The Federal Government's "Police Power" and the Takings Clause: Part II

The Commerce and Necessary and Proper Clauses give Congress the power to prohibit the possession of certain items

|The Volokh Conspiracy |

Part I in this series rejected the notion that the federal government has an inherent "police power" to seize property without providing just compensation. There may be such an inherent authority with respect to policing matters at the border. But such this would not extend to domestic matters.

Part II will now explore the most likely source of Congress's authority to prohibit the possession of certain items within the homeland: the Commerce Clause and the Necessary and Proper Clause.

Let's start with first principles. The Commerce Clause provides "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Under modern caselaw, the word "regulate" is an all-encompassing term that embraces every conceivable aspect of government activity. But it isn't clear that, as an original matter, the power to "regulate" include the power to "prohibit."

Champion v. Ames (1903) is the leading precedent on point.  The Lottery Case, as it is known, established the principle that Congress's power to "regulate" interstate commerce include the power to "prohibit" that commerce. Justice John Marshall Harlan wrote the majority opinion. Randy and I discuss the case in An Introduction to Constitutional Law:

Justice Harlan concluded that [the power to "regulate" commerce give Congress the power to prohibit commerce]. By way of analogy, he observed that states have the police power to prohibit the intrastate sale of lottery tickets. If the states have that power, he asked, "why may not Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another?" In short, just as a state has a police power over intrastate commerce — which includes the power to prohibit such commerce — Congress also has a police power over interstate commerce. To this day, Champion v. Ames is cited for the principle that the power to "regulate" commerce includes the power to prohibit some forms of commerce.

Harlan suggests that the Commerce Clause, read in conjunction with the Necessary and Proper Clause, vests Congress with plenary authority that is akin to the state's police power.

Justice Kennedy articulated this principle in his Lopez concurrence:

In another line of cases, the Court addressed Congress' efforts to impede local activities it considered undesirable by prohibiting the interstate movement of some essential element. In the Lottery Case, (1903), the Court rejected the argument that Congress lacked power to prohibit the interstate movement of lottery tickets because it had power only to regulate, not to prohibit.

Under modern doctrine, if Congress has the power to regulate "x," then it also has the power to prohibit "x." And this prohibition would not effect a taking; no compensation is required.

Let's use Lopez to illustrate this principle. In 1990, Congress enacted the Gun-Free School Zones Act (GFSZA). This law made it a federal crime "for any individual knowingly to possess a firearm" within 1,000 feet of a school zone. The law did not purport to regulate any commercial activity. Additionally, the government did not need to show that the firearm had traveled in interstate commerce — the so-called jurisdictional hook.

The Supreme Court declared this statute unconstitutional. The GFSZA, Chief Justice Rehnquist wrote, "has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Nor is the federal law "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." For this reason, the Act "cannot . . . be sustained under [the] cases upholding regulations of [intrastate economic] activities . . . which viewed in the aggregate, substantially affects interstate commerce."

The GFSZA was declared unconstitutional, and Alfonso Lopez's conviction was overturned. Going forward, could the government seize a gun that was carried near a school zone? The answer is no, at least under the 1990 statute. Such a seizure could not be supported by the federal government's "police power." Stated more precisely, that action is beyond the scope of Congress's enumerated powers. If a federal agent seized Lopez's gun, it would amount to a taking, and just compensation must be provided.

In September 1994, six months before Lopez was decided, Congress enacted a new version of the Gun-Free School Zones Act that included a jurisdictional hook. Now, to be convicted of violating this law, the government had to prove that the firearm in question "has moved in or otherwise affects interstate commerce." As amended, the law remains in force. If a federal agents seizes a gun, under the authority of the new GFSZA, there would be no taking. The action would be within Congress's enumerated powers, or what some courts may refer to as the federal government's "police power." No compensation would be required.

This post should be relatively non-controversial. In Part III, I will extend this analysis to the bump stock cases.

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  1. non-controversial

    People understand the reasoning. They just don’t like it.

    What fraction of states must make something illegal before the feds magically accrue that power?

    If states are rapidly decriminalizing something, can’t think of an example (insert sarcasm mark) does that un-grant the federal government that power? How much does Big Mo weigh in this situation?

