S. 107, 128 (1982), and the
federal government has limited power to define and pun-
ish criminal activity. See Cohens v. Virginia, 19 US.
(6 Wheat.) 264, 428 (1821); Keller v. United States,
213 U.S. 138, 144 (1909).

While an offense may be created and “punished by
Congress, under its general authority to make all laws
necessary and proper to execute their delegated constitu-
tional powers,” United States v. Coombs, 37 US. (12
Pet.) 72, 78 (1838), Congress can criminalize activity
under the necessary and proper clause only when it is
pursuing an end which is clearly within its enumerated
powers. McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316. 423 (1819); see also Coombs, 37 U.S. (12 Pet.)
at 75. The Court has also made clear that Congress can-
not exercise authority not granted to it under the pre-
text of exercising its enumerated powers. McCulloch, 17
U.S. (4 Wheat.) at 423.

2. Congress’s power to criminalize activity under the
commerce clause is limited.by that clausé’s real and sub-
stantial Jimits. Thus, while Congress can regulate “ac-
tivity that is purely intrastate in character,” Fry v. United
States, 421 U.S. 542, 547 (1975), that activity must
“‘so affect interstate commerce, or the exertion of the
power of Congress over it, as to make regulation of [it]
appropriate means to the attainment of a legitimate end.’ ”
Perez v. United States, 402 U.S. 146, 151 (1971) (cita-
tion omitted). As the Court noted in Wickard v. Filburn,
317 U.S. 111, 125 (1942), local activity may be regu-

6

lated pursuant to the commerce power only “if it exerts
a substantial economic effect on interstate commerce.”
Accord Perez, 402 U.S. at 151-52. The Court has never
gone so far as to “declare[| that Congress may use a
relatively trivial impact on commerce as an excuse for
broad general regutation ef sate or private activities.”
Maryland v. Wirtz, 392 U.S. (8%, 196 n.27 (1968).

As a regulation of purely intrastate activity, the Gun-
Free School Zones Act does not meet these. standards.
Neither the Act nor the legislative history of the Crime
Control Act of 1990 (of which the Gun-Free School
Zones Act was a part) contains any reference to the
effect on interstate commerce of gun possession in the
schools. See Crime Control Act of 1990, Pub. L. No.
101-647, § 1702, 104 Stat. 4844-45; H.R. Rep. No.
101-681(1), 1OIst Cong., 2d Sess. 69 (1990), reprinted
in 1990 U.S.C.C.A.N. 6472. Although the Act was the
subject of hearings by a House subcommittee, the testi-
mony and other evidence received at that proceeding does
’ net establish that firearms possession in the schools has a
substantial effect on interstate commerce.

3. Recognizing that Congress, in enacting the Gun-
Free School Zones Act, failed to make any findings regard-
ing the impact of gun possession in and around schools
on interstate commerce and that the legislative record is
devoid of any evidence of an impact on interstate com-
merce, the United States argues that “judicial inquiry
into the rationality of legislation ‘must be restricted to
the issue whether any state of facts either known or which
could reasonably be assumed affords support for it.’ ”
Pet. Br. 16 (quoting United States v. Carolene Products
Co., 304 U.S. 144, 154 (1938)) (emphasis added).
This argument substitutes judicial surmise for legislative
facttinding and requires nothing less than the abdication
of meaningful judicial review. It also confuses the stand-
ard for reviewing the rationality of legislative means with
that for determining whether legislation is a permissible
end of the commerce power.

a

7

At issue here, however, is not whether Congress has
chosen a lawful means to effectuate a concededly valid
goal, but whether it has the power to act at all. Precisely
because congressional regulation of purely intrastate ac-
tivity involves the exercise of the commerce power at its
outer limits, the Court has recognized that “the mere fact
that Congress has said when a particular activity shall be
deemed to affect commerce does not preclude further ex-
amination by this Court.” Katzenbach v. McClung, 379
U.S. 294, 303-04 (1964); see also Hodel v. Virginia
Surface Mining & Reclamation Assoc., 452 U.S. 264,
311 (1981) (Rehnquist, J., concurring). Moreover, in
reviewing congressional regulation of purely intrastate
activity, the Court has engaged in a searching review of
the legislative record to determine that a rational basis
exists for concluding that a regulated class of activity has
a substantial effect on interstate commerce. See Hodel,
452 U.S. at 277-80; Perez, 402 U.S. at 155-56; Katzen-
hach. 379 U.S. at 299-301; Heart of Atlanta Motel, Inc.
v. United States, 379 U.S. 241, 252-53 (1964).

Moreover, the Court has never suggested that in assess-
ing the validity of Congress's exercise of power under
the commerce clause, courts should assume that a state
of facts exists to support it. While courts properly assume
a state of facts when assessing the rationality of legislative
means. see FCC vy. Beach Communications, 113 S. Ct.
2096, 2101-02 (1993), this is because the necessary
and proper clause grants Congress broad discretion to
enact “all means which are appropriate, [and] which
are plainly adapted to” a legitimate end. McCulloch,
17 U.S. (4 Wheat.) at 421. But it does not extend to
the question of the validity of the end itself. The extreme
and unwarranted deference on the question of legislative
ends urged by the United States is antithetical to a
constitutional system which “created a Federal Govern-
ment of limited powers.” Gregory, 111 S. Ct. at 2399.

4. The requirement that Congress establish in the
legislative record that purely intrastate activity it is crim-

8

inalizing has a substantial effect on interstate commerce
is also supported by the substantial costs which the feder-
alization of traditional state crimes imposes on the federal-
state balance and rights granted under state law. Because
federalization offers the promise of a federal solution, it
diminishes the political accountability of state and local
officials and institutions. See Roger J. Miner, Federal
Courts, Federal Crimes, And Federalism, 10 Harv. J.L.
& Pub. Pol’y 117, 127 (1987). Moreover, federalization
imposes a significant threat to the States’ sovereign choices
and individual liberty. Many States have exercised their
“sovereign right to adopt in_ftheir] own Constitution[s]
individual liberties moré expansive than those conferred
by the Federal Constitution.” PruneYard Shopping Center
v. Robins, 447 U.S. 74, 81 (1980). Even where, as
here, charges brought under the Act merely duplicate a
State prosecution, the Act threatens individual tiberty be-
cause the rules of decision are provided by federal law
and therefore preempt state decisions to grant their citi-
zens more expansive fundamental liberties than those pro-
vided by the federal bill of rights.

