# Amicus Curiae Brief — United States v. Lopez

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1197%3A19

## Record

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

## Text

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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 — 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

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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

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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

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1197%3A19. Public record. Not legal advice.