Copyright (c) 1999 Loyola Law Review Loyola Law Review
45 Loy. L. Rev. 541
LENGTH: 8722 words
LOPEZ SPEAKS, IS ANYONE
Judge David B. Sentelle *
* Judge, United States Court of Appeals for the D.C. Circuit,
Washington, D.C. This speech was presented at Loyola University New Orleans
School of Law on April 16, 1999 as part of a faculty colloquium.
SUMMARY: ... In 1788, James Madison wrote, under the name of Publius, a
comprehensive description of the nature of our federalism: "The powers
delegated by the proposed constitution to the federal government, are few and
Briefly, under Lopez, to be the subject of constitutionally valid
regulation under the Commerce Clause, an activity not falling within categories
one or two must substantially affect interstate commerce, not merely affect it.
... The Court highlighted the government's admission that under this "costs of
crime" reasoning, the federal government 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." ... Again, this circuit waved at
Lopez as it went by, recited the generalities of interstate commerce, and
upheld the constitutionality of the statute, both facially and as applied. ...
In his view, before Lopez, the inferior federal courts might credibly "conclude
that although section 2119 'may stretch the outer limits of the Commerce
Clause, under current doctrine it is not unconstitutional.'" ... However, that
majority accepted the plaintiff's argument that VAWA was constitutional under
the third category as a regulation of an activity that substantially affects
interstate commerce. ... Having said that, in the view of the Brzonkala panel,
the judiciary has no apparent role left in reviewing constitutionality of a
commerce power exercise once Congress has taken evidence and entered some sort
of finding. ...
In 1788, James Madison wrote, under the name of Publius, a comprehensive
description of the nature of our federalism: "The powers delegated by the
proposed constitution to the federal government, are few and defined. Those
which are to remain in the state governments, are numerous and indefinite." n1
Among those few and defined powers which the Constitution delegated to the
federal government was the congressional power "to regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes."
Barely over a year after Madison wrote that description, the
Constitution, including the Commerce Clause, became effective among the
ratifying states. Almost 207 years after that ratification, the Supreme Court
had before it a case calling into question the constitutionality of a statute
in which Congress had made it a federal offense "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." n3 The only justification the United
States could offer among the enumerated powers for the constitutionality of the
statute was the Commerce Clause. But as Chief Justice Rehnquist stated in his
opinion, "the Act neither regulates a commercial activity nor contains a
requirement that the possession be connected in any way to interstate
commerce." n4 And yet, so great was the surprise in the legal academic
community that anyone would even question the constitutionality of the act that
the distinguished dean of [*542] a distinguished west coast law school (and I
might add not a particularly liberal dean, especially for distinguished west
coast law schools) declared in a Federalist Society Symposium that not a single
Justice would vote to uphold the Fifth Circuit's decision that the statute was
unconstitutional. He was certain enough to bet me a dinner (which he has never
paid) that there would not be as many as three Justices voting to declare the
Get that picture. The only justification for this statute within the
enumerated powers is the power of Congress to regulate commerce among the
several states. The statute in question does not regulate commerce and does not
require any connection to an interstate activity. And yet, there was at large a
certainty that we could have interstate commerce without interstate and without
commerce, rather like having ham and eggs without either ham or eggs. What had
happened in 207 years, and what was going to happen next?
What had happened over those years was a sometimes gradual, sometimes
rapid upward racheting of federal power at the expense of the people and the
states. The Commerce Clause was the most conspicuous socket for that rachet.
After the ratification of the Constitution, Article 1, Section 8, Clause 3,
mostly just lay there until about 1824. In that year, the High Court considered
a shipping dispute arising from New York's purported grant of exclusive
navigation rights within that state. n5 The operator of steam boats running
between New York and New Jersey sought to enjoin the enforcement of the New
York acts creating exclusive rights. n6 He won. n7
Chief Justice Marshall delivered the opinion of the Court in which he
established three important directions of interstate commerce jurisprudence. n8
First, commerce is broader than traffic. n9 It includes "commercial intercourse
between nations, [*543] and parts of nations, in all its branches." n10
Secondly, the Gibbons case established the negative side of the commerce power;
that is, that the states cannot interfere with interstate commerce. n11 That is
how Gibbons won. Third, and sometimes lost in the history of the case, the
Gibbons opinion established that "commerce among the several states" does not
give Congress the power over "commerce which is completely internal, which is
carried on between man and man in a state." n12
Justice Joseph Story, in his great early learned treatise on the
Constitution, published less than a decade after the Gibbons v. Ogden decision,
declared that the constitutional authority to regulate commerce could not be
applied to the perhaps worthy "purpose of encouraging and protecting domestic
manufacturers." n13 He rejected the notion that the definition of commerce
could extend to include manufacturing, and did so expressing the fear that to
so expand the reach of the Commerce Clause would render "the enumeration of the
powers of congress . . . unnecessary and nugatory." n14 As proof of his
proposition, Justice Story trotted out a parade of horribles in which
"agriculture, colonies, capital, machinery, the wages of labour, the profits of
stock, the rents of land, the punctual performance of contracts, and the
diffusion of knowledge would all be within the scope of the commerce power; for
all of them bear an intimate relation to commerce." n15 In other words, the
Constitution, as understood by the Supreme Court in the early years, did not
under the rubric of interstate commerce empower the federal government to
regulate that which was not commerce, or commerce that was not interstate.