    Apparently people love the idea of living constitutionalism changing the meaning based on swinging opinion. I will hold my breath waiting for the declaration the feds can no longer regulate marijuana.

    Hmmm…The People’s Changing Opinions vs. Government should be strong. I wonder which will win?

    Ahh let’s not kid ourselves. The People’s Changing Opinion is what is supposed to be handled by democratic elections, not judges rubbing their chins. That’s the opposite.

    1. Note to self: close quote.

      Note to Reason: Allow a time window for edit.

    2. Either you’re fundamentally misunderstanding something here, or I’m misunderstanding you.

  2. Just FYI, there’s a glowing-eye troll named “Civil Forfeiture” just inside the next tunnel on the path you apparently intend.

    Have fun storming the castle,

    Mr. D.

  3. A basic reason why this argument would seem an extreme uphill battle is the text of the 4th Amendment. In the very act of limiting the federal government’s power to search and seize, the amendment evidences that that power exists.

    The Constitution has two categories, seizures and takings, subject to two different procedures and covered by two different constitutional amendments.

    The idea that the Framers intended these two things to be the same seems, to put it gently, an extreme stretch. If they are the same, one could with equal legitimacy argue that the government doesn’t have to provide compensation if it gets a warrant first – it simply gets its choice of which procedure to follow, and just compensation only applies to the 5th Amendment warrantless procedure, not the 4th amendment one with a warrant.

    1. Bingo.

      I have to assume (hope?) that the third post contains some more traditional law-like substance, because while I have never been a huge Blackman fan (quite the opposite), even I think that he possesses faculties of reasoning beyond that of the average 1L.

  4. That is, we assume that probable cause refers to evidence of a crime. But if one is going to be this revisionist, why assume that? Perhaps it also refers to evidence of public use.

  5. Under modern doctrine, if Congress has the power to regulate “x,” then it also has the power to prohibit “x.” And this prohibition would not effect a taking; no compensation is required.

    This seems like an over-simplification, no? I assume this is something you’ll ultimately get to later in the series, but the Takings Clause presupposes that the government has the power to regulate, or take away, the private property right in question — it just mandates that if that property is taken for public use, just compensation must be paid. A good example of this can be found in the “rails to trails” conversions administered by the Interstate Commerce Commission under the National Trails System Act Amendments of 1983 — the Supreme Court in Preseault v. ICC affirmed it was a valid exercise of Congress’s Commerce Clause power, and kicked the Takings Clause challenge down the road, telling the landowners to seek compensation in the Court of Federal Claims under the Tucker Act. And in the ensuing 30 years, the federal government has paid out hundreds of millions of dollars in takings compensation.

    1. Exactly! I am glad someone understands takings law on here!

    2. “This seems like an over-simplification, no? I assume this is something you’ll ultimately get to later in the series, but the Takings Clause presupposes that the government has the power to regulate, or take away, the private property right in question — it just mandates that if that property is taken for public use, just compensation must be paid.”

      I mean, it’s not like regulatory takings are a completely unheard-of area of the law, right?

      I truly don’t understand these articles; either he is re-stating that the federal government doesn’t have a “general police power” (a proposition so banal that it’s in Barbri), or he is making a point so weird I can’t even follow it using such normal concepts as “the Constitution” and “cases” and “things I have used in practice.”

    3. It does seem that Blackman has conflated federalism and the Takings Clause.

    4. Near as I can tell the argument relies on a line of jurisprudence anchored by the forfeiture case Bennis v. Michigan 516 US 442 (1996) which held

      The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.

      If so, the articles would be improved by making that connection more plainly.

      1. I’m as anti-forfeiture as the next person, but I have yet to see the connection.

        And I do think that, as a general proposition, that line is correct.* The devil is in the details.

        *In other words, the government must compensate you for a takings, and does not need to compensate you for a non-takings. Again, it’s pretty banal when it’s stated like that.

        1. E.g. if the Commerce Clause power to regulate includes the power to prohibit, then such prohibition is an exercise of an “authority other than the power of eminent domain” and so exempt from compensation (or “not a taking” if you prefer), because Bennis. I’m not saying I agree, many regulatory takings cases have been won by the plaintiff, but this is the best rationale my Blackman ouija board can come up with.

