United States v. Morrison, the Commerce Clause and the Substantial Effects Test: No Substantial Limit on Federal Power

• Publication year: 1999
• Citation: Vol. 34

34 Creighton L. Rev. 675. UNITED STATES V. MORRISON, THE COMMERCE CLAUSE AND THE SUBSTANTIAL EFFECTS TEST: NO SUBSTANTIAL LIMIT ON FEDERAL POWER

Creighton Law Review

Vol. 34

Arthur B. Mark, III - '02

INTRODUCTION

In 1850, the French political economist Frederic Bastiat decried the laws under European monarchs as "[t]he law perverted! . . . [t]he law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose!"(fn1) Bastiat implored his readers to "look at the United States . . . where the law is kept more within its proper domain."(fn2) In looking at United States v. Morrison,(fn3) and its underlying rationale, Bastiat would see the law "turned from its proper purpose and made to follow an entirely different purpose."(fn4) The law in question is the Commerce Clause, part of Article I, section 8 of the United States Constitution, a section devoted to limiting the federal government's reach into the lives of individuals through commerce.(fn5) During the New Deal era, the Court transformed the Commerce Clause from its proper purpose of placing a limit on what conduct the federal government could control.(fn6) By creating the substantial effects test in 1937, the Court turned the Commerce Clause into a license under which Congress began regulating all manner of private conduct.(fn7) Under the Court's New Deal jurisprudence, the Court evaluates federal laws passed by Congress under the guise of regulating com-merce.(fn8) Although the Court's decision in Morrison employed the substantial effects test to strike down an attempt by Congress to regulate violence against women,(fn9) the substantial effects test fails to prevent Congress from reaching a large amount of intrastate, private conduct.(fn10)

First, this Note will examine the application of the substantial effects test by reviewing the facts and holding in Morrison.(fn11) Second, this Note will explore the original understanding of the Commerce Clause in the context of the doctrine of enumerated powers and previous Commerce Clause jurisprudence, by reviewing cases before and after the Court articulated the substantial effects test in 1937.(fn12) Third, this Note will examine the substantial effects test and explain why Commerce Clause jurisprudence prior to the New Deal represents an interpretation of the Commerce Clause in line with the Constitution's structure of limited enumerated powers.(fn13) Finally, this Note will argue that the Court should reconsider the substantial effects test and return to an understanding of the Commerce Clause reflected in its pre-New Deal jurisprudence.(fn14)

FACTS AND HOLDING

In 1994, Antonio Morrison, James Crawford and Christy Brzonkala were all students of Virginia Polytechnic and State University ("VPI").(fn15) Morrison and Crawford were members of VPI's football team and Brzonkala was a prospective member of the women's softball team.(fn16) On September 21, 1994, Morrison and Crawford raped Brzonkala in a dormitory room.(fn17) Morrison and Crawford, taking turns, forced Brzonkala to submit to vaginal intercourse three times.(fn18) After raping her, Morrison told Brzonkala, "[y]ou better not have any fucking diseases."(fn19) Brzonkala did not bring criminal charges against Morrison or Crawford because she did not know their full identities until February 1995, and she further believed that "her failure to preserve physical evidence foreclosed any criminal charges."(fn20) Brzonkala learned Morrison's full identity after a fellow student told her about Morrison stating publicly that he liked taking sexual advantage of drunk girls.(fn21) Subsequently, Brzonkala bought charges against Morrison and Crawford under VPI's Sexual Assault Policy in February 1995.(fn22)

VPI conducted a hearing but stated the charges were being considered under VPI's Abusive Conduct Policy, an older code.(fn23) Morrison admitted to having non-consensual sex with Brzonkala, but Crawford denied any role in the rape.(fn24) The committee issued a determination of guilt against Morrison and imposed a two semester suspension as punishment.(fn25) The committee failed to find sufficient evidence to rule against Crawford.(fn26) Morrison appealed his sanction, but the appeals officer upheld his suspension.(fn27)

Morrison hired an attorney who threatened to sue VPI on the grounds VPI had charged him ex post facto under the new Sexual Assault Policy, which had only been released for publication to students on July 1, 1994, and was not included in the Student Handbook at the time he committed the rape.(fn28) Not wanting to face a lawsuit, VPI agreed to give Morrison a de novo rehearing under the older Abusive Conduct Policy.(fn29) Two VPI officials visited Brzonkala and convinced her to take part in the second hearing.(fn30)