With that, we fast forward. In 1942, the Court held that the federal
government under the Commerce Clause could regulate a farmer's production of
wheat on his own land for home [*544] consumption. n16 Neither time nor energy
permits, nor does necessity compel that I go through step by step the gradual
downward spiral of the rigor of interpretation applied to the Commerce Clause.
Suffice it to say: there had been a sea change. Of course, the advocates of
expanded power for government in general, and the federal government in
particular, saw not the downward spiral of rigor, but an upward progression of
regulatory authority. They saw that progression not simply as a spiral, but as
a rachet, operating in only one direction. So certain were they of the
inevitable direction of the rachet, of its irreversibility, that the west coast
dean was taken with shock when the Fifth Circuit in United States v. Lopez, n17
looked at the non-commercial possession of a chattel in a purely intra-state
setting and said, essentially, "Hey, that's not interstate and it's not
commerce and the federal government can't regulate it under the Commerce
"Wait a minute! What do you mean we can't?" said the federal government,
to the echo of the legal academy. "We do it all the time. We are forever
regulating things that aren't interstate and aren't commerce under the
interstate commerce power. Don't think judges in Texas can tell us what not to
do. We are going to the Supreme Court and get them reversed." They were half
right. They did go to the Supreme Court.
The day the Justices heard oral argument in Lopez, I did something I've
done only two other times. I went over and watched the oral arguments. Drew
Days, the Solicitor General, argued the case himself for the United States. n19
Hardly a minute into his argument, Justice O'Connor asked the first question.
She said something like, "Mr. Days, if we accept the government's position,
what's left of the doctrine of enumerated powers?" [*545]
I was sitting in one of the guest seats of a Justice, and therefore had
a good view, in profile, of the face of the advocate. The Solicitor General
looked like he had been kicked in the stomach. I don't know what he thought the
argument was going to be about that day or what his moot bench had prepared him
for, but it was evident both then and as the argument went on that he had no
answer for that question. A few months later, the Supreme Court released the
decision in the case and I more than won my dinner from the west coast dean.
The federalist position upholding the Fifth Circuit garnered not three, but
In his opinion for the five-Justice majority, Chief Justice Rehnquist
identified "three broad categories of activities" within which the federal
government may legitimately regulate under the commerce power. n20 These three
categories are: "(1) the use of the channels of interstate commerce[, (2) the
regulation and protection of the instrumentalities] of interstate commerce, or
persons or things in interstate commerce, even if the threat involved comes
from intrastate activities[, and (3)] activities having a substantial relation
to interstate commerce." n21 Because the claimed justification for the Gun-Free
School Zones Act sheltered under the umbrella of the third area of activity,
the Chief Justice wrote a further explication of "those activities that
substantially affect interstate commerce." n22 Briefly, under Lopez, to be the
subject of constitutionally valid regulation under the Commerce Clause, an
activity not falling within categories one or two must substantially affect
interstate commerce, not merely affect it. n23
To determine whether an activity substantially affects commerce, we
undertake another tripartite examination, asking whether: [*546]
--the regulation controls a commercial activity, or an activity
necessary to the regulation of some commercial activity;
--the statute includes a jurisdictional nexus requirement to ensure that
each regulated instance of the activity affects interstate commerce; and
--the rationale offered to support the constitutionality of the statute
(i.e., statutory findings, legislative history, arguments of counsel, or a
reviewing court's own attribution of purposes to the statute being challenged)
has a logical stopping point so that the rationale is not so broad as to
regulate on a similar basis all human endeavors, especially those traditionally
regulated by the states. n24
Unsurprisingly, the Court held that the Gun-Free School Zones Act fit
none of those three categories. n25 First, it did not regulate or control a
commercial activity or an activity necessary to the regulation of a commercial
activity. n26 The Chief Justice acknowledged that Wickard v. Filburn, the
homegrown wheat case, was "perhaps the most far reaching example of Commerce
Clause authority over intrastate activities." n27 But he further recognized
that at least the statute before the Court in Wickard involved the regulation
of the wheat market--interstate commerce. n28 In the view of Congress, and
subsequently the Court of that time, the regulation of consumable wheat,
wherever grown, was necessary to control the volume of wheat on that interstate
market. n29 The Gun-Free School Zones Act neither controlled nor purported to
affect any market at all. n30 [*547]
Secondly, the statute included no jurisdictional nexus. Under this
element of examination, the Chief Justice compared United States v. Bass, in
which the Court had upheld the statute making it a crime for a felon "to
'receive, possess, or transport in commerce or affecting commerce . . . any
firearm'." n31 The Chief Justice noted that in upholding that statute, the
Court had expressly reserved the question of whether Congress could
constitutionally regulate the "mere possession" of firearms without the
jurisdictional nexus. n32 Even in Bass, where the statute had withstood
constitutional scrutiny, the Court set aside the conviction before it because
the prosecution, while having proved that the defendant possessed a firearm,
failed "to show the requisite nexus with interstate commerce." n33 The statute
the Court struck down in Lopez had no such jurisdictional requirement. n34
Congress had invaded the state-owned territory of mere possession with no
connection to interstate commerce.