          1. The federal government doesn’t have the power of eminent domain. Does this mean no valid federal action could constitute a taking? If so, it’s time to abolish the Court of Federal Claims.

  6. “As amended, the law remains in force.”

    Almost any law can “remain in force” if carefully not enforced against anyone who dares to challenge it. It’s my understanding that this law is very carefully not being used against anybody who has only violated it alone, and is not clearly guilty of some other crime.

    It may also be relevant that the law was reviewed prior to the Supreme court finally getting around to acknowledging that the 2nd amendment guarantees an individual right. It was NOT reviewed as a law impacting exercise of a civil liberty, on its first visit to the Supreme court.

  7. “The Commerce and Necessary and Proper Clauses give Congress the power to prohibit the possession of certain items”

    This would be better phrased, “The Commerce and N&P clauses have been construed to give Congress the power to prohibit the possession of certain items.” The way it’s phrased takes it for granted that construing them to give Congress such power was actually correct.

    1. “This would be better phrased, “The Commerce and N&P clauses have been construed to give Congress the power to prohibit the possession of certain items.” The way it’s phrased takes it for granted that construing them to give Congress such power was actually correct.”

      At a certain point, you have to let descriptive analysis of the law proceed, Brett.

      Let me give you an example. Let’s say some says, “This is a First Amendment challenge to the school’s prohibition on stupid t-shirts with slogans.”

      Now, you could say, “That’s wrong. It’s not a First Amendment challenge. It’s a 14th Amendment challenge, see Gitlow. And this isn’t a state, but a subdivision. And it’s a 1983 case, per …. blah blah blah.”

      Or you could continue and say, “Even that’s not correct, since everything about that is wrong. Unless you accept my theories about incorporation (done incorrectly) and my Clarence Thomas-like views of 1983 and schools, you’re wrong. So …. blah blah blah.”

      If the post was about this specific issue (commerce clause etc.) that would be one thing. But it’s impossible to have even a basic legal conversation if we can’t accept basic legal principles (and save fights about the true meaning and scope of N&P and the commerce clause for the countless threads on VC that are about that).

      1. That WAS a descriptive analysis. There’s a difference between being descriptive, and lapsing into legal realism.

        1. What are you talking about?

          Descriptive is simply acknowledging the law as it is.

          If we are discussing, for example, the First Amendment, I don’t have to always say, “The First Amendment has been CONSTRUED to apply to actions regarding speech after the fact ….” I mean, yes, there is a debate re: prior restraint and punishment. But I don’t think we need to address it every single time in order to appeal to some Sedition Act truthers.

          Unless that’s the purpose of the discussion. Again, you have your hobby horse, you are welcome to ride it, and this place gives you ample opportunity.

          1. “Descriptive is simply acknowledging the law as it is.”

            Yup, that’s legal realism, alright. “Courts can’t make mistakes about the law, their rulings ARE the law.”

            No, they can make mistakes about the law, and while describing their rulings, it’s important to realize that you’re describing their rulings, not “the law”.

            1. “Yup, that’s legal realism, alright. “Courts can’t make mistakes about the law, their rulings ARE the law.”

              No, they can make mistakes about the law, and while describing their rulings, it’s important to realize that you’re describing their rulings, not “the law”.”

              What?

              Don’t go all Humpty Dumpty on me, Brett.

              Simple terms:

              DESCRIPTIVE: The law as it is.

              NORMATIVE: The law as you think it should be.

              The rulings of courts are “the law” from a descriptive standpoint, quite literally. It doesn’t make it right or wrong, but (at that time) what it is.

              Is burning the flag a protected by the First Amendment? Well, you can give a descriptive answer (what the law “is” as in what courts currently do) or a normative answer (what you think the law should be, based upon your understanding of the Constitution, or the ether, or the Declaration of Independence, or the voice in your head, or natural law, or whatever). That’s not really “legal realism.”

              I suggest taking a basic course in jurisiprudence if you want to understand legal realism, or even googling it.

