I know economic activity when I see economic activity: an operational overhaul of the measure by which federal criminal conduct is deemed "economic".

• Author: Tzur, Paul

1. INTRODUCTION

   Amid the enumerated powers delegated to Congress in the Constitution is the power to "regulate commerce ... among the several states." (1) For over fifty years after President Franklin Roosevelt embarked on his New Deal with America, the Commerce Clause was interpreted by the Supreme Court to practically grant plenary power to Congress to pass regulation. (2) During that time, the Court found no federal regulation unconstitutional on grounds that Congress exceeded its Commerce Clause authority. (3) This helps explain the shockwave that swept through both the legal profession and academy when in 1995, the Supreme Court in United States v. Lopez found the Gun Free School Zone Act (GFSZA) of 1990, which criminalized possession of guns within 1000 feet of a school zone, to be an unconstitutional exercise of that authority. (4) Chief Justice Rehnquist, writing for the Court's majority, outlined three categories of regulation to operate as a limiting principle on the scope of Commerce Clause authority: the law must regulate a channel of interstate commerce, the law must regulate an instrumentality of interstate commerce, or the regulated purely intrastate activity must have a substantial effect on interstate commerce. (5) Being neither a channel of interstate commerce, such as a road or a river, nor an instrumentality of interstate commerce, such as a truck or a boat, the GFSZA had to substantially affect interstate commerce to be constitutional. (6) The Court summarily stated that the Act "ha[d] nothing to do with 'commerce,'" thereby placing a limit on Congress in making law under the Commerce Clause. (7)

   Questions arose as to whether the Court had imposed new, permanent limitations on Congressional power or whether Lopez was a mere aberration, nothing more than a flexing of Supreme Court muscle to strike down a law with no connection to commercial activity whatsoever. (8) Those questions were answered in 2000 when the Court again found a law unconstitutional on the same grounds. (9) In United States v. Morrison, the Court reviewed whether the private right of action for victims of violent crimes, created within the Violence Against Women Act (VAWA), overstepped Commerce Clause boundaries). Aside from solidifying the limitations imposed by Lopez, Morrison further defines what is required of a regulation to satisfy the Substantial Effects Category of Lopez. Specifically, the majority opinion stated four factors to aid in the analysis: whether the regulation involves "economic activity," (11) whether Congress included a jurisdictional element to limit scope, (12) whether the stated legislative intent is rational, (13) and the degree to which the regulation has more than an attenuated effect on interstate commerce. (14) In similar fashion to Lopez, the Court declared the VAWA unconstitutional as not involving an economic activity, and hence, not satisfying the Lopez Substantial Effects Category. (15)

   Justice Thomas concurred in Lopez, sparking a dialogue among scholars about the original meaning of the word "commerce" at the time of Constitutional ratification. (16) He reminded the Court of the deviations in the meaning of commerce caused by the New Deal. (17) In a future case, he opined, the Court should "reconsider [the] 'substantial effects' test with an eye toward constructing a standard that reflects the text and history of the Commerce Clause without totally rejecting our more recent Commerce Clause jurisprudence." (18) This statement was a call to arms to all Originalists to precisely determine the original meaning of "commerce." (19) Although this body of work has been painstaking, the academics involved in this debate consciously rejected the majority's Lopez and Morrison tests, instead focusing on a return to an original meaning of the Commerce Clause. (20)

   Meanwhile, the lower courts confronted with Commerce Clause questions began interpreting the majority's tests. Since Morrison was decided, the new Commerce Clause analysis has been haphazardly applied by the lower courts, and the culprits for this inconsistency have been the Economic Activity Test, conjoined with the Attenuation Factor. (21) Furthermore, the Court created these new Commerce Clause tests while reviewing criminal regulation. (22) The message sent to Congress was that although outer limits had always existed on Commerce Clause authority, (23) those limits are broad and stretch into a realm rarely associated with commercial or economic activity--criminal law. (24) The majority's tests provided little guidance to the lower courts for finding the boundary between economic criminal conduct and noneconomic criminal conduct. As such, circuit splits have arisen in a menagerie of criminal law suits addressing constitutionality under the Commerce Clause. For instance, the Fifth Circuit held that a law criminalizing possession of child pornography made with material traveling through interstate commerce is constitutional. (25) In contrast, the Ninth Circuit found the same law unconstitutional when applied to the owner of a photograph in which both herself and her ten-year-old daughter were depicted exposing themselves explicitly. (26)