Finally, the Lopez Court considered the implications of the government's
argument that guns around schoolhouses might result in violent crime, and
violent crime could be expected to affect the functioning of the national
economy either through the mechanism of insurance or by reducing the
willingness of individuals to travel to other parts of the country which they
might consider unsafe. n35 The Court highlighted the government's admission
that under this "costs of crime" reasoning, the federal government 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."
n36 Indeed, the federal government "could regulate any activity that Congress
found was related to the economic productivity of individual citizens: family
law (including marriage, divorce, and child custody), for example." n37 In
other words, under the government's [*548] theory of constitutionality for the
Gun-Free School Zones Act, the words of the Commerce Clause were limitless, and
Congress had the power to regulate anything at all. n38 In short, there was no
stopping point. The statute was unconstitutional.
For the first time since the early days of the New Deal, the Supreme
Court had stricken a statute as unconstitutionally beyond the bounds of the
commerce power. At least in the view of some, the Supreme Court had for the
first time in years breathed new life into the apparently moribund principle of
the Tenth Amendment--the sentence that had declared and clarified the very
nature of our federalism: "the powers not delegated to the United States by the
Constitution, nor prohibited to it by the states, are reserved to the states
respectively, or to the people." n39 And so there was another sea change. And
so there was a new bold decision declaring a reversal of the rachet and new
direction, a return of federal power to the states respectively or to the
people. Or was there?
Much of the legal community seems to think not. Much of the academy, and
unfortunately of the bench, seem stuck in the past. They seem to believe that
if they ignore this specter of change, it will go away. In fairness to the
legal academy, the law review writings on the subject of Lopez and its portent
are all over the place. However, a totally unscientific, unsystematic review
makes me think that many professors cluster around the view of H. Jefferson
Powell, who finds Lopez to be a flawed and ultimately ineffective decision
because Rehnquist's logic (which he admits is unassailable on its own terms) is
inconsistent with what he seems to think is the foregone conclusion that the
federal power is as broad as the need to accomplish the "national welfare." n40
That presupposition is of a piece with the one-way rachet.
However, in fairness to the academy, I must say that the lower federal
courts can blame largely ourselves if the academics [*549] regard United States
v. Lopez as a "theoretical bang and practical whimper." n41 If you get on your
computer and search for cases citing Lopez, you will find a plethora of F.3d
cites. You will find many of them frankly identified as "negative cases," that
is those that "declined to extend." If you read the cases signified by the
other citations, that is those that are described as having "examined" or
"discussed," you will find that most of them discussed it and found it
inapplicable or examined it and found it not on point. I will not attempt to
exhaust the catalog of decisions that bypass Lopez in the hope that it will go
away, but I will provide you a smattering which I hope presents both a
representative sample of subject matter and an illustration that nearly all the
circuits are not ready to recognize a sea change.
First, the First Circuit, in United States v. DiSanto, n42 reviewed the
convictions of a defendant charged with violating the federal arson statute.
n43 That statute provides for the federal prosecution and punishment of
anyone who "maliciously damages or destroys . . . by means of fire or an
explosive, any building, vehicle, or other real or personal property used in
interstate or foreign commerce or in any activity affecting interstate or
foreign commerce." n44 The defendant in DiSanto had been convicted of burning
part of his own restaurant. n45 Note: his restaurant was in one state, and it
sold family fare to local customers. n46 Note further: the statute does include
a jurisdictional nexus requirement reciting the words "interstate commerce" but
that stated element does not require that the act prohibited by the statute
affect interstate commerce. n47 The circuit upheld the conviction, acknowledged
the existence of Lopez, but reiterated its pre-Lopez holding that "rental
property is per se 'unquestion [*550] ably sufficiently connected to interstate
commerce to confer jurisdiction' and satisfy the jurisdictional element of the
federal arson statute." n48 Conspicuously, while acknowledging the existence of
Lopez, the circuit limited its terse discussion to the sufficiency of the
evidence to satisfy the jurisdictional element of the statute with no
discussion of the consistency of the statute either on its face or as applied
with the Commerce Clause. n49 Indeed, the DiSanto court only acknowledged the
existence of the Commerce Clause in a single-sentence recognition that Lopez
had held the Gun-Free School Zone Act to be in excess of that constitutional
grant of power. n50
In United States v. Farrish, n51 the Second Circuit affirmed the
judgment convicting and sentencing a defendant for stealing two cars from a
parking garage in New York. n52 That's it. Two counts of car theft. No, I
didn't say anything about transporting them in interstate commerce, or stealing
them from interstate commerce. This defendant stole two cars. We have a federal
district court conducting the trial and a federal court of appeals affirming
the conviction of a car thief. n53 What makes stealing a car a federal case?
Well, it seems the defendant used force and violence in stealing the cars. n54
Before you go thumbing through your Constitution trying to find the force and
violence clause of Article I, there isn't any. This was another interstate
commerce case. It seems the United States charged, the district court
convicted, and the court of appeals affirmed that because Farrish committed a
robbery and not simply a larceny in taking the car, he had violated the Hobbs
Act. n55 That statute provides for the punishment of anyone who "obstructs,
delays, or affects commerce or the movement of any article or commodity in com
[*551] merce, by robbery or extortion." n56
Okay, we've got the robbery. How did this particular robber in any way
or degree obstruct, delay, or affect commerce or the movement of any article or
commodity in commerce? The Second Circuit, after acknowledging the existence of
Lopez, got this statute out from under it by pointing to its jurisdictional
element to bring it within subcategory two of category three. n57 However, that
leaves the question of sufficiency of the evidence in the particular case. The
Second Circuit, so help me, found that the particular robbery met that
jurisdictional element because evidence at trial showed that the garage from
which the cars were stolen regularly served cars bearing out-of-state license
plates. n58 Therefore, reasoned the circuit, "the jury could easily have drawn
the inference that the Garage is utilized by commuters and others traveling to
and from Manhattan across state lines, and that robberies of cars from the
Garage would discourage such travel." n59 Maybe this meets the letter of Lopez.
