Commerce!(Reflections on United States v. Lopez)

• Author: Merritt, Deborah Jones

Commerce! (sung to the tune of Convoy by an actor dressed as an FBI agent)(1)

His name was farmer Filburn, we looked in on his wheat sales. We caught him exceeding his quota. A criminal hard as nails. He said, "I don't sell none interstate." I said, "That don't mean cow flop. We think you're affecting commerce." And I set fire to his crop, HOT DAMN! Cause we got interstate commerce Ain't no where to run! We gone regulate you That's how we have fun. You made a call last Thursday long distance to Bayonne. We gone put you out of business, an' disconnect your phone. COMMERCE! When I graduated from law school in 1980, my classmates and I believed that Congress could regulate any act -- no matter how local -- under the Commerce Clause. Harvesting wheat for home consumption in Ohio,(2) selling a plate of ribs at a local cafe in Alabama,(3) and threatening to break the legs of a New York butcher:(4) all of these activities fell within the vast sweep of the Commerce Clause. With rhetorical flourish, Congress and the Supreme Court had turned the most local activities into flotsam on a raging stream of interstate commerce. My classmates parodied the swollen Commerce Clause with the lyrics reprinted above and performed the song as part of Columbia Law School's annual musical.

Enlightened by this song and confident that Congress could regulate any conduct under modem interpretations of the Commerce Clause, I originally dismissed the Fifth Circuit's decision in United States v. Lopez(5) as absurd. Of course Congress could regulate the possession of guns near schools. Don't guns travel in interstate commerce? Don't schools receive supplies from other states? Didn't the principal of Lopez's San Antonio high school occasionally call a colleague in New Orleans or Bayonne? Any second-year law student could devise a rationale linking the Gun-Free School Zones Act of 1990(6) to interstate commerce. Indeed, I suggested last year that the Fifth Circuit's Lopez decision was a mistake grounded in the Supreme Court's failure to distinguish adequately between an outdated territorial concept of federalism and a more contemporary autonomy model of federal-state relations.(7)

The Supreme Court, of course, disagreed. Surprising most academics and lower court judges, the Court ruled that the Gun-Free School Zones Act exceeded Congress's power under the Commerce Clause.(8) What does the Court's decision mean for the future of congressional regulation? Can Farmer Filburn begin raising marijuana or machine guns on his Ohio farm -- as long as he retains the crop for home consumption and as long as the state of Ohio does not object? Will my classmates sing a new commerce tune at our twentieth reunion?

In this article, I explore the Supreme Court's new definition of "Commerce ... among the several States."(9) In Part I, I examine three new principles that Lopez announces and that could significantly rework the Court's Commerce Clause jurisprudence. Part II, however, shows that these principles must be understood in the context of almost a dozen factors narrowing the Supreme Court's Lopez decision. Part II also demonstrates that the lower courts have understood the contextual uniqueness of Lopez and already have distinguished the decision in upholding more than half a dozen broad exercises of congressional authority. Part III then shows that the Supreme Court is unlikely to expand Lopez by building upon its principles or striking down other congressional statutes. A host of signals from the Supreme Court's 1994 Term suggests that the Court does not intend to apply Lopez broadly.

Lopez thus emerges as an important, but limited, rein on congressional power. The decision underscores both that Congress's authority under the Commerce Clause knows some bounds and that the Supreme Court will enforce that boundary through judicial review. Both of these principles have been subject to doubt in recent years,(10) so Lopez marks a minor constitutional revolution. The practical effect of the revolution in the courts, however, will be small.(11)

If Lopez imposes only a minor restraint on congressional power -- a line drawn across the far reaches of the regulatory sand -- then it is important to articulate the limiting features of the Court's decision. In the final part of this article, I draw upon the principles of fuzzy logic, a contemporary theory of mathematical sets with powerful implications for legal analysis, to summarize the Court's holding in Lopez. Fuzzy logic captures the many facets of Lopez and also demonstrates that the decision is capable of yielding a reasonably certain line between interstate commerce and other conduct. By applying fuzzy logic in this context, I aim both to illuminate Lopez and to demonstrate the utility of this analysis in constitutional law.(12)

