Amicus Curiae Brief — United States v. Lopez

27 3 ir aE: oto en ae]

F] Beoveirn court, U.S

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NO. 93-1260 ii UL -19 1994

In The

Supreme Court of the Gnited States

OCTOBER TERM, 1993

UNITED STATES OF AMERICA,

Petitioner,

Vv.

ALFONSO LOPEZ, JR.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF TEXAS JUSTICE FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

Professor Clayton Trotter* David G. Wille

Texas Justice Foundation 645 Post Oak Drive

. 8122 Datapoint Dr., Suite 906 Plano, Texas 75025

San Antonio, Texas 78229 (214) 527-5907

(210) 614-7157

Counsel for Amicus Curiae

July 19, 1994 *Counsel of Record

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ...........: 1

SUMMARY OF ARGUMENT ............... 2

Ps OO Tee OEE EE TEEPE ET EOL 5

I. THE COMMERCE POWER DOES NOT

EXTEND TO INTRASTATE ACTIVITIES

THAT HAVE A TRIVIAL IMPACT ON

INTERSTATE COMMERCE ......... 5

A. The Overreaching Construction of the

Commerce Clause Urged By the United

States Emasculates the Constitutional

Text and Ignores the Intent of the

COMMMGTOS FOWES 2. cc ccc tc escces 5

1. Text of Commerce Clause ..... 6

2. Text of Other Constitutional

5 SE EE aan ean ee eae 8

3. Interpretation of Other

Enumerated Powers .......... 4

4. Intent of Commerce Clause .... 10

Structure of the Constitution Suggest a

Narrow Interpretation of the Commerce

GD. iui eWkae bos oObdee whee 1]

B. Federalist Values Reflected in the

C. The Necessary and Proper Clause Does

Not Expand the Enumerated Powers of

Congress Under Article I, Section 8... 13

.

II.

III.

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........... 21

A. Rational Basis Review Makes

Congress the Arbiter of Its Own

FOU ons v.80k<edk ieee eek 21

B. Heightened Scrutiny Is Appropriate

When Considering the Reach of the

Commerce POW acs cc dk dace ves 25

THIS CASE PRESENTS A PROPER

OCCASION TO REEXAMINE

PRECEDENT UNDER THE COMMERCE

CLARE oct) ct) cereale 29

-ji-

TABLE OF AUTHORITIES

CASES

A.L.A. Schechter Poultry Corp. v. United States, 295

SE aos vb oh e's 4 ab 040-0 008K 4 as 26

Baldwin v. GAF Seelig, Inc., 294 U.S. 511 (1935) . 11, 27

Buckley v. Valeo, 424 U.S. 1 (1976) ............. 24

Cooley v. Board of Wardens, 53 U.S. (12 How.)

EE a a 25

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163

i nia ake G06 Bn wee ca U Eee awk «0 8, 11

Dean Milk Co. v. City of Madison, 340 U.S. 349

EES SEL ee 28

Dolan v. Tigard, 1994 U.S. Lexis 4826, No. 93-518

A Bs Ds od whoo as ve oe heed dee 30

FCC v. Beach Communications, Inc., 113 S. Ct. 2096

ET Ee NS oc is hk ae ne be dn. 23

Garcia v. San Antonio Metro. Transit Authority,

469 U.S. 528 (1985) ........ 10, 11, 12, 22, 28, 29

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1

MMe ree ah yh 6t ca eke wens <8 6, 7, 8, 25

Glidden v. Zdanok, 370 U.S. 530 (1962) ......... 17

Great Atlantic and Pacific Tea Co. v. Cottrell, 424

En «sve sake neue vee ve ves 25, 26

Gregory v. Ashcroft, 111 S. Ct. 2395 (1991) ..... 12, 13

Hodel v. Virginia Surface Min. & Reclam. Ass’n., 452

oo ES 10, 14, 21, 26

Hughes v. Oklahoma, 441 U.S. 322 (1979) ... 11, 27, 28

Hunt v. Washington State Apple Advertising

Comm’n, 432 U.S. 333 (1977) ............ 27, 28

I. N. S. v. Chadha, 462 U.S. 919 (1983) ..... 22, 24, 25

Kassel v. Consolidated Freightways Corp., 450 U.S.

