Facial challenges and the commerce clause: rethinking Lopez and Morrison.

• Author: Rosman, Michael E.

In May 2001, I participated in a symposium sponsored by the Stanford Law Review on the Supreme Court's federalism jurisprudence. (1) During this symposium, former Solicitor General Seth Waxman asked the following question (which I am paraphrasing): Why was Alfonso Lopez allowed to challenge the Gun Free School Zones Act in United States v. Lopez (2) as an improper attempt by Congress to regulate non-economic activity when his own conduct (delivering a gun to another student for $40) (3) was quintessentially economic? (4)

"Good question," I thought at the time, and I was not particularly satisfied with the answer he was given. (5) The Supreme Court has recently told us that the challenges in Lopez and United States v. Morrison (6) were challenges that the statute "fell outside Congress' commerce power in its entirety," (7) which is generally understood to mean a facial challenge, but I think this just begs General Waxman's question. Why should Alfonso Lopez have been permitted to make a facial challenge if the statute could be (with perhaps some minor surgery) constitutional as applied to him?

This piece attempts to answer General Waxman's question. I believe that Lopez and Morrison were, in fact, "overbreadth" challenges to the laws in question. (8) This answer, of course, requires an explanation itself, since the Court has suggested a limited role for overbreadth challenges, perhaps limited to the First Amendment context. Accordingly, in Part I of this piece, I set forth the holdings in Lopez and Morrison. In Part II, I briefly go through the Supreme Court's jurisprudence on facial challenges to statutes and focus to some degree on what the Court has said when faced with facial challenges to a statute as being outside of Congress's enumerated powers. Further, I consider various academic theories that have suggested that such challenges can only be made facially, and conclude that, while intriguing, they do not reflect the Court's jurisprudence or most people's intuition.

In Part III, I argue that if Lopez and Morrison were facial challenges, as the Court has told us, it can only be because they were challenges to the statute as being overbroad. I provide some rationale as to why the Court has permitted overbreadth challenges in this area but not elsewhere. I also address various other approaches by academics to explain why the Court has permitted facial challenges. Specifically, I address the theory of Professor David Franklin, who has argued that Lopez and Morrison are not overbreadth cases at all, but rather cases in which the Court is looking for an objective legislative purpose to the statute. (9) I also consider Professor Richard Fallon's recent and very brief, passing reference to Lopez as an overbreadth case, which, if I understand it, is significantly different from what I argue here. (10)

Finally, in Part IV I offer a few thoughts about what my hypothesis means for challenges to other statutes, particularly the statute challenged in Gonzales v. Raich (11) and the individual mandate of the Private Protection and Affordable Care Act.

PART I

In Lopez, the Court considered a challenge to the Gun Free School Zones Act (GFSZA) (12) to be beyond Congress's power to regulate commerce "with foreign Nations, and among the several States, and within the Indian tribes." (13) The GFSZA made it illegal for anyone to "knowingly possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." (14)

After reciting a brief history of the Court's jurisprudence under the Commerce Clause, Chief Justice Rehnquist identified "three broad categories of activity that Congress may regulate under its commerce power." (15) First, it could regulate the "channels of interstate commerce," for example, by prohibiting those channels from being used for immoral purposes. (16) Second, it could regulate the instrumentalities of interstate commerce or persons or things in interstate commerce. (17) Finally, it could regulate activities that have a "substantial relation" to interstate commerce. (18) The Court held that the GFSZA could be considered constitutional only if it was a valid exercise of the last of these powers; it was not a regulation of the channels of interstate commerce and not an attempt to protect an instrumentality of interstate commerce or a thing or person in interstate commerce. (19)

The Court concluded that the GFSZA could not be justified, based upon a theory that the regulated activity had a substantial relation to interstate commerce, as a valid exercise of Congress's third Commerce Clause power; that power is limited to instances where Congress regulates intrastate economic activity that "substantially affects" interstate commerce, where the regulation is an essential part of a larger scheme of regulation of economic activity that affects interstate commerce, or where Congress supplies a jurisdictional element that ties the regulated activity to interstate commerce in each specific instance. (20)