I'm not so sure. But I do believe that the reasoning of Lopez requires that all
federal regulation of commerce to have a stopping point. The reasoning of this
In United States v. Bishop, n60 the Third Circuit had another sort of
car theft case. n61 It was a carjacking, a quintessentially local crime of
violence. n62 The carjackers were convicted under 18 U.S.C. @ 2119, the Federal
Anti-Carjacking Act. n63 Like the Hobbs Act, section 2119 recites a mantra
about interstate commerce. n64 Again, this circuit waved at Lopez as it went
by, recited the generalities of interstate commerce, and upheld the
constitutionality of the statute, both facially and as applied. n65 [*552]
On the bright side, one judge, though only one, on the Bishop panel
recognized that Lopez had worked a "sea change," and said so in those words.
n66 Judge Becker, after a rigorous analysis applying Lopez to the facts before
the court, declared his belief "that noncommercial intrastate crimes, even ones
receiving publicity in the national media, are a matter of state and not
federal concern." n67 In his view, before Lopez, the inferior federal courts
might credibly "conclude that although section 2119 'may stretch the outer
limits of the Commerce Clause, under current doctrine it is not
unconstitutional.'" n68 But Becker recognized that "Lopez is not just another
Supreme Court case, but a watershed." n69
In United States v. Wall, n70 the court considered the constitutionality
of 18 U.S.C. @ 1955 in the world after Lopez. n71 Section 1955 punished
gambling businesses above a certain size. n72 Here's one step up from the
statutes before the other courts. This was commerce. However, nothing in the
evidence before the court, and nothing in the jurisdictional element, required
any interstate element. n73 The majority in Wall found it sufficient that
Congress had taken evidence and made findings that organized crime receives
funding from gambling businesses and that organized crime affected interstate
Like Bishop, Wall attracted a dissent. n75 Judge Danny Boggs recognized
"that Lopez represents some revival of the slumbering doctrine of enumerated
powers." n76 In an exhaustive dissent, he laid out the three Lopez categories,
analyzed the sub-elements of category three, and demonstrated them in an
impressive flow [*553] chart at page 1463 of the opinion. n77 There's only one
thing wrong with Judge Boggs's dissent. Like all dissents, it tells you what
the law of the circuit isn't.
Next, lest I be accused of false modesty, I come to a case involving a
dissent of my own. National Association of Home Builders v. Babbitt n78 is
perhaps the most blatant rejection of Lopez known to me. That case concerned
the efforts of a county in California to construct a hospital and access roads
thereto. n79 The day before groundbreaking, the Department of Interior added
the Delhi Sands Flower-Loving Fly to the Endangered Species List, notified the
county that the construction of the hospital, on county land using no federal
funds, would harm a colony of six to eight of these flies and would therefore
violate federal law. n80 To avoid federal prosecution, county officials were
forced to move the hospital complex 250 feet to the north and set aside eight
acres of land for the fly, delay construction for a year, and add to the cost
to the county taxpayers a sum of around three and a half million dollars. n81
The Fish and Wildlife Service of course was not satisfied. n82 They
imposed continuing requirements on the county, including the preservation of a
"flight corridor" for the fly, which prevented improvements to a highway
intersection necessary to allow emergency access to the hospital and avoid
virtual gridlock if the fly ever lets the hospital become open. n83 In defense
of the Service, I would note that it has magnanimously dropped its earlier
demand that the county close the eight-lane San Bernardino Freeway two months
every year in order to permit safe passage for the fly. n84 The Service has
further interfered with local brushfire prevention programs and land-use
planning all in the name of the Delhi Sands Flower-Loving Fly. n85 [*554]
What is the constitutional justification for the protection of this fly?
Obviously, it's the interstate commerce power. Now these flies are found only
in a small part of southern California. n86 There is no commercial trade
involving these flies. The Endangered Species Act contains no requisite
jurisdictional element. n87 Again, we have ham and eggs without either ham or
eggs --interstate commerce without either commerce or anything interstate. n88
My colleagues upheld the regulation. n89
My dissent, with which I am well pleased, tracked the Lopez analysis and
saw in the statutory protection of a noncommercial activity of a purely local
nature affecting an intrastate fly neither regulation of the use of the
channels of interstate commerce; nor regulation or protection of the
instrumentalities of interstate commerce or persons and things therein; nor
regulation of activities having a substantial relation to interstate
How did my colleagues determine that this noncommercial intrastate
regulation fell within the power to regulate interstate commerce? Well, they
could not agree on how. Judge Wald found the power in both the second and third
categories of regulation. n90 She concluded that "the prohibition on takings of
endangered animals falls under Congress' authority 'to keep the channels of
interstate commerce free from immoral and injurious uses.'" n91 If you want to
know how, I can only suggest that you read the opinion. I don't understand it.