Ee ai CL Ee bl d's wooo e.0it'e 6 We 28

Kinsella v. Singleton, 361 U.S. 234 (1960) ... 19, 20, 24

-ili-

Marbury v. Madison, 5 U.S. (1 Cranch) 137

Cs b.0bb.e5 0o ee ca eee eee een 2, 3, 9, 23, 24

Maryland v. Wirtz, 392 U.S. 183 (1968) .......... 14

McCulloch v. Maryland, 17 U.S. (4 Wheat.)

ae a 6 veek eeneee ease es 14, 16, 17, 18

NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1

See a an Can k Saber eee eee raha 26

New York v. United States, 112 S. Ct. 2408 (1992) 13, 29

Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827) . 29

Oregon v. Mitchell, 400 U.S. 112 (1970) ........ 22, 23

Palsgraf v. Long Island Railroad Co., 248 N.Y. 339

ot A PS re ee er Pe re 22

Pike v. Bruce Church Inc., 397 U.S. 137 (1970) .... 28

Reid v. Covert, 354 U.S. 1 (1957)

es ah aes aed 6, 10, 18, 19, 20, 24, 30

Solorio v. United States, 483 U.S. 435 (1987) ...... 10

United States v. Darby, 312 U.S. 100

2 rr rer tr er ee eee 3, 14, 16

United States v. Lopez, 2 F.3d 1342

i. Pe «4 ace ebdeeaue e's 5, 9, 22, 27, 29

United States v. Wrightwood Dairy, 315 U.S. 110

1. GARREERRES IS sac Ae ete Can sn et 14

Wickard v. Filburn, 317 U.S. 111 (1942).......... 26

STATUTES

ee en Oe re ae ae ows 17

ee en oe ae bk wee 5

oS eee wed ees 4

ee ve ck kee weeueeee 9

Se a a dc oa eee heeeeee cee 9

i fo 84 | eS) See 10, 18, 19, 20

-jvV-

MISCELLANEOUS

Richard A. Epstein,

Power, 73 Va. L. Rev. 1387, 1389

bo: RP roy ye oe ore 6, 7, 8, 11, 12

The Federalist, No. 7 (Alexander Hamilton) 7

(saene Si. Codie O6., TOGE) ciccccccccceccees 11

The Federalist, No. 17 (Alexander Hamilton)

Coetar Gn is ED oo kb och one ees 12

The Federalist, No. 22 (Alexander Hamilton)

(Jacob E. Cooke ed., (1961) ........ccccee. 11

The Federalist, No. 33 (Alexander Hamilton)

CAUSE ies GD OR ED osc 6 ck doe 60 bes 15

The Federalist, No. 42 (James Madison) (Jacob

i tn PE Greg bk oo 60-0 6s dew 9

The Federalist, No. 44 (James Madison)

CPOGGD Te. GOOD OR, THOED 6k dc cccccccccus 15

The Federalist, No. 45 (James Madison)

(acod BE. Cooke; od., 1961)... cccccccecs 12

The Federalist, No. 46 (James Madison)

(JacoD EB. Cooke, od., 1961) 0... ccc vcccues 11

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

NO. 93-1260

UNITED STATES OF AMERICA,

Petitioner,

v.

ALFONSO LOPEZ, JR..,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF TEXAS JUSTICE FOUNDATION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

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

a

2.

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

SEE RE RSE Ne

en oN en |

4

enumerated powers under Article I have some relationship

to interstate commerce.

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 liberties.

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 spher

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.

-4.

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.

rs

ARGUMENT

I, THE COMMERCE POWER DOES NOT EXTEND

TO INTRASTATE ACTIVITIES THAT HAVE A

TRIVIAL IMPACT ON INTERSTATE

COMMERCE,

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 (Sth 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, § 8,

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

interstafé 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.

L____ 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 Seope 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,

ro

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. /d. 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.” /d. 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 aithough inspection laws

may have a “considerable influence on commerce,” the

NN

-8-

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 Clause

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-

94. 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 T f Other Constitutional Provisi

The United States’ interpretation of the Commerce

Clause would make numerous other constitutional

provisions meaningless. Extending the Commerce Clause

| The original definition of commerce in Gibbons does not

render the three categories of commerce cither redundant or

unnecessary. Epstein, supra, at 1394.

——————

-9-

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

Constitution meaningless. 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 Staies also does not comport

with the narrow interpretation given to other enumerated

powers under Article 1. The most analogous Article I

power in terms of its scope is the power “[t]o make rules

* ‘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.