              1. You are describing legal realism: The idea that court rulings are “the law”.

                No. The law is the subject of court rulings, not the rulings themselves. The map is not the territory, a weather report that it’s dry outside won’t keep you from getting soaked if it’s raining.

                Imagine I’m holding one of those pocket editions of the Constitution. (Hm, need to get a new one, this one is yellow and pre-27th amendment.) This, this here, is “the highest law of the land”. NOT the court rulings about it. this written text ITSELF is “the law”.

                I’m not confusing “the law as it is” with “the law as I think it should be”. (This written text isn’t what I think it ought to be, for one thing.) You’re confusing “the law as it is” and “what judges say about the law.”

                You’re approaching this from a perspective that denies the judiciary can make mistakes, can be dishonest. You’re replacing the law, (Waves the pocket edition again.) with judges’ whims.

                This is a dangerous game to play, in a nation where the law is publicly available for anybody to read, and to compare to court rulings. Where court rulings that differ from that law anybody can read erode the legitimacy of the courts.

                I’ll grant you it’s an understandable mistake for legal professionals to make, because remembering that the rulings are not the law itself has little utility to practicing lawyers, and significant risk.

                But legal realism is still a mistake, and a dangerous one.

              2. Let me give you a concrete example.

                The 6th amendment, publicly, in black and white, reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”

                THAT is “the law”.

                The Supreme court has held that, not withstanding that unambiguous text, you may be denied your right to a jury trial if the crime isn’t ‘serious’, a word appearing nowhere in the 6th amendment. The Court has set out a number of different, arbitrary criteria for determining when a defendant in a criminal trial can be denied their right to trial by jury.

                The law says all, the Court says some.

                Now, as a practicing lawyer, you’d be a fool to walk into court assured that your client could absolutely get that jury trial despite the proposed sentence being 4 months, because the law says “all”. Legal competence requires you to be able to predict with reasonable accuracy how courts will rule on these things.

                That doesn’t obligate you to pretend the courts are right.

                1. You’re approaching this from a perspective that denies the judiciary can make mistakes.

                  Loki did no such thing. Your inability to recognize this fact harms your credibility.

                  1. He literally wrote, “The rulings of courts are “the law” from a descriptive standpoint, quite literally. It doesn’t make it right or wrong, but (at that time) what it is.”

                    The rulings of courts are “the law”. This implies that it is impossible for the courts to make a mistake about what the law is: If today they say the law is X, and tomorrow they say Y, they weren’t wrong on either occasion, “the law” just changed.

                    1. The rulings of courts are “the law”. This implies that it is impossible for the courts to make a mistake about what the law is.

                      No. No. A thousand times no. What part of “It doesn’t make it right or wrong” did you not understand?

                    2. How can you make a mistake about what the law is, if the law is just what you say it is?

                    3. Accepting your semantics game for the moment, while the Court can’t make a mistake about what the “law is,” their interpretation of what the “law ought to be” can be mistaken.

                      Your semantics game while ignores loki’s substantive point.

  8. The idea that the 1994 GFZ bill ‘allows’ guns to be confiscated based purely on the theory that they once crossed a State line is absurd.

    If I’ve owned a firearm for 20 years, and one day violate the GFZ nonsense, there is no rationale argument on the planet for how confiscating my firearm is justified under the regulation of interstate commerce, when that firearm’s commercial transaction was completed 20+ years ago.

    You might as well just place a giant sign on the front page saying you’ll defend any Government taking because everything likely crossed a State line at some point. So much for enumerated powers and limited Government.

    1. NO, he’ll defend any government taking because everything likely crossed a state line at some point, or could have, or had an effect on interstate commerce, or….

      The whole point of modern interstate commerce clause and N&P jurisprudence is exactly to abolish the idea of enumerated powers and limited government.

  9. “states have the police power to prohibit the intrastate sale of lottery tickets. If the states have that power, he asked, ‘why may not Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another?'”

    It’s a fairly long stretch to got from possession to commerce. If I buy something in state A, and carry it across the border to state B, it’s a fairly big assumption that I’m planning to transfer possession to anyone in state B under any circumstances. Which means that the feds should have to provide evidence of intent to engage in commerce before they can sentence me for engaging in unlawful interstate commerce.

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