ARGU MENT

A. The Constitution Grants Congress Only Limited Au-
thority To Define And Punish Criminal Activity

It is axiomatic that “[t]he Constitution created a Fed-
eral Government of limited powers.” Gregory v. Ash-
croft, 111 S. Ct. 2395, 2399 (1991); see also McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).
Accordingly, “our Constitution establishes a system of
‘dual sovereignty between the States and the Federal Gov-
ernment.” Gregory, 111 S. Ct. at 2399. As James
Madison wrote:

The powers delegated by the proposed Constitu-
tion to the federal government are few and defined.
Those which are to remain in the State governments
are numerous and indeiinite. . . . The powers re-
served to the several States will extend to all the

9

objects which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the
people, and the internal order, improvement, and
prosperity of the state.

The Federalist No. 45, at 296 (Isaac Kramnick ed. 1987)
(J. Madison); see also U.S. Const. amend. X (“The
powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.”).

By establishing a system of dual sovereignty and lim-
ited federal power, the framers sought to diffuse power
in order to protect the people from tyranny. As _ the
Court reaffirmed in Gregory, “[t}he ‘constitutionally man-
dated balance of power’ between the States and the Fed-
eral Government was adopted by the framers to ensure
the protection of ‘our fundamental liberties.’” 111 S. Ct.
at 2400 (quoting Atascadero State Hosp. v. Scanlon, 473
U.S. 234, 242 (1985) (quoting Garcia v. San Antonio
Metro. Transit Auth., 469 U.S. 528, 572 (1985) (Powell,
J.. dissenting) )); see also Coleman v. Thompson, 111
S. Ct. 2546, 2570 (1991) (Blackmun, J., dissenting)
(“federalism secures to citizens the liberties that derive
from the diffusion of sovereign power”). Thus, by divid-
ing power between the States and the federal government,
our Constitution “reduce[s] the risk of tyranny and abuse
from either front.” Gregory, 111 S. Ct. at 2400.°

* As James Madison wrote:

In a single republic, all the power surrendered by the people
is submitted to the administration of a single government; and
the usurpations are guarded against by a division of the gov-
ernment into distinct and separate departments. In the com-
pound republic of America, the power surrendered by the people
is first divided between two distinct governments, and then the
portion allotted to each subdivided among distinct and sepa-
rate departments. Hence a double security arises to the rights
of the people. The different governments will control each
other, at the same time that each will be controlled by itself.

The Federalist No. 51, at 321.

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1]

v. United States, 2143 U.S. 138, 144 (1909) (“there is
in the Constitution no grant . . . to Congress” of the
police power ).

To be sure, Congress's power to define and punish
criminal activity is not limited to these textually explicit
grants. At least since United States v. Coombs, 37 U.S.
(12 Pet.) 72, 7% (1838), the Court has recognized that
an offense may be created and “punished by congress,
under its general authority to make all laws necessary and
proper to execute their delegated constitutional powers.”
The numerous federal offenses contained throughout the
Uinited States Code are a strong testament to Congress's
broad power to criminalize activity under the necessary
and proper clause.

Nonetheless, Congress can criminalize activity under
the necessary and proper clause on/y when it is. pursuing
an end which is clearly within its enumerated powers."
See McCulloch, 17 U.S. (4 Wheat.) at 421, 423. Since
McCulloch, the Court has repeatedly reaffirmed that Con-
gress, in creating and punishing criminal offenses, cannot
exceed its delegated powers. For example, before con-
struing the criminal statute at issue in Coombs the Court

stated:

[I jt seems highly important, if not indispensable, to
say a few words as to the constitutional! authority of
congress to pass the same. For if, upon a just inter-
pretation of the terms thereof, congress have exceeded

* As the Court stated in McCulloch:
[Wie think the sound construction of the constitution must
allow to the national legislature that discretion, with respect
to the means by which the powers it confers are to be carried
into execution, which will enable that body to perform the
high duties assigned to it, in the manner most beneficial to
the people. Let the end be legitimate, let it be within the scope
of the constitution, and al] 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.) at 421.

their constitutional authority, it will become our duty
to say so, and to certify our opinion on the points
submitted to us, in favor of the defendant

37 US. (12 Pet.) at 75. See also Perez v. United States,
$02 U.S. 146, 146-47 (1971): United States v. Darby,
312 U.S. 100, 118 (1941): Hodges v. United States, 203
U.S. 1, 16-20 (1906).

Consistent with this principle, the Court has repeatedly
construed federal criminal statutes to confine Congress to
its consttutional powers. See, e.g., United States v. Bass,
404 U.S. 336, 347-51 (1971); United States v. Five
Gambling Devices, 346 U.S. 441, 446-49 (1953) (Jack-
son, J. jorned by Frankturter-& Minton, Coormbs,
37 U.S. (12 Pet.) at 75 (“{I]f the section admits of two
interpretations, one of which brings it within, and the
other presses it beyond, the constitutional authority of
congress, it will become our duty to adopt the former
construction; because a presumption never ought to be
indulged, that congress meant to exercise or usurp any
constitutional authority, unless that conclusion is forced
upon the court by language altogether unambiguous.” ).

Thus, in Bass the Court affirmed the reversal of a
conviction obtained under 18 U.S.C App. § 1202(a)
which prohibited a convicted felon from “receiviing},
possess|ing|, or transport{ing] in commerce or affecting
commerce any firearm.” 404 U.S. at 337-39. In
Bass, the United States neither alleged in the indictment
nor showed at trial that the firearms possessed by Bass
“had been possessed ‘in commerce or affecting com-
merce.” /d. at 338. Recognizing that “{a]jbsent proof of
some interstate Commerce nexus in each case, § 1202(a)
dramatically intrudes upon traditional state criminal juris-
diction,” the Court interpreted that statute to prohibit
conviction absent proof by the United States that the
gun Bass possessed “was moving interstate or on an :nter-
State facility, or if the possession affects commerce.” /d.
at 350.