-10-

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. /d. at 447. Similarly, Congress’ power under

the Commerce Clause is plenary. E.g., Hodei v. Virginia

Surface Min. & Reclam. Ass’n., 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.” Jd. 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); see

—— ee

it.

also Id. at 563 n.S (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 Commerce Clause.

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 e

-12-

powers delegated by the proposed Constitution to the

Federal Government are few and defined. Those which

are to remain in the State Governments are numerous and

indefinite." The Federalist, No. 45 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." Jd. 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.’

> — The notion that the values of federalism must give way as the

Constitution is adapted to modern times is not well founded. The

national ecofiomy 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 aad difficult to control, states must be

allowed to exercise their constitutional freedom to experiment and

«ft.

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.

CG 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 them

devise their own solutions to these problems as Congress cannot

adequately take into account the myriad of local variables that affect

such problems.

EE

-14-

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. & Reclam. Ass'n, 452 U.S. at 281.;

United States v. Wrightwood Dairy, 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 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. Wirtz, “Neither here nor in Wickard has the Court declared

that Congress may use a relatively trivial impact on commerce as an

excuse for broad, general regulation of state or private activities.” 392

U.S. 183, 196 (1968). The Gun-Free School Zones Act seeks to do just

ihat. Any impact on commerce due to the carrying of guns in a school

zone is “relatively trivial” if any impact exists at all.

-15-

the debates over ratification, the Necessary and Proper

Clause was a source of “much virulent invective and

petulant declamation against the proposed constitution

Tr x ist, 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. Jd. Hamilton replied, "[I}t 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

4 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.” /d. The Necessary and Proper

Clause thus grants Congress the power to employ

-16-

“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.) at 421.

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

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

3Fe

congressional power sought by the United States, as

discussed above, does not consist with the letter and spirit

of the Constitution. See sections IA. and 1B.

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 US.

(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 McCulloch 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 y.

Zdanok, 370 U.S. 530, §91 (1962) (Douglas, J., dissenting).

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

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

* — 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

@ gun in a school zone. As described in the text, the constitutional

issue is whether this behavior falls within an caumerated category of

congressional regulation under Article | Congress has also used an

-18-

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 I. 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’

position.

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. /d. at 19. As discussed above, if the

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.

OO eee

-19-

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." /d. 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

conclusion.

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." Jd. 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. /d. at 239.

The substantial effect argument was rejected. This

Court held that "[iJf 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 Clause

-20-

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. Jd. 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 several states.

Reid and Kinsella properiy 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.

’ 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. Jd. 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 Ill

§ 2 and the Fifth and Sith Amendments would not apply, just as they

do not apply to court-martial proceedings against military personnel.

aici

-21-

Il. 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.” /d.

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

-22-

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

* — Curiously, this rationalization fails to explain why congressional

legislation on the subject is more effective than state legislation. As the

Sth Circuit observed, Texas has had a law since 1974 making Lopez's

actions a felony. Lopez, 2 F.3d at 1345.

* 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 (N.Y. 1928).

EEE ETC’ =i

2s.

is based, not on relevant fact finding competence, but on

due regard for the decision of the body constitutionally

appointed to decide.” Jd. 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., dissenting).

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

-24-

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 Article I."

Deference to congressional judgment as to its

power to legislate under the Commerce Clause is

inappropriate. Such deference takes away from the

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, %1 US. 234,

244-46 (1960) (questioning necessity and effect of court-martial

jurisdiction).

re a

24.

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, 370-

71 (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

-26-

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,

ail 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 commerce.’

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 US. at 371. Similarly, when deciding whether

Congress has jurisdiction to legislate unde; 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

‘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 cases.

nie a ee ee

-27-

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 vy.

Oklahoma, 441 U.S. 322, 326 n2 (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 alone.

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 US. 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.

-28-

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.S. 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 siate 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

aa

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 Sth Circuit,

Texas has a statute making Mr. Lopez’s actions a felony.

| Ill. 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 US. (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). Asa

a a ee

Ee

-30)-

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 tc 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 wi!l 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 Clause.

Respectfully submitted,

Professor Clayton Trotter® David G. Wille

Texas Justice Foundation 645 Post Oak Drive

8122 Datapoint Dr., Suite 906 Plano, Texas 75025

San Antonio, Texas 78229 (214) 527-5907

(210) 614-7157

Counsel for Amicus Curae

*Counsel of Record