1. UNITED STATES v. LOPEZ: THREE NEW PRINCIPLES

   The Lopez decision works three important changes in the Supreme Court's construction of the Commerce Clause. First, the decision holds that congressional power extends only to activity that "substantially affects" interstate commerce, rather than to any conduct that more broadly "affects" commerce among the states. Second, the opinion reduces judicial deference to congressional enactments because it subjects federal statutes to review under a toughened rational basis standard. Finally, the decision declares that Congress's power under the Commerce Clause cannot be allen-compassing; however broadly the Court construes the phrase "Commerce ... among the several States," rationales for congressional regulation must recognize some bounds on federal power.(13)

   I explore each of these changes briefly below. As I demonstrate in Part II of this article, however, these principles cannot be considered in isolation. The principles acquire their full meaning only through consideration of the facts and context of Lopez. I explore those aspects of the decision more fully after introducing the decision's three major principles.

   1. Substantial Effects

      Modern Supreme Court cases have recognized three categories of legislation authorized by the Commerce Clause: (1) statutes regulating "the use of the channels of interstate commerce;" (2) laws governing "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;" and (3) statutes regulating activities "that substantially affect interstate commerce."(14) The Lopez Court affirmed these three prongs of congressional power but underscored that regulations falling in the third category must bear a "substantial" relationship to interstate commerce.(15)

      The magnitude of this change is debatable. As Chief Justice Rehnquist pointed out in his opinion for the Lopez majority and as Justice Breyer acknowledged in the principal dissent, several previous opinions had used the word "substantial" to describe the intensity of the required relationship between the regulated activity and interstate commerce.(16) Even when the Court omitted the word "substantial" from its earlier Commerce Clause discussions, it may not have attached meaning to that omission.(17) Lopez, therefore, changed this aspect of the Court's rhetoric slightly, if at all.

      More important is the manner in which the Lopez majority employed the word "substantial." Justice Breyer's dissent interpreted "substantial effect" as a quantitative measure.(18) He convincingly showed that gun possession in schools has a sizable dollar effect on the economy by impairing the development of human capital and endangering the government's own multibillion dollar investment in education.(19) Breyer was puzzled, even outraged, that the majority did not agree that this effect was "substantial."

      The majority, however, did not use the adjective "substantial" to connote a simple tally of effects, a constitutional gate that would open once a prescribed number of interstate dollars had passed. The majority's use of "substantial effect" is more akin to the notion of proximate cause in tort law. The Lopez majority meant that the relationship between the regulated activity and interstate commerce must be strong enough or close enough to justify federal intervention, just as the concept of proximate cause means that a defendant's negligence must be closely enough related to the plaintiff's injury to justify forcing the defendant to bear the costs of the injury.(20) Both of these judgments are qualitative ones, resting on a host of contextual factors, rather than simple quantitative calculations.(21)

      Applying this notion of "substantial effects," the majority rejected Justice Breyer's -- and the Government's -- arguments because they proved too much. The latter arguments would have allowed the national government to regulate any activity at all. The majority was seeking a more special or distinctive relationship to interstate commerce under the rubric "substantial."

      This use of "substantial" in Lopez draws some support from previous cases. In NLRB v. Jones & Laughlin Steel Corp.,(22) the Court approved the congressional regulation of activities that have "a close and substantial relation to interstate commerce" or that enjoy a "close and intimate relation" to that commerce, contrasting those activities with conduct that has only "indirect and remote" effects on interstate commerce.(23) These words imply not a mere measure of quantitative effect on interstate commerce but the search for a particular type of relationship to that commerce. Even in Heart of Atlanta Motel v. United States,(24) a case broadly construing congressional power, the Court declared that "the determinative test" under the Commerce Clause is whether "the activity sought to be regulated ... has a real and substantial relation to the national interest."(25) Once again, the words connote a qualitative judgment about whether the link between the regulated activity and interstate commerce is sufficiently strong...