13

i. The Commerce Clause Does Not Authorize Congress’s
Enactment Of The Gun-Free School Zones Act

As the foregoing demonstrates, Congress’s power to
criminalize activity under the commerce clause is limited
hy the scope of that power. Although this Court has
sanctioned a broad use of the commerce power, its deci
sions nonetheless make clear that the commerce clause
has real and substantial limits. Were it otherwise, it
would be meaningless to speak of a “Federal Govern
ment of limited powers.” See Gregory, 111 S. Ct. at

200

Accordingly, while Congress can regulate “activity that
is purely intrastate in character,” Fry v. United States,
421 U.S. $42, 547 (1975), that activity must, as the
LInited States acknowledges, see Pet. Br. 12, “‘so affect
interstate commerce, or the exertion of the power of
Congress over it, as to make regulation of [it] appropriate
means to the attainment of a legitimate end.” Perez \
United States, 402 U.S. 146, 151 (1971) (quoting
United States v. Wrightwood Dairy Co., 315 U.S. 110,
119 (1942)). As the Court noted in Wickard v. Filburn,
317 U.S. 111, 125 (1942), local activity may be regu
lated under the commerce power only “if it exerts a
substantial economic effect on interstate commerce.”
Accord Perez, 402 U.S. at 151-52; Katzenbach v. Mi
Clune. 379 U.S. 294, 302 (1964); Heart of Atlanta
Motel. Inc. v. United States, 379 U.S. 241, 258 (1964)
Where Congress regulates a class of activitics, which in
the aggregate substantially affects interstate commerce
“the courts have no power ‘to excise, as trivial, individual
instances’ of the class.” Perez, 402 U.S. at 154 (quoting
Maryland v. Wirtz, 392 U.S. 183, 193 (1968)). But
the Court has never gone so far as to “declare{| that
Coneress may use a relatively trivial impact on commerce
as an excuse for broad general reguiation of stale o1
private activities.” Wirtz, 392 U.S. at 196 n.27

The Court has also long made clear that Congress
cannot exercise authority not granted to it by the Con

14

stitution under the pretext of exercising its enumerated
powers. As the Court stated in McCulloch:

|Sjhould congress, under the pretext of executing its

powers, pass laws for the accomplishment of objects

not entrusted to the government|,| it would become

the painful duty of this tribunai, should a case

requiring such a decision come before it, to say,

that such an act was not the law of the land.
McCulloch, 17 U.S. (4 Wheat.) at 423. Thus, in order
to criminalize conduct under the commerce clause, Con-
cress Must be regulating interstate commerce. Congress
cannot, under the guise of regulating interstate commerce,
legislate beyond its delegated authority. And Congress’s
regulation of intrastate activity must reach activity that
has a real and “ ‘substantial economic effect on interstate
commerce.’” Perez, 402 U.S. at 152 (quoting Wickard,
317 U.S. at 125).

The Gun-Free School Zones Act plainly does not meet
these standards. The nature of the conduct it criminalizes
(simple possession of a gun in or near a school) has
no obvious connection to interstate commerce.’ The Act
itself. which was enacted as Section 1702 of the Crime
Control Act of 1990. P.L. 101-647, 104 Stat. 4844-45,
contains no findings concerning the effect of firearm pos-
session in the schools on interstate commerce. See id.
Nor did the report which accompanied the Crime Control
7 Bass suggests that Lopez’s conviction could be sustained if the
United States had proved that the firearm Lopez possessed had a
nexus to interstate commerce, See 404 U.S. at 350. Amici acknowl-
edge that the parties stipulated below that an agent of the Bureau of
Alcoho!, Tobacco and Firearms was prepared to testify that Lopez’s
firearm was manufactured outside of Texas. See Pet. App. 53a.
The indictment, however, did not allege that Lopez’s offense had
any nexus to interstate commerce. See id. Because an indictment
cannot be amended except by the grand jury itself, and this vari-
ance between the allegations of the indictment and this portion of
the government’s proof would be substantial, Lopez’s conviction
cannot be sustained on that ground. See Stirone v. United States
361 U.S. 212, 215-19 (1960). Accordingly, Lopez’s conviction can
only be sustained if gun possession in and around schools substan-
tially affects interstate commerce.

15

Act discuss the impact on interstate commerce caused
by firearms in the schools. See H.R. Rep. No. 101-681(1),
lOlst Cong., 2d Sess. 69 (1990), reprinted in 1990
U.S.C.C.A.N. 6472, Indeed, as the court of appeals
noted, the report did not “even mention the Gun-Free
School Zones Act.” Pet. App. 34a; see also H.R. Rep.
No. 101-681(1). Moreover, while the Act was the sub-
ject of a hearing by a House subcommittee, this hearing
does not remotely establish that firearms possession in the
schools has a substantial effect on interstate commerce.
Indeed, the legislative record indicates that Congress did
not view itself as doing anything other than regulating
violent criminals. See generally Gun-Free School Zones
Act of 1990: Hearing Before the Subcomm. on Crime of
the House Comm. on the Judiciary, 101st Cong., 2d Sess.
(1990) (Hearing).

It is noteworthy that the United States does not attempt
to support the Act based on the statistical evidence received
at the hearing. While these statistics unquestionably docu-
ment individual instances of human tragedy, this alone
does not render the underlying activity a permissible
end of Congress’s power to regulate interstate commerce.*®
See, e.g., Cohens, 19 U.S. (6 Wheat.) at 426 (“Con-
gress has no general right to punish murder committed
within any of the states.”). Rather, under our constitu-
tional scheme, “[t]he States possess primary authority for

* Amici Center to Prevent Handgun Violence eft a/. recount that
“sixty-five students and six school employees—-were killed with
guns at schools” and 201 persons were wounded during the aca-
demic years 1986-90. See Br. Am. Cur. Center to Prevent Handgun
Violence et a’. 19. But with the national population of students,
teachers, and employees exceeding fifty million people, see U.S.
Bureau of the Census, Statistical Abstract of the United States
1993 148 (1993) (Table No. 223); id. at 162 (Table No. 248), these
tragedies, even when aggregated over a four year period, do not
demonstrate a substantial effect on interstate commerce. Indeed.
statistics provided at the hearing indicated that fifteen States had
n® incidents and tha*® more than half the incidents occurred in only
six States. See Heering at 82-83.

16

defining and enforcing the criminal law.” FEnele, 456
U.S. at 128.

Rather than rely on the statistical evidence presented
at the hearing, the United States seeks to sustain” the
Statute by arguing that “[t]he economic consequences of
criminal behavior are substantial and, through the mech-
aumism of insurance, spread throughout the population.”
Pet. Br. 17 (citing United States v. Evans, 928 F.2d 858,
S62 (9th Cir. 1991)) (footnote. omitted), Contrary
to the United States’ suggestion, this “rather tenuous
nexus,” vans, 928 F.2d at 862, is insufficient to support
the broad police power which the United States urges
this Court to sanction. See Pet. Br. 44. Long before
this nation’s founding, insurers were underwriting the
perils associated with crime through life and fire insurance
policies. See George Richards, A Treatise on the Law of
Insurance, S$ 8-9 (2d ed. 1904). Nonetheless, the
spreading of risk through the mechanism of insurance has
never been viewed as being a sufficient justification for
the federalization of traditional intrastate crimes. And
for good reason: such @ principle would have no limit
and would negate the structural protections of our fed-
eral system.”

