by William Funk ¹

Three years ago the Supreme Court surprised much of the legal world when in United States v. Lopez, 514 U.S. 549 (1995), the Court held that the Gun-Free School Zones Act of 1990 exceeded Congress's powers under the Commerce Clause. For nearly sixty years the Court had rejected claim-after-claim that a statute violated the Commerce Clause, and observers had generally come to believe that, like the Delegation Doctrine, while there might be a theoretical limit on Congress's power, there was no practical limit. Lopez proved that observation false. How has Lopez played out in the lower courts since the Court's decision?

In deciding Lopez, the Court did not purport to alter the established, black-letter law of the Commerce Clause. To the contrary, it cited the hornbook cases and invoked the traditional tests. It reiterated that there are three basic categories when federal regulation is justified under the Commerce Clause: (1) when the subject of the regulation is using the channels of interstate commerce; (2) when the subject of the regulation is itself in interstate commerce; and (3) when the subject of the regulation has a "substantial relation to" or "substantially affects" interstate commerce. The first two categories, where the relation to interstate commerce appears to be more direct and obvious, do not seem to raise the potential problems of the third category -- the category in which the Gun-Free School Zones Act was alleged to fit.

The famous case of Wickard v. Filburn, 317 U.S. 111 (1942), set the standard for the third category. There a farmer had raised 239 bushels of wheat in excess of the federally set quota, and he had fed this wheat to animals on his farm. His argument, quite plausible on its face, was that none of his wheat ever went into interstate commerce, and even if it had, 239 bushels of wheat could not possibly have a "substantial" effect on interstate commerce. The Court, however, rejected this analysis and upheld the federal regulation, concluding that even if his wheat did not enter interstate commerce, his on-farm consumption of it affected commerce because otherwise he would have had to purchase that wheat on the market. Therefore, his failure to buy wheat affected interstate commerce. Moreover, while 239 bushels might not be a substantial amount, if the federal government could not regulate each farmer's relatively small output, the total exempted output would in aggregate be substantial and have a substantial effect. In short, while the effect on commerce might be indirect, that did not take it beyond the Commerce Clause.

The government argued, and four justices agreed, that the Gun-Free School Zones Act fits within this analysis. Guns in schools harm the educational process by threatening the learning environment, and the quality of education significantly affects interstate commerce. Five members of the Court, however, were not convinced. First, the Court stated that unlike the laws in most Commerce Clause cases, this law did not regulate commercial activity or "any sort of economic enterprise." Second, again unlike the laws in many Commerce Clause cases, this law did not limit itself to guns that had traveled in interstate commerce. Finally, the Court believed that acceptance of the government's argument would "pile inference upon inference" to justify a general federal criminal law enforcement power as well as a general power to regulate education, both areas "where States historically have been sovereign." The Court concluded, "if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate." This would eviscerate the entire notion, central to our constitutional framework, that the federal government is a government of limited powers. Thus, Wickard's analysis "may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."

The question after Lopez naturally was: what other laws out there might fail this type of Commerce Clause scrutiny?

Since Lopez was decided, federal courts of appeal have cited it almost 400 times. Over 40 federal laws have been challenged, invoking Lopez as the basis for the challenge. As of the beginning of June 1998, however, in only three cases has a court of appeals reached a decision striking down government action in a way that might be said to be based upon Lopez. Each of these were criminal cases, and two were prosecutions under the federal arson statute, 18 U.S.C. §844(i). That statute specifically requires that the arson involve a building "used in any activity affecting interstate . . . commerce." While such a jurisdictional predicate insulates the statute itself from invalidation under Lopez, the analysis in Lopez may be seen as affecting its application. In United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1996), the court refused to accept that the fact that a residential building used natural gas from interstate sources met this jurisdictional prerequisite. In United States v. Denalli, 73 F.3d 328 (11th Cir. 1996), the owner of the torched house had written work memos in a home study, and his work memos were for a company engaged in international commerce, but the court concluded this did not meet the statutory requirement. The Seventh Circuit, however, has expressly rejected Pappadopoulos's reasoning, see United States v. Hicks, 106 F.3d 187 (1997), and the Eleventh Circuit has appeared to limit Denalli to the facts of the case, see Belflower v. United States, 129 F.3d 1459 (1997). At least eight other circuit cases have rejected Lopez arguments in other federal arson cases, although none appear to involve only an owner-occupied, single residence.

