United State v. Lopez

Question 1

Facts

Answer 1

Alfonso Lopez
•San Antonio high school student brought gun to school
•Was planning to sell the gun to fellow student

Could have been charged under a TX law (yes TX had gun control laws)
•Or a federal law –Gun Free School Zones Act (GFSZA) of 1990 (passed Congress with only one vote against, signed by President George H.W. Bush)
•Or both laws

Question 2

Issue

Answer 2

• Whether Congress has the Commerce Clause authority to regulate gun possession near schools.
• Held 5-4 (Rehnquist writing) NO. If Congress can regulate something so far removed from commerce, then it could regulate anything.
• Breyer’s dissent argues there is no meaningful difference between this law and others upheld by the Court (including the 1964 Civil Rights Act)

Question 3

Regulatory Categories

Answer 3

•Congress can regulate

1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
3. Local activity that has a substantial effect on interstate commerce

Question 4

Channels of interstate commerce

Answer 4

Conduits  through  which interstate  commerce is conducted
•Navigable  waterways, airspace
•Highways, railroads
•Telephone  lines
•The internet 

Other channel cases read this semester: Gibbons v. Ogden

Question 5

Instrumentalities of interstate commerce

Answer 5

The persons or goods in interstate commerce
•Even if the threat may come only from intrastate activities

What instrumentalities cases have we read this semester?
•Hammer v. Dagenhart
•United States v. Darby
•Heart of Atlanta Motel v. United States

Question 6

Activity that substantially affect interstate commerce

Answer 6

Aggregation principle + deference to Congress
•Whether Congress could have rationally concluded that the local activity, when aggregated, has a substantial economic effect on interstate commerce

What substantial effects cases have we read?
•Wickard v. Fillburn
•Heart of Atlanta Motel v. United States

Question 7

Activity DOES NOT substantially affect- Neces. + Proper

Answer 7

Adding the Necessary and Proper Clause
•Court will uphold a provision if it is an “essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated

”•Will be important for Gonzalez v. Raich

Question 8

Activity does not substantially effect + FLSA

Answer 8

We’ve encountered this before (not excerpted effectively)
•Fair Labor Standards Act required businesses to keep records of
1) how many hours worked
2) wages paid to workers
•Failure to keep records was a crime

•Recording keeping is local activity but it doesn’t affect commerce like growing wheat does

BUT if Congress has the right to act successfully
•Easier to enforce the FLSA if it can check businesses books

Question 9

How GFSZA falls short (1) - Relation to Commerce

Answer 9

Criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms
•Does not regulate gun sales that occur near schools
•Not an essential part of a larger regulatory scheme

Question 10

How GFSZA falls short (2) - blank effects commerce

Answer 10

Contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce

•Some gun possessions might affect interstate commerce, others might not
•Law applies across-the-board•
No requirement for prosecutors to prove a connection to interstatcommerce

Question 11

How GFSZA falls short (3) - past cases

Answer 11

•Where have we seen jurisdictional elements before?

• United States v. Darby
• Only triggered if some raw materials purchased from out state or some products sold out of state
• Heart of Atlanta Motel v. United States
• Only applies to places of public accommodation (where interstate commerce occurs)

Question 12

Government’s argument

Answer 12

“Possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy”

1. Raises insurance prices across state lines (cost of crime)
2. Reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe
   3 .A handicapped educational process, in turn, will result in a less productive citizenry

Question 13

Cost of crime

Answer 13

The insurance issue is real
•Homeowners insurance AND car insurance rates are substantially higher in Baltimore City than Baltimore County

• “The Government admits, under its ‘costs of crime’ reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.”
• Results in no meaningful limit on Congress’ power

Question 14

National productivity

Answer 14

Under the Government’s “national productivity” reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example….”
•Same parade of horrible raised by Four Horsemen of the Apocalypse in 1937

“If Congress can…regulate activities that adversely affect the learning environment, then…it also can regulate the educational process directly.
”•No limit to federal power

Question 15

Inference upon inference (no sep of power)

Answer 15

•“To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”

Question 16

Souter dissent

Answer 16

•Real issue is uncontrolled judicial power (not congressional)

Going back to pre-1937
•“There is today [a] backward glance at [the] old pitfalls, as the Court treats deference under the rationality rule as subject to gradation according to the commercial or noncommercial nature of the immediate subject of the challenged regulation. The distinction between what is patently commercial and what is not looks much like the old distinction between what directly affects commerce and what touches it only indirectly….Thus, it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost 60 years ago

Question 17

Breyer’s dissent (rational conclusion)

Answer 17

“[The] Constitution requires us to judge the connection between a regulated activity and interstate commerce, not directly, but at one remove.”
•The issue is NOT whether a law regulates something commercial

•The issue is whether Congress could have rationally concluded that something posed a commercial problem

Mistake to think regulating gun possession is the end goal
•Court in Darby did not treat the FLSA as “Wages and Hours” Act
•Gun possession is a tool to regulate something economic

Question 18

Breyer’s dissent- how do you view the commerce connection –> rationally concluded that violent crime in school zones…

Answer 18

• Different issue statement
• Congress rationally have found that “violent crime in school zones,” through its effect on the “quality of education,” substantially affects “interstate” or “foreign commerce”?

•“As long as one views the commerce connection, not as a ‘technical legal conception,’ but as ‘a practical one,’ Swift & Co. v. United States, the answer to this question must be yes”

Question 19

Breyer’s dissent (3) - Wheres the connection

Answer 19

Where’s the connection
•“For one thing, reports, hearings, and other readily available literature make clear that the problem of guns in and around schools is widespread and extremely serious.”

“There is evidence that, today more than ever, many firms base their location decisions upon the presence, or absence, of a work force with a basic education….”

Question 20

Breyer’s dissent- Paul v. daniel

Answer 20

Not in excerpt –Daniel v. Paul

•“[T]his Court found an effect on commerce caused by an amusement park located several miles down a country road in the middle of Alabama—because some customers (the Court assumed), some food, 15 paddleboats, and a juke box had come from out of state. [T]he Court understood that the specific instance of discrimination (at a local place of accommodation) was part of a general practice that, considered as a whole, caused not only the most serious human and social harm, but had nationally significant economic dimensions as well.”

Question 21

Breyer’s dissent

Answer 21

• Not in excerpt –The issue isn’t Congress having unchecked power but the Court having unchecked power
• “…problem created by the Court’s holding is that it threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled. Congress has enacted many statutes (more than 100 sections of the United States Code), including criminal statutes (at least 25 sections), that use the words ‘affecting commerce’ to define their scope…and other statutes that contain no jurisdictional language at all. Do these, or similar, statutes regulate noncommercial activities? If so, would that alter the meaning of ‘affecting commerce’ in a jurisdictional element?”

Question 22

How to transform this law?

Answer 22

From invalid to valid use of local activity/substantial effect
•Jurisdictional nexus (element) proving that particular possession affected interstate commerce

• From local activity/substantial effect to instrumentalities
• “There is no requirement that his possession of the firearm have any concrete tie to interstate commerce”
• Gun that has moved through interstate commerce cannot be used near schools
• No gun sales may take place near schools