Amici understand the tragedy which each incident of
gun violence in the schools involves. But the tragedy is

*The Center to Prevent Handgun Violence also asserts that
because the aforementioned firearm incidents cost society approxi-
mately $33.5 million dollars over a four year period, Congress
would have been justified in “determin(ing| that gun possession
in and around schools affects interstate commerce.” See Br, Am.
Cur. Center to Prevent Handgun Violence et al, 20. Congress, of
course, made no such determination. In any event, when Congress
regulates purely intrastate activity, the standard is not merely
whether the activity affects commerce but whether it has a sub-
stantial economic effect on interstate commerce. See, ¢.g., Wickard,
317 U.S. at 125; Perez, 402 U.S. at 151-52. This cost ($8.5 million
annually) is approximately .00014% of the nation’s annual Gross
National Product of six trillion dollars, See Budget of the United
Staies Government: Fiseal Year 1994 6.

17

one of violence against individuals, not interstate com-
merce. Unquestionably the act of striking down a con-
vressional enactment is a serious one, to be taken only
when circumstances clearly warrant. But there are other
values at stake here as well, notably the preservation of
our federal system. Accordingly, where the conduct crim
inalized by Congress bears no apparent connection to
iferstate commerce, and where neither Congress in the
legislative process nor the federal government at trial has
shown the impact of the conduct on commerce, the con-
viction must be invalidated on, the ground that Congress
has exceeded its commerce power."

(. The United States’ Standard Of Review Requires The
Abdication Of Meaningful Judicial Review And Con-
flates The Standard For Determining The Validity Of
Legislative Means With That For Determining Whether
Legislation Is A Permissible End Of The Commerce
Power

Recognizing that Congress, in enacting the Gun-Free
School Zones Act, failed to make any findings regarding
the impact of gun possession in and around schools on

‘The United States also argues that Congress could rati
ally conclude that gun possession in the schools substantially affects
interstate commerce because gun violence interferes with learning
and the future productivity of students when they enter the wo-k
force. See Pet. Br. 19-25. While this cause and effect theory is not
implausib.e, like the insurance theory it is a principle without limit
and has no support in the legislative record. As a representative
the American Academy of Pediatrics testified, “Let me conclude by
making a plea for the need for continuing to collect data——and |
think that was also mentioned earlier this morning. The data
Scarce and sketchy.” Hearing at 52. This witnesa’s prepared re
marks stated

“iystematic and sustained attention to the problem has b
lacking. Part of the reason for this is the scarcity of dat
neerning the involvement of children in the gun epidem
and a lack of necessary detail in the data that are availab
The Acaden y urges Congress to take steps to ensure tl
proper records are kept, so that the gravity of the situation ca
be properly assessed

ld. at 59-60

18

interstate commerce, the United States argues that “the
congressional ‘finding’ can very properly be—and often
is—merely implicit in the enactment itself.” Pet. Br.
17 n.8. In support of its notion that courts should imply
such findings, the United States argues that “ ‘[t}he perti-
nent inquiry therefore is . . . whether Congress could
rationally conclude that the regulated activity affects inter-
state commerce,’ ” id. (quoting Hodel v. Indiana, 452 U.S.
314, 324 (1981)), and that “judicial inquiry into the
rationality of legislation ‘must be restricted to the issue
whether any state of facts either known or which could
reasonably be assumed affords support for it.” Pet. Br.
16 (quoting United States v. Carolene Products Co., 304
U.S. 144, 154 (1938) ) (emphasis added).

This argument, however, substitutes judicial surmise
for legislative factfinding and requires nothing less than
the abdication of meaningful judicial review. Moreover,
it rests on the faulty premise that the standard for review-
ing the rationality of legislative means is the same as that
for determining whether legislation constitutes a permissible
end of the commerce power. In this case the question is
not whether Congress has chosen an appropriate means
of carrying out a permissible goal, but whether Congress
has the power to act at all.

Contrary to the United States’ argument, the Court has
recognized the necessity of a meaningful standard of re-
view when called upon to decide whether congressional
regulation of purely intrastate activities is consistent with
the limits imposed by the commerce clause. Indeed, it is
precisely because congressional regulation of purely intra-
state activity (which has traditionally been the subject of
state regulation) involves the exercise of the commerce
power at its outer limits that a meaningful standard of re-
view is necessary. Otherwise, Congress would be left to
determine for itself the outer limits of its power. The
Court has thus recognized that:

Of course, the mere fact that Congress has said when
particular activity shall be deemed to affect com-
merce does not preclude further examination by this

19

Court. But where we find that the legislators, in
light of the facts and testimony before them, have a
rational basis for finding a chosen regulatory scheme
necessary to the protection of commerce, our inves-
tigation is at an end.

Katzenbach, 379 U.S. at 303-04. -See also Hodel, 452
U.S. at 311 (Rehnquist, J., concurring) (“[S]imply be-
cause Congress may conclude that a particular activity
substantially affects interstate commerce does not neces-
sarily make it so. Congress’ findings must be supported
by a ‘rational basis’ and are reviewable by the courts.”’).
Thus, in reviewing congressional regulation of purely in-
trastate activity, the Court has engaged in a searching
review of the legislative record to determine whether a
rational basis exists for concluding that regulated activity
has a substantial effect on interstate commerce. See
Hodel, 452 U.S. at 277-80: Perez, 402 U.S. at 155-56;
Katzenbach, 379 U.S. at 299-301:\ Heart of Atlanta
Motel, 379 U.S. at 252-53.

As these cases demonstrate, when Congress seeks to
regulate purely intrastate activity, it must provide courts
with a record which shows that the regulated activity has
a substantial effect, and not just a trivial impact, on inter-
State commerce. In the absence of such a record, review-
ing courts simply cannot determine whether Congress is
exercising powers which the Constitution granted it.