The one other case in which Lopez made a difference is United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). While again a criminal case, this time the underlying statute was a regulatory statute -- the Clean Water Act. The defendant argued that the waters he had been found to pollute were beyond the scope of Congress's power under the Commerce Clause. The court expressed some skepticism whether Congress could regulate the waters in question, but it concluded it need not resolve that question because it could interpret the regulations implementing the statute so as to avoid the constitutional question. The court invoked not just Lopez, but also Printz v. United States, 117 S.Ct. 2365 (1997) and New York v. United States, 505 U.S. 144 (1992), both Tenth Amendment cases, as well as Seminole Tribe v. Florida, 517 U.S. 44 (1996), an Eleventh Amendment case. Even in this circuit, however, Lopez has generally been narrowly read, see, e.g., Brzonkala v. Va. Polytechnic Institute, 132 F.3d 949 (1997) (upholding the Violence Against Women Act against a Lopez challenge and concluding that Lopez did not change Commerce Clause analysis, over a dissent arguing that Lopez wrought an "overarching change in Commerce Clause analysis").

These statistics suggest that Lopez has had little impact, but this conclusion would be too facile. Of the 40-some laws that have been upheld against a Lopez challenge, nine have been sustained over a dissent. Moreover, these dissents have occurred in a number of cases not involving purely criminal law contexts -- an area about which the Lopez Court expressed particular concern. For example, an application of the Endangered Species Act was upheld by the D.C. Circuit, but without any majority opinion. See National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997). The Freedom of Access to Clinic Entrances Act has been upheld in six circuits, but in two over strong dissents based upon Lopez. See United States v. Bird, 124 F.3d 667 (5th Cir. 1997) (Demoss, J., dissenting); United States v. Wilson, 73 F.3d 675 (7th Cir. 1995) (Coffey, J., dissenting). In United States v. Bailey, 115 F.3d 1222 (5th Cir. 1997), the court upheld over Judge Jerry Smith's dissent the Child Support Recovery Act. In Brzonkala v. Virginia Polytechnic Institute and State University, 132 F.3d 949 (4th Cir.1997), the court upheld the Violence Against Women Act over the strong dissent of Judge Luttig, and in United States v. Page, 136 F.3d 481 (6th Cir. 1998), Judge Wellford expressed his opinion that the constitutionality of the Act was "subject to serious question." And, as discussed above, in United States v. Wilson, 133 F.3d 251 (4th Cir. 1997), the Fourth Circuit found a routine application of the Clean Water Act's Section 404 Program as likely beyond Congress's power. Even when a circuit court unanimously rejects a Lopez challenge, it is sometimes in the context of reversing a district court decision that had accepted it, see, e.g., United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997) (reversing decision of district court that the Comprehensive Environmental, Response, Compensation and Liability Act was unconstitutional as applied to a wholly intrastate hazardous waste cleanup); United States v. Mussari, 95 F.3d 787 (9th Cir. 1996)(reversing district court decision that the Child Support Recovery Act was beyond Congress's Commerce Clause power); Hoffman v. Hunt, 126 F.3d 575 (4th Cir. 1997) (reversing district court decision finding the Federal Access to Clinic Entrances Act beyond Congress's Commerce Clause power).

The power of Lopez to affect a judge's attitude toward the constitutionality of a law seems to correlated highly with the political orientation of the judge. For example, in the twelve cases in which Lopez challenges have been rejected over a dissent, the dissenting member of the panel had been appointed by a Republican in all but one case. Of the 19 Democratically appointed judges, in these twelve cases, 18 voted to uphold the statute against a Lopez challenge, while of the 17 Republican appointed judges, 11 voted to overturn the statute.

Looking at the forest, one gathers that the Court's analysis in Lopez is having its greatest effect with respect to laws that look like the Gun-Free School Zones Act -- laws that do not relate to economic activity but instead criminalize federally an activity traditionally already criminal under state law. In that regard, Lopez seems to have little future to affect federal regulatory activity. At the same time, the impact of Lopez, as opposed to its doctrinal effect, extends well beyond this limited field when it is combined with the Supreme Court's federalism decisions in recent years. Each of the cases, Lopez, Printz, New York v. United States, Seminole Tribes, and City of Boerne v. Flores, 117 S.Ct. 2157 (1997) (finding the Religious Freedom Restoration Act beyond Congress power under the 14th Amendment), by itself can be read (and probably is properly read) narrowly, but as a group they reflect an aura of heightened concern with expansive federal power, and this concern clearly has the potential for major effects on federal regulatory activity.

1. Professor, Lewis & Clark Law School; Editor-in-Chief, Administrative & Regulatory Law News.