   This paper's purpose is to impersonate a Machiavellian scribe, whispering in the collective ear of the circuit court judges confronting Commerce Clause challenges. The debate over the original intent of "commerce" is set aside, with focus being diverted to the operation of the Economic Activity Test, coupled with the Attenuation Factor. (27) In the interests of uniformity among the lower courts, consistency with Lopez and Morrison, and a structured and principled rule of law, this paper proposes the following limiting interpretation of the two Morrison factors. First, a law that directly affects some exchange, transaction, or contract of value to all engaged parties is a regulation of an economic activity. (28) Second, a law that has the purpose of regulating some exchange, transaction, or contract of value to all engaged parties is a regulation of an economic activity. (29) In determining whether a taw has the purpose of regulating valuable transactions, courts should review whether a jurisdictional element is employed as well as the intent of the legislature in passing the law. (30) A law that satisfies either the direct effect or the purpose category substantially effects interstate commerce, satisfies Lopez and Morrison, and is resultantly constitutional.

   Section II of this paper briefly surveys the history of the definition of commerce and shows how its ever-changing definition has been central to the variation in breadth of the enumerated power. Additionally, the inconsistencies among the circuit courts in application of Morrison's Economic Activity Test are explained in this section. In Section III, the limited Economic Activity interpretation proposed by this paper is itself tested. First, the structure of the analysis is explained, and justifications for a limited interpretation of Lopez and Morrison are presented. This paper's test is also applied to past Supreme Court precedent as a means of validation in this Section. Although much of the Lopez and Morrison Commerce Clause analysis is flexible and interpretable, the Supreme Court was adamant that neither case overturned past Commerce Clause precedent. Per this stance, any Commerce Clause interpretation that produces results in conflict with past precedent does not comport with either Lopez or Morrison. Whether these two cases were correctly decided or not, the overarching goal of the limited Economic Activity interpretation proposed here is to conform the lower courts to Morrison, not to conform Morrison to an Originalist's, Textualist's, or Pragmatist's interpretation of the Commerce Clause. This interpretation is no more relevant than a Commerce Clause cocktail party anecdote if unable to derive the results previously reached by the Court. Finally, Section IV is devoted to applying this newly minted limited Economic Activity interpretation to the quagmire of lower court criminal law decisions that motivated this paper. This section explains how adoption of the proposed interpretation creates a uniform standard and alleviates the current inconsistencies among the lower courts. The battleground for the New Federalism has formed in the realm of criminal law, which typically has little to do with economic activity. (31) A clear approach to adjudicating Commerce Clause attacks is needed if the Court's New Federalism is to survive in the lower courts.

2. A SURVEY OF THE INCONSISTENT MEANING OF COMMERCE AND SOME RECENT EFFECTS OF THAT INCONSISTENCY

   The breadth of the power to regulate commerce among the several states has wildly fluctuated throughout the nation's history. Until the late nineteenth century, however, the Court barely addressed the scope of the power conferred on Congress by the Commerce Clause. The general law was that regulation of commerce included the regulation of people in the process of, and activities associated with, conducting transactions of commodities. (32) With respect to criminal regulation, the Commerce Clause extended to acts interfering with, obstructing, or preventing the exercise of power to regulate commerce and navigation among the several states. (33) The power decreased just prior to the turn of the century with the passing of the Interstate Commerce Act of 1887 and the Sherman Anti-Trust Act of 1890. (34) The Court began distinguishing between activities involving mining, manufacturing, or agriculture and those involving commerce, extending Congressional lawmaking authority to the latter but not the former. (35) During this time, the Court also experimented with drawing Commerce Clause distinctions between those regulations having direct effects on commerce and those having indirect effects. (36) In 1937, after a period during which the Court rejected a series of New Deal regulations designed...