By suggesting that courts should, in effect. speculate as
to why Congress might have enacted a particular piece
of legislation, the United States argues for no less than
the abdication of the duty of federal courts. recognized
since McCulloch and Coombs, to invalidate legislation
which exceeds Congress’s constitutional authority. See,
e.g., McCulioch, 17 U.S. (4 Wheat.) at 423; Coombs,
37 U.S. (17 Pet.) at 75. The United States’ reasoning
is truly extraordinary given that one of the principal jus-
tifications for the judiciary’s deference to legislatures is
the latter’s superior resources and factfinding ability. See,
e.g., City of Akron v. Akron Center for Reproductive
Health, 462 U.S. 416, 456 n.4 (1983) (O’Connor, J.,
dissenting). .

20

The United States’ position would result in courts
upholding congressional action even when, in reality, the
regulated activity has no substantial effect on commerce.
And its practical consequence is to transform the com-
merce clause into a general police power, a power which
the Constitution clearly did not grant to Congress. See
Keller, 213 U.S. at 144; Cohens, 19 U.S. (6 Wheat.) at
428. The United States all but admits as much. Reason-
ing that because “[t]he economic consequences of crimi-
nal behavior are substantial and, through the mechanism
of insurance, spread throughout the population,” the
United States argues that “Congress could rationally con-
clude that incidents of violent crime, wherever they occur,
can be expected to affect the functioning of the national
economy.” Pet. Br. 17 (footnote omitted); see also id.
at 44 (“we believe that violent crime in general imposes
sufficient burdens on interstate commerce to permit Con-
gress very broad latitude to enact measures rationally
designed to reduce its incidence” ).

If, as the United States argues, Congress need only
be capable of rationally concluding that particular activ-
ity “can be expected” to “affect the functioning of the na-
tional economy,” id. at 17, then every crime can be
federalized. Indeed, Congress could well make double
parking a federal offense. See, e.g., James L. Buckley,
Introduction—Federalism and the Scope of the Federal
Criminal Law, 26 Am. Crim. L. Rev. 1737, 1738 (1989)
(“today it is virtually impossible to conjure up any hu-
man activity . . . that some court will not find to burden
interstate commerce” )."

11 Judge Buckley suggested that daydreaming might be a possible
exception to his comment that almost all human activity will be held
to burden interstate commerce. See 26 Am. Crim. L. Rev. at 1738.
But under the United States’ standard of review, a court reviewing
a congressional prohibition of daydreaming would likely have to
sustain the statute. It is, of course, entirely rational! to assume
that daydreaming reduces economic productivity and thus has a
substantial effect on interstate commerce. See Pet. Br. 16 (argu-
ing that “judicial inquiry into the rationality of legislation ‘must
be restricted to the issue whether any state of facts either known
or which could reasonably be assumed affords support for it’ ”)

Savane

ee

21

The decisions of this Court, while admittedly establish-
ing a principle of judicial deference to congressional en-
actments under the commerce power, have never gone so
far as to suggest that courts should simply assume that a
state of facts exists which supports a conclusion that a
class of activities substantially affects interstate commerce.
Thus, while the Court stated in Katzenbach that formal
findings are not necessary to sustain legislation enacted

‘under the commerce clause, see 379 U.S. at 299, there

(as well as in the companion case, Heart of Atlanta
Motel), Congress had made an extensive legislative
record which was “replete with testimony of the burdens
placed on interstate commerce by racial discrimination in
restaurants.” IJd.; see also Heart of Atlanta Motel, 379
U.S. at 252 (noting that “[w]hile the Act as adopted
carried no congressional findings the record of its passage
through each house is replete with evidence of the burdens
that discrimination by race or color places upon interstate
commerce”); id. at 253 (“voluminous testimony presents
overwhelming evidence that discrimination by hotels and
motels impedes interstate travel” ).

Likewise, the Court’s dictum in Perez that Congress
need not “make particularized findings in order to legis-
late,” 402 U.S. at 156, does not support the United
States. Congress’s authority to enact the loansharking
Statute challenged in Perez was amply supported by an
extensive legislative record which included hearings and
a report detailing loansharking’s substantial effect on in-
terstate commerce. /d. at 155-56. The Court’s dictum
merely recognized that, under these circumstances, the
findings made by Congress were pro forma in nature.
Perez thus provides no authority for the United States’

(quoting Carolene Products, 304 U.S. at 154). The absence of
any legislative record evidencing daydreaming’s substantial effect
on interstate commerce would be no bar either, so long as a study
or article could be found which would rationally support the con-
clusion that daydreaming substantially affects interstate com-
merce. See Pet. Br. 17 n.9 (quoting Ruttenberg, The Limited
Promise of Public Health Methodologies To Prevent Youth Vio-
lence, 103 Yale L.J. 1885, 1887 n.11 (1994) ).

22

assertion that courts should invent a rational basis for
concluding that a regulated activity substantially affects
interstate commerce.

Notwithstanding the Perez dictum, amici respectfully
submit that Congress must make findings when it crim-
inalizes purely intrastate conduct. Because decisions to
regulate such activity have been traditionally the province
of the States, findings serve a purpose analogous to the
clear statement rule by ensuring that Congress “has in fact
faced, and intended to” bring about “a significant change
in the sensitive relation between federal and state criminal
jurisdiction.” Bass, 404 U.S. at 349. But “simply because
Congress may conclude that a particular activity sub-
stantially affects interstate commerce does not necessarily
make it so.” Hodel, 452 U.S. at 311 (Rehnquist, J.,
concurring). A legislative record is therefore also required
to establish that the intrastate activity Congress is crimi-
nalizing does indeed have a substantial effect on interstate
commerce. A record thus serves the critical function of
demonstrating that Congress has not exceeded its constitu-
tional authority.”

Ignoring the critical purpose that both findings and
a record serve in judicial review of whether Congress is
exceeding its powers, the United States argues that “judi-
cial inquiry into the rationality of legislation ‘must be
restricted to the issue whether any state of facts either
known or which could reasonably be assumed affords sup-
port for it.” Pet. Br. 16 (quoting Carolene Products,
304 U.S. at 154). This argument is flawed for several
reasons.

As an initial matter, amici note that the statute at issue
in Carolene Products prohibited the shipment of filled
milk in interstate commerce. 304 U.S. at 146 & n.1. It

12 This is of particular importance where, as here, the activity
Congress is criminalizing touches upon another area of traditional
state and local authority—education. See, e.g., Board of Ed. v.
Rowley, 458 U.S. 176, 208 n.30 (1982); Epperson v. Arkansas, 393
U.S. 97, 104 (1968).

23

therefore clearly was a permissible end of the commerce
power.