Her second justification is at least understandable. She concluded that
the regulated activity substantially affects interstate commerce, by relying on
a decision, n92 Terry v. Reno, n93 in which we had upheld the Freedom of Access
to Clinic Entrances [*555] Act against a Commerce Clause challenge.
that decision we had concluded that Lopez did not restrict the Commerce Clause
power to activity that is commercial in and of itself. n95 She then reasoned
that because biodiversity, or the loss of it, could affect interstate commerce,
the preservation of diverse species was within Congress' commerce power. n96
I cannot agree that this fits within category three. Judge Wald concedes
that the activity is not commercial; she concedes that the statute does not
have the jurisdictional nexus requirement, so that if this regulation is to
survive under category three, then it must have a logical stopping point. It
must not be so broad as to regulate all human endeavors, especially those
traditionally regulated by the states. Judge Wald's rationale has no such
stopping point. The presence of absence of biodiversity, neither more nor less
than the presence or absence of any other characteristic of physical objects
affects interstate commerce. If Congress has the power to make sure there are
plenty of species of animals and plants out there in case they might be in
commerce some day, then Congress must have the power to make sure there are
plenty or few of any other object, thing, or entity, because anything might
some day be in commerce. Especially shaky is this rationale as it invades the
traditional state province of local land-use regulation.
Judge Henderson rejected Judge Wald's channels-of-commerce
justification. n97 However, she agreed with Judge Wald that category three
supported congressional authority to control the discomfiting of purely local
fauna. n98 While she rejected the biodiversity idea by its terms, she advanced
a rationale of her own that is not logically superior to it. n99 In her view,
as I understand it, the regulation is within the commerce power because it
protects ecosystems which are parts [*556] of other ecosystems, which in turn
are interstate, which apparently could affect commerce. n100 No better I think
Without attempting to catalog all the circuits, I may have left you with
the idea that the entire legal world treats Lopez like nature treated the mule:
it has neither pride of ancestry nor hope of progeny. Happily, I can tell you
that neither sad mulish circumstance is entirely true.
First, Lopez is not without ancestors. That is to say, it need not have
been the surprise that so much of the legal community found it to be. At least
twice in the five-year period next preceding Lopez, the Supreme Court had given
strong signal that the principle of the Tenth Amendment, and therefore the
concomitant doctrine of the limited power of the federal government, was alive,
if not alive and well. In Gregory v. Ashcroft, n101 the Court considered the
claim that the Federal Age Discrimination in Employment Act prevents the state
of Missouri from mandating retirement for its elected judges. n102 Justice
O'Connor, in an opinion joined in whole by Chief Justice Rehnquist and Justices
Scalia, Kennedy, and Souter, and in part by Justices White and Stevens,
rejected that claim. n103 She did so recognizing that "just as the Framers of
the Constitution intended the States to keep for themselves, as provided in the
Tenth Amendment, the power to regulate elections . . . each State has the power
to prescribe the qualifications of its officers and the manner in which they
shall be chosen." n104 There it is, the Tenth Amendment. That's the Supreme
Court, expressly recognizing the retained powers of the states under the Tenth
Amendment in 1990.
Just two years later, in New York v. United States, n105 Justice
O'Connor again wrote for a majority of six, with two more joining [*557] in
part. n106 In that case, the Court considered the constitutionality of a
statutory scheme that required a state, if it had not met certain conditions,
to take title to and possession of radioactive waste upon the request of the
generator or owner of that waste. n107 Again citing the Tenth Amendment,
Justice O'Connor declared that "Congress may not simply 'commandeer the
legislative processes of the States.'" n108 The Tenth Amendment was alive, and
if not well, it was getting better. Therefore, it was with some confidence that
I bet the California dean that at least three justices would vote to uphold the
Fifth Circuit in Lopez. I was convinced that of Justices Rehnquist, O'Connor,
Kennedy, Scalia, and Thomas, at least three would be sufficiently committed to
the principles of federalism to be right. I was pleasantly informed, though not
particularly surprised, when it turned out to be all five. Lopez is not a
mulish genetic oddity without ancestors of its kind. But has it progeny, or is
it the last of its line? It has progeny.
I grant you, I laid out little hope in my earlier recitation of the
somewhat random sampling of circuit opinions. Each of the decisions that I gave
you, and most of the decisions of other circuits, uphold statutes or statutory
applications against Lopez challenges with but little recognition that Lopez is
anything other than "something of a 'sport.'" n109 Indeed, the majority in
Bishop expressly observed about Lopez that "despite protestations to the
contrary, the winds have not shifted that much." n110 In further negation of
the hope of progeny, the Supreme Court granted certiorari in none of those
An aside at this point, the Supreme Court has granted certiorari on a
Ninth Circuit decision upholding the car jacking statute. n111 But the Court
has limited that grant in such a way [*558] as to make it possible, if not
indeed probable, that the fundamental Lopez question may not be reached. n112
Therefore, at least until that case is argued, I will treat the mule question
as if the Supreme Court has granted certiorari on no case on the Lopez
For almost four years, no court found a statute unconstitutional because
of a Lopez challenge, and the Supreme Court did not grant cert. on any case
upholding a federal statute against the Lopez argument. Where, then, do I find
First, to start from the last mentioned negative and work backward, it
is not particularly surprising that the Supreme Court has not granted
certiorari to any of the cases. We should not decide from that the Supreme
Court considers those cases rightly decided. The Court has made it clear over
and over that it does not sit for the correction of error. There are a few
characteristics of a case that make it likely to be certiorari worthy. First,
does it create a split among circuits? So far, the cases avoiding Lopez do not.
