Reversing the tide under the Commerce Clause.

• Author: Mikhail, Sheila A.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   America's children are at war and the school yard is the battlefield. During 1990 alone, nearly 4,200 teenagers were killed by guns.(1) Not including accidental deaths and suicides, it is expected that 120 American children under the age of eighteen years will be slain by gunfire this month.(2) In fact, more youths will die in our nation's streets every 100 hours than were killed during 100 hours of ground war in the Persian Gulf.(3) Much of the killing occurs on the school ground. During the academic years of 1986-1990, sixty-five students were killed with guns at school.(4) An additional 201 individuals were severely wounded, and another 242 were held hostage at gunpoint.(5) On an annual basis, 39% of urban school districts report a shooting or knifing, and 23% report drive-by shootings.(6) Teachers are also victims of the violence. Each day in the United States, 6,250 teachers are threatened with violence and 260 teachers are physically assaulted.(7) To combat gun violence occurring at school, Congress enacted the Gun Free School Zones Act of 19908 (the Act).

   The Act makes it unlawful "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."(9) Under the Act, violators are subject to penalties of up to five years imprisonment and a $5,000 fine.(10) The Act defines a "school zone" as the grounds of a public, private, or parochial school, or property within 1,000 feet of such premises.(11)

   In United States v. Lopez,(12) the United States Supreme Court, in a five to four decision, held that the Gun Free School Zones Act was an impermissible exercise of Congress' legislative authority under the Commerce Clause.(13) The Supreme Court emphasized the lack of express congressional findings linking the Act to interstate commerce, and the traditional role of local government over educational concerns.(14)

   This Note first argues that the Supreme Court, by failing to apply the well established rational basis standard of review to its constitutional analysis of the Gun Free School Zones Act, wrongly decided the fate of the Act. Under the rational basis test, the relevant judicial inquiry is whether Congress could have rationally concluded that gun possession at school affects interstate commerce. Because Congress, in related gun control legislation, specified the link between juvenile gun possession and interstate commerce, Congress could have rationally concluded that guns at school affect interstate commerce. Furthermore, even if Congress was required to provide express findings linking gun violence in the schools with interstate commerce, it did so, albeit retroactively.

   In finding constitutional authority under the Commerce Clause for the Gun Free School Zones Act, this Note examines judicial scrutiny of other gun control legislation, as well as broader social policy initiatives. In so doing, this Note reconciles Congress' ability to regulate through its commerce power over areas traditionally left to the state or local government, such as crime and education, with states' rights under the Tenth Amendment.

   Finally, this Note argues that the Supreme Court erred in determining that gun violence at school does not substantially affect interstate commerce. The existence of guns in schools creates an intimidating learning environment which deteriorates the quality of American education. A substandard educational process creates a workforce which produces poorer quality goods and services. Given that these outputs are traded in interstate commerce, guns at school substantially affect interstate commerce. This Note thus concludes that the Gun Free School Zones Act was a permissible exercise of Congress' commerce power.

2. BACKGROUND

   The Supreme Court, in determining that the Gun Free School Zones Act was an impermissible exercise of Congress' legislative authority, cited the lack of express congressional findings linking the Act to interstate commerce,(15) emphasized the intrastate nature of education,(16) and expressed a desire to reserve educational issues to the domain of local government.(17) This section first reviews relevant constitutional jurisprudence including the evolution of Congress' expanding power under the modern Commerce Clause and the interrelated inquiry of local government sovereignty under the Tenth Amendment. Second, this section provides a brief synopsis of the legislative and judicial development of the Gun Free Schools Zone Act and compares the Act to other related federal gun control initiatives that have mustered judicial scrutiny.