Of greater significance, the United States simply con-
flates the standard for reviewing legislative means with that
for determining whether the legislation constitutes a permis-
sible end of congressional power. The two, however, are
not the same. As the Court noted in McCulloch, the
necessary and proper clause vests in the Congress broad
discretion to enact “all means which are appropriate,
which are plainly adapted to” a “legitimate” end. 17
U.S. (4 Wheat.) at 421. Courts must thus grant Con-
gress broad deference in reviewing the means it has
adopted in pursuit of its constitutionally authorized ends.
But such deference does not extend to reviewing the
question of whether Congress has acted within the scope
of its constitutionally delegated powers. As stated above,
the Constitution does not grant Congress broad discretion
to legislate under the authority of a police power for
the general welfare, see Keller, 213 U.S. at 144, or to
punish felonies generally. Cohen, 19 US. (6 Wheat.) at
428. Rather, its authority is limited to its delegated
powers and those “end[{s]” which are “legitimate, [and]
within the scope of the constitution.” McCulloch, 17
U.S. (4 Wheat.) at 421. Extreme and unwarranted defer-
ence to Congress on the question of ends, rather than
means, is antithetical to a constitutional system which
“created a Federal Government of limited powers.”
Gregory, 111 S. Ct. at 2399.

While the Court has characterized the standard for
reviewing whether Congress is pursuing a permissible end
as requiring “defer[ence] to a congressional finding that
a regulated activity affects interstate commerce, if there
is any rational basis for such a finding,” Hodel v. Vir-
ginia Surface Mining & Reclamation Ass'n, 452 US.
264, 276 (1981), it has likewise noted that this rational
basis must be supported by the “facts and testimony”
before Congress. See, e.g., Katzenbach, 379 U.S. at 303-
04. Consistent with this recognition, the Court frequently
has stated that “the mere fact that Congress has said

24

when particular activity shall be deemed to affect com-
merce does not preclude further examination by this
Court.” /d. at 303. Thus, in reviewing regulations of
intrastate activity under the commerce clause, the Court
has engaged in a searching review of the legislative record
to determine whether it rationally supports the conclusion
that the regulated activity has a substantial effect on
interstate commerce. See id. at 299-301; Hodel, 452 US.
at 277-280; Perez, 402 U.S. at 155-56; Heart of Atlanta
Motel, 379 U.S. at 252-53.”

As these authorities demonstrate, the United States is
incorrect in arguing that, in the context of determining
whether legislation is within the permissible ends of the
commerce power, rational basis review is satisfied by
judicial speculation as to whether a state of facts might
exist which would support Congress’s exercise of this
power. In the context of determining whether legislation
is within the scope of the commerce power, the rational
basis standard requires that Congress have considered
evidence that demonstrates that the regulated activity
has a substantial effect on commerce. Thus, where in
the course of legislative deliberations, conflicting evidence
is presented as to a regulated activity’s substantial effect
on interstate commerce, a court must defer to a con-
gressional finding that it has such an effect.* But where

13[n Hodel, for example, the Court noted that “[t]he Surface
Mining Control and Reclamation Act became law only after six
years of the most thorough legislative consideration” and that
“Tejommittees of both Houses of Congress held extended hearings
during which vast amounts of testimony and documentary evidence
about the effects of surface mining on our Nation’s environment
and economy were brought to Congress’s attention.” 452 U.S. at
277-79; see also Perez, 402 U.S. at 155-56 (detailing legislative
record establishing loansharking’s substantial effect on interstate
commerce).

14 Likewise, where, as in Katzenbach and Heart of Atlanta Motel,
the legislative record extensively documents that a regulated ac-
tivity has a substantial effect on interstate commerce such that
any findings would be pro forma in nature, it may be appropriate
to imply a finding.

at

¥
5
?

25

Congress has failed to make an adequate record, the
Standard does not allow a court to speculate as to the
existence of a state of facts which would support Con-
gress’s power to act.”

To hold otherwise would create a strong incentive for
Congress to refrain from factfinding altogether. This is
hardly a desirable result given that factfinding is likely
to provide Congress with additional information as to
the scope of a purported problem and_ thus indicate
whether it substantially affects interstate commerce, and
if it does, what means are appropriate for addressing it.
And contrary to the assertions contained in the brief
amicus curiae filed by various members. of Congress, see
Br. Am. Cur. 16 Members of the United States Senate
et al. 2, it is hardly an onerous requirement to place on
Congress given that it routinely holds hearings and makes
findings. See, e.&., Hodel, 452 U.S. at 277-80; 30 U.S.C.
§ 201 (setting forth congressional findings showing sur-
face mining’s substantia] effect on interstate commerce) ;
Perez, 402 USS. at 155-56; Consumer Credit Protection
Act, Pub. L. 90-321. § 201 (setting forth congressional
findings showing loansharking’s substantial effect on in-
terstate commerce ) ."*

'’ The United States confuses two distinct principles jn arguing
that FCC v. Beach Communications, 113 S.Ct. 2096 (1993), is
applicable here. Legislative classifications such as those at issue in
Beach are reviewed more deferentially because of the broad discre-
tion vested in legislatures to choose “the means by which powers
[constitutionally] confer[réd] are to be carried into execution.”
McCulloch, 17 U.S. (4 Wheat.) at 421. But because Congress does
not possess a general Police power, “the connection with interstate
commerce is itself a jurisdictional prerequisite for any substantive
legislation by Congress under the Commerce Clause.” Hodel, 452
U.S. at 311 (Rehnquist, J., concurring). Accordingly, “Congress
must show that the activity it seeks to regulate has a susbtantial
effect on interstate commerce.” Jd. at 313.

16 Amici note that after the court of appeals’ decision, the Senate
passed legislation which amended Section 922(q) to include find-
ings. See Pet. Br. 6 n.2. These findings, however, are entitled to
no weight because they are not supported by any record. Moreover,
this post hoc procedure does not Satisfy the Constitution’s require-

26

D. Because The Federalization Of Traditional State
Crimes Imposes Substantial Costs On The Federal-
State Balance And Rights Granted Under State Law,
Courts Properly Require Congress To Show That
Regulated Activity Has A Substantial Effect On Inter-
state Commerce

The United States also dismisses the court of appeals’
reliance on the line of cases, beginning with Bass, in which
this Court has held that “unless Congress conveys its
purpose clearly, it will not be deemed to have significantly
altered the federal-state balance.” See Pet. Br. 27-31
(quoting Bass, 404 U.S. at 349). Noting that “Congress
has far greater latitude . . . when its Acts are applied to
the activities of private parties who are incidentally sub-
ject to concurrent state regulation” rather than to the
States as States, Pet. Br. 28, the United States argues that
“Congress is not obliged to explain its reasons for legislat-
ing, to justify its decisions with findings, or to identify the
constitutional source of its authority to act.” Jd. at 30
(citation and footnote omitted). This reasoning ignores
the significant costs imposed on the federal-state balance
by congressional decisions to federalize traditional state
crimes, including the enactment of the Gun-Free School
Zones Act.”