Second, does the decision strike down a federal statute as unconstitutional? By
definition the anti-Lopez decisions don't do that, either. So I would read
little, or perhaps nothing, into the denials of certiorari. But what of the
unanimity of the circuits' rejection of any meaningful precedential force for
Lopez? Here's the good news. It ain't quite unanimous.
The Fourth Circuit is listening to Lopez. In Brzonkala v. Virginia
Polytechnic Institute and State University, n113 that circuit considered the
constitutionality of the Violence Against Women Act. n114 That statute,
commendable in its goal but questionable in its constitutionality, creates a
cause of action against "any person . . . who commits a crime of violence
motivated by gender." n115 The plaintiff in Brzonkala had been gang-raped. n116
This was an horrendous tort, but it is not immediately apparent [*559] how it
became a federal matter. The plaintiff argued, and a majority of the Brzonkala
panel accepted, the proposition that the Violence Against Women Act, n117 was
constitutional under the commerce power. n118 The majority quickly admitted
that the VAWA did not fit either of the first two categories of constitutional
regulation: that is, it did not regulate the use of the channels of commerce,
nor did it protect an instrumentality or a thing in interstate commerce.
However, that majority accepted the plaintiff's argument that VAWA was
constitutional under the third category as a regulation of an activity that
substantially affects interstate commerce. n120 The Brzonkala court contrasted
the congressional silence in Lopez with voluminous congressional findings in
the enactment of VAWA. n121 It called those findings sufficient to create the
nexus to interstate commerce, and it upheld the Act. n122 It did so declaring
that "the core teaching of Lopez is simply that Congress must ensure that
legislation enacted pursuant to its Commerce Clause authority reaches only
activities that 'substantially affect interstate commerce.'" n123 Having said
that, in the view of the Brzonkala panel, the judiciary has no apparent role
left in reviewing constitutionality of a commerce power exercise once Congress
has taken evidence and entered some sort of finding.
But Judge Luttig, in dissent, would have affirmed the judgment of the
district court declaring the VAWA unconstitutional. He demonstrated that the
congressional findings which the majority described with such adjectival words
and phrases as "mountain of evidence," "reams," "voluminous," "copious,"
"detailed," "unequivocal," "abundant," and "persuasive," finally amounted to a
"lone conclusory sentence" on the commerce power question: "Crimes of violence
motivated by gender have a sub [*560] stantial adverse effect on interstate
commerce." n124 Judge Luttig declared --I think correctly -- that a
one-sentence conclusion without underpinnings is "functionally no different
from the complete absence of express congressional findings" rejected in Lopez.
n125 "This single conclusory sentence no better 'enables [the court] to
evaluate the legislative judgment that the activity in question substantially
affects interstate commerce'" than did that absence in Lopez. n126 Judge
Luttig's dissent powerfully refutes the majority's commerce clause
Why do I find in the Luttig dissent any more hope than in the previous
dissents of Judges Becker, Boggs, and Sentelle? Because of what has happened in
the Fourth Circuit since then. The first thing that has happened since
Brzonkala happened almost immediately after it. That was the decision in United
States v. Wilson. n127
The Wilson case was an appeal from criminal convictions for felony
violations of the Clean Water Act. n128 The Clean Water Act prohibits the
discharge without a permit of pollutants into "navigable waters." n129
Concededly, the federal government has regulatory power over "waters that are
navigable in fact." n130 In the Clean Water Act, however, Congress extended its
regulatory power over the waters of the United States to waters that are not
navigable "under the classical understanding of that term." n131 The Corps of
Engineers construed that extended regulatory power to cover "all other waters .
. . the use, degradation, or destruction of which could affect interstate or
foreign commerce." n132
On the evidence before the Court, the defendants had degraded, if
anything, some damp land they were attempting to [*561] develop, which did not
abut any navigable waterway. n133 The Fourth Circuit reversed, but without an
agreed rationale. n134 Judge Niemeyer reversed, in part, on the theory that
under Lopez, the regulation could not be valid unless it could be shown that
the activity in question substantially affected interstate commerce, and the
jury was so instructed. n135 He also found error in the Court's instructions on
mens rea. n136 Judge Luttig, of Brzonkala fame, joined in the judgment, but not
in the Lopez rationale. n137 He concurred in the mens rea part of the opinion.
Now you may think that means we had lost him. Not so. He separated
himself from Judge Niemeyer on the basis of Brzonkala; not because he thought
Brzonkala was correct, but because he thought it controlling. n139 Judge
Niemeyer thought it sufficiently distinguishable. Judge Luttig didn't. By way
of a little further explanation, and to lead into the really good news, in
every circuit, a panel decision states the controlling law of that circuit
until it is overruled either by the Supreme Court or by the circuit sitting en
banc. Judge Luttig said, in effect, we can't get around Brzonkala unless the
circuit takes it en banc. Thereby hangs the good news, the Fourth Circuit took
it en banc. n140
Now the really good news: the Fourth Circuit en banc opinion is out.
