Today in Supreme Court History: November 8, 1994

11/8/1994: U.S. v. Lopez argued.

Edison High School, San Antonio

Comments

[Old Smokin' Egg]

It was going so well. In Lopez, the Supreme Court started taking steps to put some limits around Commerce Clause power; and later, in Morrison, they furthered the process. But then came Raich, and Scalia let his visceral dislike for recreational drugs overcome his committment to federalism, and conclude that Wickard v. Filburn must've been OK after all.

Will we see something like this again in the 2020s? During Biden's term, SCOTUS looked like they were starting to take seriously the non-delegation and major-questions doctrines. But will they continue to do so now that it's Trump rather than a Democrat wielding the executive power; and, if they decide that Presidential rule by ukase is OK, will Prof. Blackman explain that it's exactly what the Founders had in mind?

[JoeFromtheBronx]

U.S. v. Lopez had a symbolic flavor.

It is rather easy to manage to have a "jurisdictional hook" connected to interstate commerce (or some other enumerated power) that meets the terms of this case.

The dissents also made a strong case. It does not require a game of Kevin Bacon or "inference on inference" to determine that threats to educational institutions threatens interstate commerce.

The Commerce Clause + the Necessary and Proper Clause provides the authorization for the legislation. We can debate if it is good policy. The constitutional structure sets up a process that sets up institutions to determine that. The current shutdown underlines they do not provide trivial restraints.

The Constitution sets forth a range of other limits on congressional enumerated powers from Art. I, sec. 9 to the Bill of Rights and beyond. Some might argue this law somehow violated the Second Amendment, for instance, including state discretion over the militia. A law that requires people to have certain medical procedures (as compared to an insurance regime) comparably can raise constitutional privacy/liberty concerns.

Supporters of the opinion will appeal to limits on federal power. The core problem is that the opinion provides a false hope on that front. It did begin a modern federalist jurisprudence involving various aspects that provided some limits. But, again, long term, it is quite unclear how much it really did in this case.

Each case should be examined on its own merits. For instance, U.S. v. Morrison concerned a civil litigation provision that could be defended on multiple grounds. It was not merely a direct federal regulation of sexual violence, which might be more problematic.

Also, overall, I think it is time to dispose of the Civil Rights Cases. Justice John Marshall Harlan, as he often was, had it right.

==

The peyote case was recently addressed. I checked it once more, including looking at both state and SCOTUS opinions. It came to the Supreme Court twice. It was sent back the first time.

The state court then decided that religious usage of peyote by Native Americans was part of religious liberty. It significantly rested on congressional findings on the matter.

SCOTUS was concerned about other matters. The dissent did not address the state court's argument on the point. I find this unfortunate. The 14th Amendment expressly added congressional enforcement power. Congress should have more respect in this area. It just goes to show that judicial restraint is rarely consistent.

[Brett Bellmore]

"It does not require a game of Kevin Bacon or "inference on inference" to determine that threats to educational institutions threatens interstate commerce."

The problem with the minority's position is that EVERYTHING can affect interstate commerce. EVERYTHING! The weather. The phases of the Moon. The minority's position takes everything after "to regulate" and renders it utterly moot!

It doesn't Goddam MATTER if threats to education threaten interstate commerce. The interstate commerce clause authorizes Congress to regulate a very limited subset of commerce, everything that is not commerce, or not within that subset, is properly beyond its reach. Text was added to the clause specifically to put most things beyond that reach!

It doesn't matter, if, that is, you're going to enforce the Constitution we were actually given, the one that actually got written and ratified, rather than the one you wish we had in its place.

But, of course, the Court isn't willing to do that, so in the end Lopez stood for nothing more than the idea that Congress has to recite the magic words "interstate commerce" when they regulate something.

[wvattorney13]

"[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . ."

Agreed. Congress has the power to regulate interstate commerce not regulate anything which might affect interstate commerce or to regulate "threats" to institutions which might have a downstream effect on interstate commerce.

Just look at the current Trump tariffs case. The statute says that he may "regulate" trade with foreign nations. If we construe that word the same way we do in the Commerce Clause, then Trump can literally do anything he wants.

[JoeFromtheBronx]

The majority quoted this test:

"[t]he Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.

Not anything that might have some trivial affect.

But some substantial relation is acceptable. So, yes, threats to institutions that threaten commerce might count. The meaning of a word like "substantial" is somewhat subjective.

I presume you want five judges, who included Anthony Kennedy, instead of Congress to decide the threat to commerce here was not substantial enough. Others will say "YMMV."

The application of a specific statute is not quite the same thing as the law making power, which includes the Necessary and Proper Clause, to regulate commerce at the first instance.

[Edward Cantu]

Lopez was merely symbolic. It has had little to no impact on the trajectory of the court's commerce clause jurisprudence since Morrison. See Taylor v. U.S.

In fact, Lopez had very little impact on the very statute the court claimed to invalidate, since congress merely added the language "interstate commerce" to the statute, and the court refuses to grant cert to hear arguments that this isn't is insufficient to validate the statute. Message to the world? The only limits on the commerce clause power are those imposed by congress itself: weather it chooses to use the phrase "interstate commerce" in statutory language.

The dual sovereignty revolution was more like an inconsequential protest outside a planned parenthood clinic.