First, in amici’s own experience, enactments such as
the Gun-Free School Zones Act interject federal officials
into longstanding and close working relationships which

ment of passage by both Houses and presentment to the President.
See U.S. Const. art. I, §7; INS v. Chadha, 462 U.S. 919, 945-51,
954 n.18 (1983).

17 The court of appeals recognized that the clear statement rule
is a rule of statutory construction. See Pet. App. 48a. Nonetheless,
the principle which underlies the rule—that under our constitu-
tional scheme, States are also sovereigns entitled to govern “ ‘all
the objects which, in the ordinary course of affairs, concern the
lives, liberties, and properties of the people, and the internal order,
improvement, and prosperity of the State,’” Gregory, 111 S.Ct.
at 2399 (quoting The Federalist No. 45, pp. 292-93 (C. Rossiter
ed. 1961) (J. Madison) )—likewise suggests that courts must have
a meaningful way of determining whether Congress has exercised
power in excess of its constitutional limits.

27

exist between local school administrators, police and pros-
ecutors. The friction caused by federalizing traditional
state crimes might be tolerable—assuming these crimes
had a substantial effect on interstate commerce—if the
federal government had the resources and commitment
to prosecute these cases. See Roger J. Miner, Federal
Courts, Federal Crimes, and Federalism, 10 Harv. J.L. &
Pub. Pol’y, 117, 126 (1987) (noting that federalization of
state crimes has led to “unseemly ‘turf’ wars”). But as
Judge Miner has also noted, “federal law enforcement
agencies, prosecutors and courts cannot keep pace with
the proliferation of federal crimes.” Jd. It is not clear
the federal government has the resources to prosecute
such criminal behavior with any regularity. See Hearing
at 72-73 (noting that there are over 100,000 public
schools nationwide and only 1,800 ATF agents). Insofar
as the federalization of traditional state crimes offers the
promise of a federal solution, it may very well induce
complacency in the citizenry. Cf. Miner, Federal Courts,
Federal Crimes, and Federalism, 10 Harv. J.L. & Pub.
Pol’y at 125.”

18 The federalization of traditional state crimes has also been
extensively criticized for the potential burdens it places on the
federal courts. See Miner, Federal Courts, Federal Crimes, and
Federalism, 10 Harv. J.L. & Pub. Pol’y at 118 (noting that with
the federalization of traditional state crimes, “we hive the mak-
ings of a glut that threatens to overwhelm the federal courts—
courts that were designed to handle a limited number of crimes
affecting national interests”) ; Henry J. Friendly, Federal Jurisdic-
tion: A General View 58 (1973) (urging that “[t]he question
whether federa) criminal prosecutions have not greatly outreached
any true federal interest . . . deserves the most serious examina-
tion, particularly in light of the tremendous increase in criminal
filings....”). Cf. Report of the Federal Courts Study Committee
35-37 (1990) (criticizing the growth of federal criminal filings—
particularly federal narcotics cases which could be prosecuted as
effectively under state law—and noting that “[b]Joth the principles
of federalism and the long-term health of the federal judicial sys-
tem require returning the federal courts to their proper, limited
role in dealing with crime”); Miner, Federal Courts, Federal
Crimes, and Federalism, 10 Harv. J.L. & Pub. Pol’y at 124-25
(noting that between 1984 and 1985, “the Southern District of

28

More significantly, federalizing traditional state crimes
only serves to diminish the political accountability of state
and local governments. Such legislative action encour-
ages the citizenry to run to Congress to address the latest
cause of the day, no matter how tenuous its nexus to
interstate commerce and no matter how ill-suited the sub-
ject matter is to being regulated through uniform federal
rules. In the process, it reduces state and local legisla-
tures to the role of “bench-players” in the governing
process. This is truly a regrettable consequence for a
constitutional system which has catalogued the many ben-
efits of federalism as including, inter alia, “a decentralized
government that will be more sensitive to the diverse
needs of a heterogenous society,” the “increase[d] oppor-
tunity for citizen involvement in democratic processes,”
and the “allow[ance] for more innovation and experimen-
tation in government.” Gregory, 111 S.Ct. at 2399 (cita-
tions omitted).

The federalization of traditional state crimes also
diminishes the accountability of local law enforcement
officials. As Judge Miner has written:

The citizenry increasingly has been conditioned to
turn to federal law enforcement and to the federal
courts as the first line of defense against anti-social
conduct. What we are witnessing is an abdication
of responsibility for self-government... . In the face
of municipal corruption, it is easy to send for the
‘federals.” If narcotics are sold on the street corners
of a major city, it is a simple matter to invoke high-
profile federal criminal prosecution. When loan
sharks and racketeers infest a municipality, local
law enforcement efforts can be relaxed if federal help
is on the way.

New York sustained an increase in its total criminal caseload of
51.5%, from 695 to 1,053 cases,” and asking “[f]rom whence are
to come the necessary court facilities and personnel?’’).

These and other problems created by the federalization of tradi-
tional state crimes were extensively discussed at a conference
held by the U.S. Attorney General on March 7, 1994.

29

But something is lost in the process—the traditions
of democratic self-government and of individual
involvement and neighborly concern that have been
the hallmarks of our society.

Federal Courts, Federal Crimes, And Federalism, 10
Harv. J.L. & Pub. Pol’y at 127; see also Friendly, Federal
Jurisdiction: A General View at 58 (“Is it right to have
sO many areas where local law enforcement officers can
neglect their responsibilities on the basis of an expectation
that the ‘federals’ will do the job?”).

While the aforementioned consequences of federalizing
traditional state crimes are serious enough to require that
Congress demonstrate that it is not acting beyond its
delegated powers, even more significant is the threat to
state constitutional protections of individual rights posed
by enactments such as the Gun-Free School Zones Act.
This threat exists, even where, as here, charges brought
under the Gun-Free School Zones Act merely duplicate
a state prosecution. See Pet. App. 2a n.1.

