In 1995, the Supreme Court handed down an opinion that had the potential to rewrite federal?state relations in criminal enforcement. The ruling in UNITED STATES V. LÓPEZ, a decision on the power of Congress to regulate INTERSTATE COMMERCE, involved a criminal prosecution of a twelfth-grade student for a violation of the Gun-Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."
In López, the Court held that this statute was "invalid as beyond the power of Congress under the Commerce Clause." For the first time since the 1930s, the Court declared a federal statute unconstitutional on such a ground and thereby raised doubts about the COMMERCE CLAUSE underpinnings of much of the Federal Criminal Code.
Chief Justice WILLIAM H. REHNQUIST reviewed the traditional commerce power bases that have been upheld by the Court and found none of them present in López. Initially the Court's decision seems sound; upon reflection, however, doubts arise. After all, what is the guiding principle in the decision? Simply the absence of express connection to interstate commerce? If so, could Congress cure the constitutional defect by including findings in the statute regarding the impact on commerce of the possession of guns on school grounds; or using another approach, by requiring that the gun, or some of its parts, or the possessor of the gun, have traveled recently in interstate commerce? If so, the decision loses its significance and becomes formalistic in the extreme.
In the wake of the decision, numerous symposia were organized discussing the impact of López. Nor was there a stirring only in academia. Within the next few years, in reliance on the decision, frequent challenges to the constitutionality of other commerce-based federal criminal LEGISLATION were raised in the lower federal courts. A key question addressed in the academic consideration of the implications of the decision was whether this was an opening salvo in an attack by the Court on the practically unlimited scope of the exercise of commerce power authority by the Congress. Or was it simply "an isolated deviation from the strong current of precedents"?
If the lower court decisions are any index, López does not signal a revolution in commerce power DOCTRINE. Although there have been some decisions holding federal...