Judge Luttig, writing for a seven-to-four majority, began his decision: "We the
People, distrustful of power, and believing that government limited and
dispersed protects freedom best, provided that our federal government would be
one of enumerated powers, and that all power unenumerated would be reserved to
the several States and to ourselves." n141 That said, he of course followed
Lopez and reversed the panel, declar [*562] ing the Violence Against Women Act
unconstitutional. It is a masterful opinion and one that I recommend to you.
Even so, we now have what we have not had before: a decision applying Lopez
that creates a circuit split as to its application and more importantly strikes
down a federal statute. At this point it becomes a near certainty that a
petitioner will apply for certiorari and the Supreme Court will grant it.
What happens then? I do not purport to have 20/20 foresight. But Lopez
says what it says, and a majority of the Court joined it. Some have pointed out
that Justices Kennedy and O'Connor joined in separate opinions which ring
somewhat milder than the majority opinion of Chief Justice Rehnquist. But as
Judge Becker points out in his dissent in Bishop, the Kennedy and O'Connor
separate opinions were not narrower separate concurrences. n142 That is, they
both fully joined in the Chief Justice's strong opinion, they merely added
their own commentary thereto. n143 And furthermore, Justice Thomas, in Lopez,
issued a separate concurrence powerfully expressing his conclusion that the
majority opinion did not go nearly far enough. n144
And, there is some hopeful further Supreme Court jurisprudence since the
Lopez decision. In Printz v. United States, n145 the Supreme Court, in a
decision by Justice Scalia, joined by the others from the Lopez five, struck
down a portion of the Brady Act that required state law enforcement officers to
administer a federally enacted regulatory scheme. n146 It did so finding no
implication in the Constitution or its history of a power in the federal
government to commandeer the resources of its parallel sovereigns in the
states. n147 Granted, this protects more of New York v. United States than of
Lopez. But the Scalia opinion expressly cites Lopez with approval, n148 and, as
we have [*563] already seen, New York, like Lopez, provides clear evidence that
the Supreme Court sees federalism as still alive. The Supreme Court speaks, and
at last one circuit is listening.
n1 The Federalist No. 45, at 363 (James Madison) (John C. Hamilton ed.,
n2 U.S. Const. art. I, @ 8, cl. 3.
n3 18 U.S.C. @ 922(q)(2)(A) (1994 & Supp. III 1997).
n4 United States v. Lopez, 514 U.S. 549, 551 (1995).
n5 See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 2 (1824).
n6 See id. at 1-2.
n7 See id. at 295-96.
n8 See id. at 189-206.
n9 See id. at 189.
n10 Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 189 (1824).
n11 See id. at 205-06.
n12 Id. at 194.
n13 Joseph Story, Commentaries on the Constitution @ 526, at 373
n14 Id. @ 525, at 372.
n16 See Wickard v. Filburn, 317 U.S. 111, 118-19 (1942).
n17 2 F.3d 1342 (5th Cir. 1993).
n18 See id. at 1367-68.
n19 See United States v. Lopez, 514 U.S. 549, 550 (1995).
n20 Lopez, 514 U.S. at 558.
n21 Id. at 558-59 (citations omitted).
n22 Id. at 559 (citing Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968),
overruled by National League of Cities v. Usery, 426 U.S. 833, 840 (1976)).
n23 Lopez, 514 U.S. at 559 (citing Maryland v. Wirtz, 392 U.S. 183, 196
n.27 (1968), overruled by National League of Cities v. Usery, 426 U.S. 833, 840
n24 National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1064
(D.C. Cir. 1997) (Sentelle, J., dissenting) (analyzing Lopez, 514 U.S. at
559-65) (citing United States v. Wall, 92 F.3d 1444, 1455-56 (6th Cir. 1996)
(Boggs, J., dissenting in part)).
n25 See Lopez, 514 U.S. at 559, 567.
n26 See id. at 559.
n27 Id. at 560.
n28 See Lopez, 514 U.S. at 560.
n29 See id. at 560-61.
n30 See id. at 561.
n31 Lopez, 514 U.S. at 562 (quoting United States v. Bass, 404 U.S. 336,
n32 See id.
n33 Bass, 404 U.S. at 347, quoted in Lopez, 514 U.S. at 562.
n34 See Lopez, 514 U.S. at 562.
n35 See id. at 563-64.
n36 Id. at 564.
n38 See Lopez, 514 U.S. at 564.
n39 U.S. Const. amend. X.
n40 See H. Jefferson Powell, Enumerated Means and Unlimited Ends, 94
Mich. L. Rev. 651, 653 (1995).
n41 Sara L. Gottovi, Note, United States v. Lopez, Theoretical Bang and
Practical Whimper? An Illustrative Analysis Based on Lower Court Treatment of
the Child Support Recovery Act, 38 Wm. & Mary L. Rev. 677, 721 (1997).
n42 86 F.3d 1238 (1st Cir. 1996).
n43 See id. at 1241.
n44 18 U.S.C. @ 844(i) (1994).
n45 See DiSanto, 86 F.3d at 1241, 1243.
n46 See id. at 1241-42.
n47 See id. at 1245.
n48 DiSanto, 86 F.3d at 1244 (quoting United States v. Medeiros, 897
F.2d 13, 16-17 (1st Cir. 1990)).
n49 See id. at 1246-48.
