How would Justice Barrett have voted in United States v. Lopez?

The limiting principle presented in Lopez would likely not meet her threshold.

In Brackeen, Justice Barrett repeatedly faulted counsel for the petitioners for failing to meet their burden. Here, I'd like to focus on one of her criticisms:

We recognize that our case law puts petitioners in a difficult spot. We have often sustained Indian legislation without specifying the source of Congress's power, and we have insisted that Congress's power has limits without saying what they are. Yet petitioners' strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law—that would at least give us something to work with. Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but. [FN4]

[FN 4] Texas floated a theory for the first time at oral argument. It said that, taken together, our plenary power cases fall into three buckets: (1) those allowing Congress to legislate pursuant to an enumerated power, such as the Indian Commerce Clause or the Treaty Clause; (2) those allowing Congress to regulate the tribes as government entities; and (3) those allowing Congress to enact legislation that applies to federal or tribal land. Tr. of Oral Arg. 55. According to Texas, ICWA is unconstitutional because it does not fall within any of these categories. We have never broken down our cases this way. But even if Texas's theory is descriptively accurate, Texas offers no explanation for why Congress's power is limited to these categories.

In my earlier post, I mentioned this passage reminded me of United States v. Lopez (1995). Here, I'd like to expand on that theme.

Lopez presented a constitutional challenge to the Gun-Free School Zones Act. 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. Under the law, the government did not need to show that the firearm had traveled in interstate commerce — the so-called jurisdictional hook. At the time, the federal government had a six-decade winning streak in Commerce Clause challenges. Law students were taught that no limits existed on federal power. But that standard would all change in 1995.

Alfonso Lopez, the Defendant in this case, was a high school senior. He was represented by John R. Carter, a federal public defender from San Antonio, with the assistance of Carter Phillips and Sidley & Austin. (I emailed John Carter more than a decade ago to express my thanks for his service, but never received a reply.) I encourage you to read Lopez's brief. Here is the relevant paragraph:

Even if this Court finds that Congress need not have made formal or informal findings or even have before it concrete evidence of an effect on commerce when passing the Gun-Free School Zones Act, the Act still cannot withstand constitutional scrutiny. Chief Justice Marshall recognized long ago that Congress's power under the Commerce Clause is not unlimited, because "[t]he 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 v. Ogden, 9 Wheat. (22 U.S.) at 194. Thus, "the power to regulate commerce, though broad indeed, has limits." Maryland v. Wirtz, 392 U.S. 183, 196 (1968). Because it regulates noneconomic activity without a substantial nexus to interstate commerce, the Gun-Free School Zones Act exceeds those limits.

The brief is well done, but I submit it would not meet Justice Barrett's standard. The respondent here was attempting to draw a line that had never been drawn before. In candor, Lopez did not offer a comprehensive theory to rationalize two centuries of commerce clause doctrine. There is not a straight line from Gibbons to Wickard.

Rather, that theory would only be developed by Chief Justice Rehnquist's majority opinion. He delineated the scope of federal power since the New Deal. The three buckets that Chief Justice Rehnquist identified resemble the three buckets that Texas Solicitor General Judd Stone presented at oral argument. Rehnquist, like Stone, did not expressly explain "why Congress's power is limited to these categories." Rather they were attempting to rationalize non-originalist precedent in the service of originalism. That is, even if the Court had approved erroneous expansions of federal power in the past, those expansions can be cabined under a limiting principle. In Lopez, Chief Justice Rehnquist found that the Court had never approved a federal regulation of non-economic activity. The United States, and legions of law professors, insisted this limiting principle was illusory. But the Supreme Court drew this important line in the sand to prevent the further erosion of the original meaning of the Constitution. As my colleague Randy Barnett, explains, this far, but no farther.

How would Justice Barrett have voted in Lopez? Given her opinion in Brackeen, I think she would have found that the economic/non-economic distinction did not fully account for, and rationalize, all of the Court's cases. Therefore, Justice Barrett would not disturb that line of precedent. She would have deferred to Congress, and upheld the Gun-Free School Zones Act. Or what about NFIB? Did the plaintiffs put forward a comprehensive theory that accounted for all of the Court's cases regarding the line between activity and non-activity? I can show you an army of law professors who would say no.

In many regards, I see Justice Barrett's framework in Brackeen as consistent with her framework in Doe v. Mills: she is erecting barriers to make it harder for litigants to obtain relief. In the abstract, I don't object to neutral principles, like the party presentation rule, as a means to cabin judicial power. But Barrett's novel rules have never been applied before. And they are novel, since she cannot cite any precedent stating that litigants must "offer a theory for rationalizing [a] body of law." If we take Barrett's approach seriously, than landmark decisions like Lopez and NFIB likely would have never happened. And, of course, there is the asymmetry because progressive litigants will not need to clear any of these hurdles. Liberals are graded on a generous curve while conservatives are stuck on a pass/fail basis.

In many cases today, counting to five is much easier on the left than on the right, even with three Trump appointees on an alleged 6-3 conservative court. Governor DeSantis is not wrong.