Because the Gun-Free School Zones Act is a federal
statute, prosecutions brought under it are governed by
federal law. But as the Court has frequently recognized,
the States possess the “sovereign right to adopt in [their]
own Constitution[s] individual liberties more expansive
than those conferred by the Federal Constitution.” Prune-
Yard Shopping Center v. Robins, 447 U.S. 74, 81 (1980).
See also Oregon v. Hass, 420 U.S. 714, 719 (1975);
Sibron v. New York, 392 U.S. 40, 60-61 (1968); Cooper
v. California, 386 U.S. 58, 62 (1967); Latzer, State
Constitutions and Criminal Justice 2-5 (1991); Brennan,
State Constitutions and the Protection of Individual
Rights, 90 Harv. L. Rev. 489, 491 (1977). Across a
wide range of criminal law issues, many States have
adopted more expansive interpretations of individual
rights under their state constitutions and statutory law
than is required by the federal constitution.” See gen-

19 As Justice Brennan has noted, the “[r]jediscovery by state
supreme courts of the broader protections afforded their own
citizens by their state constitutions . . . is probably the most

30

erally Latzer, State Constitutions and Criminal Justice;
Brennan, State Constitutions and the Protection of In-
dividual Rights, 90 Harv. L. Rev. at 498-501.

State decisions to provide their citizens with constitu-
tional and statutory protections which exceed those of the
federal constitution are surely “decision[s] of the most
fundamental sort for a sovereign entity.” Gregory, 111
S.Ct. at 2400. It is, after all, “[o]ne of the first duties of
government” to protect the civil liberties of its citizens.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803). Yet such state-created protections are, in effect,
preempted in any prosecution brought under the Gun-
Free Schoo! Zones Act because federal and not state law
provides the rules of decision. Thus, while the United
States simply ignores the threat to state sovereignty and
protections of individual rights posed by the federalization
of traditional state crimes, see Pet. Br. 27-32, that threat
compellingly demonstrates why Congress must be required
to establish that conduct it has criminalized has a sub-
stantial effect on interstate commerce. Requiring Con-
gress to make this showing is a small price to pay for
preserving our Constitution.

As the foregoing demonstrates, the court of appeals
properly held that courts should not “simply assume that
the concededly intrastate conduct [which Congress pro-
hibited here] substantially affects interstate commerce.”
Pet. App. 50a-5la. As amici have explained above, if
Congress is to criminalize intrastate activity, it must make
a record to show that the activity has a substantial effect
and not just a trivial impact on interstate commerce.
Because Congress failed to do so here, its enactment of
the Gun-Free School Zones Act was beyond its delegated
powers.

CONCLUSION

The judgment of the court of appeals should be
affirmed.

important development in constitutional jurisprudence of our
times.” Nat’l L.J., Sept. 29, 1986 (Special Supplement), at S-1.

BARRY FRIEDMAN
VANDERBILT UNIVERSITY

SCHOOL OF LAW
Twenty-first Avenue South
Nashville, Tennessee 37209
(615) 322-2154

Of Counsel

July 19, 1994

31

Respectfully submitted,

RICHARD RUDA *

JAMES I, CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.,
Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the
Amici Curiae

la

APPENDIX

State Statutes Prohibiting Gun Possession In Schools And
On School Property:

1994 Ala. Acts 817, § 1
1994 Ariz. Sess. Laws 109, § 1
Ark. Code Ann. § 5-73-119(a){2) (Michie 1993)
/ Cal. Penal Code § 626.9 (West 1994)
Colo. Rev. Stat. § 18-12-105.5 (1993)
Conn. Gen. Stat. Ann. § 53a-217b (West 1994)
Ga. Code Ann. § 16-11-127.1 (Michie 1992)
Fla. Stat. Ann. § 790.115 (West 1994); Fla. Stat.
Ann. § 810.095 (West 1994)
Idaho Code § 18-3302D (1994)
Ind. Code Ann. § 35-47-9-2 (Burns 1994)
Kan. Stat. Ann. § 21-4204(a)(4) (1993)
1994 Ky. Acts 391, § 1
Me. Rev. Stat. Ann. tit. 20-A, § 6552(1) (West
1993)
Md. Ann. Code art. 27, § 36A(a) (1993)
Mass. Ann. Laws ch. 269, § 10(j) (Law. Co-op.
1992)
Mich. Comp. Laws Ann. § 750.234d (1994)
Minn. Stat. § 609.66 Subd. Id (1993)
Miss. Code Ann. § 97-37-17 (1993)
Mo. Ann. Stat. § 571.030.1(8) (Vernon 1994)
1994 Neb. Laws 988, § 6
Nev. Rev. Stat. Ann. § 202.265 (Michie 1992)
N.J. Stat. Ann. § 2C:39-5(e) (West 1994)
N.M. Stat. Ann. § 30-7-2.1 (Michie 1994)
N.Y. Penal Law § 265.01(3) (McKinney 1994)
N.C. Gen. Stat. § 14-269.2 (1993)
N.D. Cent. Code § 62.1-02-05(1) (1993)
Ohio Rev. Code Ann. § 2923.122 (1993)
Okla. Stat. Ann. tit. 21, § 858 (West 1994); Okla.
Stat. Ann. tit. 21, § 1280.1 (West 1994)
Or. Rev. Stat. § 166.370 (1994)
Pa. Stat. Ann. tit. 18, § 912 (1993)
R.I. Gen. Laws § 11-47-60 (1993)

ee

deme Tete

Fe ee me tn CR EE a LER nati th ale Le te alate ele Ce nia eS

2a

S.C. Code Ann. § 16-23-430 (Law. Co-op. 1993)
S.D. Codified Laws Ann. § 13-32-7 (1994)

Tenn. Code Ann. § 39-17-1309 (1993)

Tex. Penal Code Ann. § 46.04(a)(1) (West 1993)
Utah Code Ann. § 53A-3-502 (1994)

Vt. Stat. Ann. tit. 13, § 4004 (1993)

Va. Code Ann. § 18.2-308.1 (Michie 1994)

Wash. Rev. Code § 9.41.280 (1992)

W.Va. Code § 61-7-lla (1994)

State Statutes Establishing Gun-Free School Zones:

Ill. Ann. Stat. ch. 720, para. 5/24-1 (Smith-Hurd
1994)

La. Rev. Stat. Ann. § 14:95.2 (1994)

Wis. Stat. Ann. § 948.605 (1993)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1197%3A18. Public record. Not legal advice.