n50 See id. at 1244.
n51 122 F.3d 146 (2d Cir. 1997).
n52 See id. at 147.
n53 See id. at 147, 149.
n54 See id. at 147.
n55 See id. at 149.
n56 18 U.S.C. @ 1951(a) (1994).
n57 See Farrish, 122 F.3d at 149.
n58 See id.
n60 66 F.3d 569 (3d Cir. 1995).
n61 See id. at 571.
n62 See id.
n63 See id. at 572.
n64 See generally 18 U.S.C. @ 2119 (1994 & Supp. III 1997).
n65 See Bishop, 66 F.3d at 575-90.
n66 See Bishop, 66 F.3d at 591 (Becker, J., dissenting).
n67 Id. at 603.
n68 Id. (quoting United States v. Overstreet, 40 F.3d 1090, 1093 (10th
n70 92 F.3d 1444 (6th Cir. 1996).
n71 See id. at 1445-52.
n72 18 U.S.C. @ 1955 (1994).
n73 See Wall, 92 F.3d at 1450.
n74 See id.
n75 See id. at 1454 (Boggs, J., dissenting).
n77 See id. at 1454-73.
n78 130 F.3d 1041 (D.C. Cir. 1997).
n79 See id. at 1043.
n80 See id. at 1060 (Sentelle, J., dissenting).
n81 See Babbitt, 130 F.3d at 1060.
n82 See id.
n83 See id.
n84 See id.
n85 See id.
n86 See Babbitt, 130 F.3d at 1043-44.
n87 See id. at 1064-65 (Sentelle, J., dissenting).
n88 See id. at 1061.
n89 See id. at 1057.
n90 See Babbitt, 130 F.3d at 1046, 1049.
n91 Id. at 1046 (quoting United States v. Lopez, 514 U.S. 549, 558
n92 See id. at 1049.
n93 101 F.3d 1412 (D.C. Cir. 1997).
n94 See Terry, 101 F.3d at 1413-14.
n95 See id. at 1417.
n96 See National Ass'n of Home Builders v. Babbitt, 130 F.3d
1041,1053-54 (D.C. Cir. 1997).
n97 See Babbitt, 130 F.3d at 1058 (Henderson, J., concurring).
n98 See id. at 1059.
n99 See id.
n100 See Babbitt, 130 F.3d at 1059 (Henderson, J., concurring).
n101 501 U.S. 452 (1991).
n102 See id. at 455.
n103 See id. at 454, 456.
n104 Id. at 461-62 (quoting Sugarman v. Dougall, 413 U.S. 634, 647
(1973) (citations omitted)).
n105 505 U.S. 144 (1992).
n106 See New York, 505 U.S. at 147.
n107 See id. at 149.
n108 Id. at 161 (quoting Hodel v. Virginia Surface Mining and
Reclamation Ass'n, 452 U.S. 264, 288 (1981) (alteration in original)).
n109 See, e.g., United States v. Bishop, 66 F.3d 569, 591 (3d Cir. 1995)
(Becker, J., dissenting).
n110 Id. at 590.
n111 See United States v. Oliver, 60 F.3d 547 (9th Cir. 1994), rev'd sub
nom., Jones v. United States, 526 U.S. 227 (1999).
n112 See Jones v. United States, 118 S. Ct. 1359, 1405 (1998).
n113 132 F.3d 949 (1997), rev'd on reh'g, 169 F.3d 820 (4th Cir.) (en
banc), cert. granted sub nom., Brzonkala v. Morrison, No. 99-29, 1999 U.S.
LEXIS 4745 (U.S. Sept. 28, 1999).
n114 See id. at 953.
n115 42 U.S.C. @ 13981(c) (1994).
n116 See Brzonkala, 132 F.3d at 953.
n117 42 U.S.C. @ 13981 (1994).
n118 See Brzonkala, 132 F.3d at 953.
n119 See id. at 965.
n120 See id. at 968.
n121 See id. at 965.
n122 See id. at 973.
n123 Brzonkala, 132 F.3d at 973.
n124 Brzonkala, 132 F.3d at 976 (Luttig, J., dissenting).
n125 Id. (citing United States v. Lopez, 514 U.S. 549, 562 (1995)).
n126 Id. (quoting Lopez, 514 U.S. at 563).
n127 133 F.3d 251 (4th Cir. 1997).
n128 See id. at 253.
n129 See 33 U.S.C. @@ 1311(a), 1362(12)(A) (1994).
n130 Wilson, 133 F.3d at 256.
n131 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133
n132 33 C.F.R. @ 328.3(a)(3) (1993).
n133 See Wilson, 133 F.3d at 254-55.
n134 See Wilson, 133 F.3d at 266.
n135 See id. at 258.
n136 See id. at 261-62.
n137 See id. at 266 (Luttig, J., concurring).
n138 See id.
n139 See Wilson, 133 F.3d at 266.
n140 See Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169
F.3d 820 (4th Cir. 1999) (en banc).
n141 Id. at 825-26.
n142 See United States v. Bishop, 66 F.3d 569, 591 (3d Cir. 1995).
n143 See id.
n144 See United States v. Lopez, 514 U.S. 549, 584-602 (1995).
n145 521 U.S. 898 (1997).
n146 See id. at 900-01, 933.
n147 See id. at 935.
n148 See id. at 920.