   1. CONSTITUTIONAL JURISPRUDENCE: THE COMMERCE CLAUSE & THE TENTH AMENDMENT

      Under the Commerce Clause, the Constitution delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States."(18) If Congress exercises legislative power beyond that delegated to it under the Commerce Clause, it may also violate the Tenth Amendment,(19) for both issues are interrelated.(20) If a power is delegated to Congress, through the Commerce Clause for example, the Tenth Amendment expressly disclaims any reservation of the power to the States.(21) Conversely, if a power is reserved to the States under the Tenth Amendment, it is necessarily a power not conferred on Congress.(22)

      1. Judicial Evolution of the Commerce Clause

         It has been said that the modern scope of Congress' commerce power is broad and "grants the federal government jurisdiction so long as it can show . . . that the regulated activity burdens, obstructs, or affects interstate commerce, however indirectly."(23) As discussed below, such a view reflects the broad latitude given to Congress' commerce power when it was initially defined by Chief Justice Marshall over 170 years ago in Gibbons v. Ogden.(24) Such a view is also consistent with Congress' recent exercise of the Commerce Clause to achieve social objectives in the areas of Civil Rights(25) and crime control.(26)

         1. Gibbons v. Ogden: the Foundation

            The Commerce Clause received its initial interpretation in Gibbons v. Ogden.(27) In Gibbons, Chief Justice Marshall, writing for the Court, held that a 1793 federal statute licensing ships preempted a New York navigation license that would have granted a monopoly on interstate steamboat trade between New York and New Jersey.(28) The Chief Justice broadly interpreted "commerce among the several states" as "that commerce which concerns more states than one," even where such intercourse reaches inside the boundaries of each state it touches.(29) In Chief Justice Marshall's reading, only that commerce which is exclusively internal to a state and does not affect other states would be precluded from the reach of the Commerce Clause.(30) Moreover, Chief Justice Marshall described Congress' commerce power as plenary: "[t]his power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitation, other than those which are prescribed in the Constitution."(31) According to many scholars and judges, Gibbons gave the Commerce Clause the broad scope it enjoys today.(32)

         2. Using the Commerce Clause to Achieve Police Power

            Although the Constitution did not grant Congress a national police power,(33) Congress attempted to achieve police power objectives though the exercise of its commerce power.(34) The Supreme Court initially approved a restrictive use of Congress' commerce power to police goods moving in interstate commerce.(35) In establishing the boundaries of this "police power" the Court established a "direct" versus "indirect" test.(36) The Court held that activities that affected interstate commerce directly were within Congress' powers, while activities that affected interstate commerce only indirectly were beyond Congress' reach.(37) Accordingly, Congress could prohibit the interstate transport of "contraband" such as lottery tickets,(38) impure foods,(39) and stolen vehicles.(40) Congress, however, could not regulate "production,"(41) "manufacture,"(42) and "mining"(43) activities because these were seen as local activities which only indirectly affected interstate commerce. Simultaneously, however, the Court held that, where the interstate and intrastate aspects of commerce were so intermingled that full regulation of commerce required incidental regulation of intrastate commerce, the Commerce Clause authorized such regulation.(44)

         3. The New Deal Cases

            In the 1930s, Congress extended its use of the Commerce Clause beyond federal police power objectives when it used the Commerce Clause to pass President Franklin D. Roosevelt's New Deal agenda. After initial resistance by the Court, an unsuccessful attempt by President Roosevelt to pack the Court, and the subsequent retirement of seven of the nine Supreme Court justices, the President was able to achieve judicial approval of his progressive New Deal legislation.(45) Through judicial appointments,(46) President Roosevelt was able to strengthen the power of the federal government and return the breadth of the commerce power to that initially granted in Gibbons v. Ogden.(47) Three cases epitomize the New Deal jurisprudence: National Labor Relations Board v. Jones & Laughlin Steel Corp.,(48) United States v. Darby,(49) and Wickard v. Filburn.(50)

            In NLRB v. Jones & Laughlin Steel Corp.,(51) the Court upheld the National Labor Relations Act of 1935 against a Commerce Clause challenge.(52) The Court abandoned the "direct" and "indirect" effects test, and concluded that the correct inquiry was whether an intrastate activity has "such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions."(53)

            In United States v. Darby,(54) the Supreme Court upheld Congress' ability to prohibit shipment in interstate commerce of goods produced in violation of the wage and hour provisions...