At the rehearing, the judicial committee heard testimony from Brzonkala and once again imposed the two semester suspension on Morrison.(fn31) Morrison again appealed, and this time the appeals com-mittee set aside the sanction and reduced the charge against Morrison from abusive conduct to using abusive language.(fn32) When Brzonkala learned of the reduced charge and the set aside of the suspension, she, fearing for her safety, decided not to return to VPI in Fall 1995.(fn33) Shortly after she cancelled her return to VPI, Brzonkala filed suit against Antonio Morrison; James Crawford; Cornell Brown; William Landsidle, Comptroller of the Commonwealth ("Comptroller Landsidle"); and VPI, in the United States District Court for the Western District of Virginia.(fn34) Brzonkala's claims arose out her rape by Morrison and Crawford and VPI's treatment of her complaint under VPI's Sexual Assault Policy.(fn35)

Brzonkala alleged various claims under Title IX of the Education Amendment Act,(fn36) Title III of the Violence Against Women Act ("VAWA"),(fn37) and state law.(fn38) The district court considered Brzonkala's claims in two separate opinions.(fn39) In Brzonkala v. Virginia Polytechnic & State University(fn40) ("Brzonkala I"), the court dismissed the Title IX claims of sexual discrimination and creation of a hostile environment against VPI and Comptroller Landsidle, finding Brzonkala failed to state a claim as required by Rule 12(b)(6) of the Federal Rules of Civil Procedure.(fn41) In Brzonkala v. Virginia Polytechnic & State University,(fn42) ("Brzonkala II") the court addressed Brzonkala's claims under the VAWA.(fn43)

Brzonkala argued VPI discriminated against her under Title IX on the basis of sex.(fn44) However, the district court found insufficient facts to sustain her claims.(fn45) The court found Brzonkala's facts failed to demonstrate that gender motivated VPI's actions.(fn46) Because Brzonkala failed to show that VPI's actions were motivated by gender animus, she could not state claims against VPI and Comptroller Landsidle under Title IX.(fn47)

In considering Brzonkala's claim under the VAWA, Chief Judge Jackson Kiser first found Brzonkala had stated sufficient facts to survive a motion to dismiss under Rule 12(b)(6) of Federal Rules of Civil Procedure.(fn48) Judge Kiser found Brzonkala stated a claim against Morrison under VAWA, because she alleged a rape motivated by gender animus as shown by Morrison's two derogatory statements.(fn49) The court also dismissed Brzonkala's VAWA claims because it found Congress had no authority under the Commerce Clause to pass 42 U.S.C. § 13981.(fn50)

The district court noted that of the three categories under which Congress can make law under the Commerce Clause, it would evaluate the VAWA under the category of activity having a substantial effect on interstate commerce.(fn51) Using the substantial effects analysis set forth in United States v. Lopez,(fn52) the court discussed a four part test: "(a) Nature of the Regulated Activity, (b) Individual Case Inquiry, (c) Relevance of Legislative History, and (d) Practical Implications."(fn53) First, the court found that violence against women is an intrastate, non-economic activity and the economic effects stated in the congressional record were too distant from interstate commerce to justify regulating violence against women.(fn54) Second, the court found the VAWA contained no jurisdictional requirement that limited "each individual case . . . to situations involving interstate commerce."(fn55) Third, despite Congress' extensive record of hearings on violence against women and the supposed effect of violence on productivity and workforce participation, the court concluded that "[t]he Commerce Power is based on a reasonable effect on interstate commerce, not on Congress' perceived effect on commerce."(fn56) The court decided the VAWA regulated activities with no reasonable effect on interstate commerce because the causal chain between a violent act against a woman and the effect on interstate commerce involved too many tenuous links.(fn57) The court noted Congress' extensive findings regarding the impact on violence against women on the national economy was not the same as showing a substantial effect on interstate commerce.(fn58) Finally, the court concluded the practical implications of the VAWA were that if Congress has the power to regulate crimes of violence motivated by gender because of the remote effects on interstate commerce, then there is very little private activity Congress could not reach.(fn59) The court found that the federal government would encroach...