The Court affirmed the judgment of the Fifth Circuit, which for different reasons, concluded that the GFSZA was "invalid as beyond the power of Congress under the Commerce Clause." (21) Thus, the Court appears to have invalidated the Act as a whole and not simply its application to Alfonso Lopez. The Court never mentioned the fact (as found by the Fifth Circuit) that Lopez himself was engaged in some kind of commercial transaction; that presumably was irrelevant to its analysis. Curiously though, Chief Justice Rehnquist did mention, "[T]here is no indication that [Lopez] had recently moved in interstate commerce...." (22) It is unclear why he thought that was a fact of consequence in what was apparently a facial challenge to the law. (23)

In Morrison, the Court considered a challenge to 42 U.S.C. [section] 13981, passed as part of Subtitle C to the Violence Against Women Act. The Act provided a tort remedy to the victims of any person who committed a crime of violence motivated by gender. (24) Congress specifically identified both the Commerce Clause and Section 5 of the Fourteenth Amendment as its sources of authority for passing the statute. (25)

The Court found that the statute was not a proper exercise of either grant of authority. With respect to the Commerce Clause, the Court, in an opinion again authored by Chief Justice Rehnquist, followed the analysis in Lopez closely. After listing the three fonts of authority the Court recognized in Lopez, the Court likewise concluded that the statute before it could be sustained, if at all, only as an exercise of Congress's third Commerce Clause power, to regulate intrastate economic activity that has a substantial relationship to interstate commerce. (26) The violence regulated by the statute was noneconomic in nature, and the statute had no jurisdictional element; accordingly, these Lopez factors weighed against the constitutionality of [section] 13981. (27) Indeed, the primary difference between [section] 13981 and the GFSZA was that Congress had made "numerous findings regarding the serious impact that gender-motivated violence has on victims and their families." (28) The Court found this difference insufficient because Congress relied on "a method of reasoning that [the Court had] already rejected as unworkable," (29) one that relied upon the general economic effects of violence.

The Court did note much more explicitly than it had in Lopez that its previous precedents that permitted Congress to aggregate the effects of a particular kind of activity had been limited to cases where Congress regulated economic activity. Under this principle, Congress could consider the effects on interstate commerce as a whole from all of the regulated activity. (30) The fact that one litigant's activities had only a trivial effect on interstate commerce was irrelevant. In Morrison, the Court stated that this theory had been limited in the past to those instances where Congress had regulated economic activity. (31) Although the Court did not rule that the theory could not be applied in a case that involved a statute that regulated non-economic activity, it did suggest that it would not aggregate the effects of violent crime (or, more specifically, gender-motivated crime) in the fashion that Congress had. (32)

After concluding that [section] 13981 could also not be sustained under Section 5 of the Fourteenth Amendment, the Court concluded that "Congress' effort in [section] 13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under [section] 5 of the Fourteenth Amendment." (33) It went on to affirm the judgment of the Fourth Circuit court of appeals, which it had previously described as having "struck down [section] 13981." (34) Again, this appears to be a holding that the statute as a whole is unconstitutional and could not be used in any circumstance, although, as I will show, this is almost certainly wrong.

After Morrison, the Court did not provide much in the way of guidance about the scope of the Commerce Clause. It did, in several cases, read narrowly statutes that had jurisdictional elements (unlike the statutes at issue in Lopez and Morrison), purportedly to avoid constitutional problems. But the Court's analysis in those cases is not very enlightening. For example in Jones v. United States, (35) the Court read the federal arson statute narrowly so as to preclude its application to a private residence that received natural gas shipments from out-of-state. (36) The Court invoked the principle that it should avoid an interpretation--in this case, apparently, the government's contention that the receipt of natural gas from out-of-state placed the home within the protection of the statute--that would raise "grave and doubtful constitutional questions." (37) Curiously, the Court did not mention the regulation of wide swaths of non-economic activity with little connection to interstate...