The Commerce Clause, the political question doctrine, and Morrison.

• Author: Rotunda, Ronald D.

INTRODUCTION

The Supreme Court's ruling in United States v. Morrison (1)--which invalidated parts of the Violence Against Women Act on federalism grounds--is one of the most significant Commerce Clause decisions in recent years for several reasons.

First, the majority opinion illuminates and clarifies the Court's view of the scope of federal power under the Commerce Clause. The Court articulates, with a little more precision than before, the limits on what is "Commerce among the States." Morrison accepts broad federal power when Congress regulates activities (even noncommercial activities) that cross state lines or use the channels of interstate commerce. Thus, it signaled approval of the portions of the Violence Against Women Act that federalize "crimes committed against spouses or intimate partners during interstate travel," (2) and portions that regulate the "channels of interstate commerce--i.e., the use of the interstate transportation routes through which persons and goods move." (3)

But when Congress uses the aggregation theory--adding up or aggregating a series of individual acts that together "affect" commerce among the states, if the activity regulated neither crosses a state line nor uses a channel or instrumentality of interstate activity--then the activity must have a "commercial character." (4) It must affect "commerce." Morrison, in short, tells us that Congress may not aggregate a series of noncommercial actions (such as carrying a gun near a school) in order to reach the conclusion that those actions affect "commerce."

Second, Morrison undercuts the argument that the Court should abdicate its role in federalism cases on the grounds that states can protect themselves. (5) This argument is treated as irrelevant because the entire Morrison Court (both the majority (6) and the dissent (7)) recognized that the doctrine of enumerated powers and the principles of federalism are designed, for the most part, to protect individuals not the states. Even Justice Breyer's dissent in Morrison acknowledged that the purpose of federalism and the purpose of the doctrine of enumerated powers are to protect individual liberty:

No one denies the importance of the Constitution's federalist principles. Its state/federal division of authority protects liberty--both by restricting the burdens that government can impose from a distance and by facilitating citizen participation in government that is closer to home. (8) Chief Justice Rehnquist, for the majority, agreed. The "Framers crafted the federal system of government so that the people's rights would be secured by the division of power." (9)

The Framers of our Constitution anticipated that a self-interested "federal majority" would consistently seek to impose more federal control over the people and the states. (10) Hence, they created a federal structure designed to protect freedom by dispersing and limiting federal power. They instituted federalism chiefly to protect individuals, that is, the people, not the "states qua states." (11)

The Framers sought to protect liberty by creating a central government of enumerated powers. They divided power between the state and federal governments, and they further divided power within the federal government by splitting it among the three branches of government, and they further divided the legislative power (the power that the Framers most feared) by splitting it between two Houses of Congress. (12)

Morrison is significant for a third reason--the rationale of Justice Souter's dissent, joined by Justices Stevens, Ginsburg, and Breyer. That sharply worded dissent is the focus of this analysis.

The four dissenters accused the Court of ignoring precedent--a charge that is hardly unusual for a dissent. However, what is noteworthy in this case is that it is the dissent itself that seeks to overturn a long line of precedent. For the first time in two centuries, these four Justices would hold that the scope of federal power under the Commerce Clause is a political question. While the majority considers the Commerce Clause to be a major enumerated power subject to a few limitations, the dissent treats the Commerce Clause as a general power, not subject to any judicial review. This dissent, in effect, treats the other enumerated powers as surplusage.

This effort by four Justices to apply the political question doctrine to federal Commerce Clause questions and treat them as nonjusticiable is a major break with precedent. To understand the significance of this endeavor, we first must turn to the parameters of the Violence Against Women Act, which Congress passed with the best of intentions and which the Court (also with the best of intentions) invalidated as beyond federal power.

THE VIOLENCE AGAINST WOMEN ACT

In United States v. Morrison, the Court--by a vote of five to four--invalidated section 13981 of title 42. (13) This provision created a federal civil remedy for the victims of gender-motivated violence. The law was popularly called "The Violence Against Women Act," although the sex-neutral text of the statute (which only refers to "persons") never mentions the sex of the victim:

A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate. (14) State laws, of course, already criminalize violence whether or not the perpetrator is motivated by gender. The new federal law did not preempt such state laws. Instead, it defined a "crime of violence motivated by gender" as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." (15) This law did not require a prior criminal conviction or even a prior criminal complaint. The civil plaintiff could file his or her cause of action in either state or federal court. (16)

Congress made extensive factual findings to show that the violence affects commerce, but the Court ruled that they were irrelevant to the constitutional analysis under the Commerce Clause. The Court concluded that sexual assaults--in the aggregate--do not "affect" commerce among the states because the aggregation doctrine does not apply to the effects of noncommercial conduct.

In Morrison, the plaintiff sued two persons who allegedly assaulted and repeatedly raped her. She could have sued in state court for the common law tort of assault and battery, but she chose to sue using section 13981. She selected a federal forum (although the federal law also authorized her to sue in state court, even though she was relying on a federal statute). (17)

The major issue before the Court was whether this law was within the Commerce Clause given the earlier decision in Lopez v. United States. (18) In that case, a 12th grade student had carried a concealed handgun in a San Antonio high school. This act of carrying the gun already violated state law, but the Federal Government prosecuted him under federal law, the Gun-Free Zones Act of 1990. The Court overturned the conviction and held that this action was not in interstate commerce. The government had to prove some connection with interstate commerce. It was not sufficient for the government merely to prove that the student carried the handgun. (19)

The Morrison majority invalidated the Violence Against Women Act, emphasizing that it was like the law in Lopez because it did not regulate an economic or commercial activity (20) and did not have any other nexus with interstate commerce. For example, it did not regulate something that had crossed state lines or was an instrumentality of interstate commerce. (21) Earlier, in Perez v. United States, (22) the Court had upheld a loan-sharking law. But, said the Court, that was different: loan-sharking is an extortionate credit transaction, and loan-sharking is a commercial crime. Lending money is a "commercial" activity. Sexual battery is an unusually offensive crime, but it is not a commercial crime. (23)

Undoubtedly crime, any crime, imposes costs on society. Crime affects national productivity, and, when one aggregates the costs of individual crimes, from purse-snatching to assaults (whether gender-motivated or not), one might conclude that they all affect commerce. Another way of rephrasing that argument is to assert that, in modern times, when we measure distances by time rather than miles (Los Angeles is only a few hours from Chicago; one can travel from New York to London on the overnight airline shuttle), everything is "commerce among the states" and we no longer have a government of limited or enumerated powers.

Under that theory, the Commerce Clause reaches everything, including barroom brawls. The Court has never accepted that argument in two centuries, (24) and all nine Justices in Lopez explicitly rejected it. The majority acknowledged that, "[i]n a sense any conduct in this interdependent world of ours has...