New Commerce Clause

New Commerce Clause In the wake of the New Deal, the Commerce Clause has served as the constitutional predicate for a wide variety of statutes, many of which at least arguably do not involve commercial activity, or at least “commerce … among the several states.” The foundations for such measures were laid in decisions like Wickard v. Filburn (1942), in which the Court held that Congress could regulate both interstate economic activity and intrastate activities that had a “substantial effect” on commerce. Moreover, its approach in such matters was highly deferential, conveying the distinct impression that Congress had a virtual blank check.

That arguably came to an end when, for the first time in over fifty years, a narrow 5‐to‐4 majority held in United States v. *Lopez (1995) that a federal statute, the Gun Free Schools Zone Act of 1990, exceeded congressional authority. That ruling was subsequently affirmed in United States v. *Morrison (2000), when the same five justices invalidated a provision of the Violence Against Women Act that authorized an individual to bring a suit for recovery of damages as a result of “gender motivated violence.” The majority argued that neither the mere possession of a gun within one thousand feet of a school nor the rape of a university student were economic activities. And they stressed that the implications of any holding that congressional authority extended to such activities were profound, given their belief that matters of this sort are properly the concern of the sovereign states.

Both decisions were part of a line of recent cases within which the Court has stressed the importance of placing firm limits on federal authority and, in particular, strengthening judicial and legislative respect for the states. This “new federalism” is likely to be the principal legacy of William Rehnquist as chief justice, and as such has been applauded by those who maintain that the Constitution must be read and interpreted in the light of the original intentions and understandings of the founding generation. This view has in turn been sharply criticized by many others as an inappropriate and dangerous departure from a constitutional design within which federal authority was to serve as a check on states that were either unable or unwilling to address pressing matters of national concern.

If taken to their logical conclusions Lopez and Morrison could have substantial implications. If, for example, the Court continues to insist that only commercial activity qualifies—a departure from both the language and spirit of Wickard, which required that the substantial effect be economic in nature but did not actually so restrict the activities that could be regulated—these cases will certainly impose significant limitations on Congress, at least to the extent that it wishes to use the Commerce Clause as the authority for its actions. But it is far from clear that this would actually leave Congress unable to act in many circumstances where the commerce power had previously been invoked. In the wake of Lopez, for example, Congress passed a new gun‐free school zones measure that is clearly constitutional given its insistence that the gun in question be an “article of commerce.” And it is equally possible, indeed likely, that Congress could use other authority that remains available, in particular the spending power and the authority conferred by section V of the Fourteenth Amendment, as constitutionally appropriate means toward the desired ends.

Given the number of statutes now in effect that were premised on the commerce power, and the very small number of cases in which courts at any level have declared them unconstitutional, the impact of these decisions has to date been largely symbolic. But there is in that symbolism considerable substance, given the extent to which the new federalism has in fact substantially strengthened the role of the states at the expense of that of the federal government. Congress, it seems, must act with care, both in terms of what it does and how it goes about it, ever mindful of the need to respect the sovereignty of the states.

Bibliography

Symposium, The Commerce Clause: Past, Present, and Future, Arkansas Law Review 55 (2003): 711–1311.

Mark R. Killenbeck