United States v. Lopez, Change in Jurisprudence

Starting in 1995, the Rehnquist Court's revived federalism, as evident in its 5-4 decision in United States v. Lopez, enforced strict limits to Congressional power under the Commerce Clause. In Lopez, the Court struck down the Gun-Free School Zones Act of 1990. It was the first time in almost 60 years that the Court struck down a federal law for exceeding the limits of the Commerce Clause. In the case, the Court was confronted with the conviction of a high school student for carrying a concealed handgun into school in violation of the Act.

In striking down the federal law, the majority opinion explained:

[The Gun-Free School Zone Act] is a 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. [The Act] is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

The opinion set a new rule for what was an acceptable use of Congressional power under the Commerce Clause:

• Congress may regulate the use of the channels of interstate commerce.
• Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons, or things in Interstate Commerce, even though the threat may come only from intrastate activities.
• Congress' commerce authority includes the power to regulate those activities having substantial relation to interstate commerce (activities that substantially affect interstate commerce).

Application of the Lopez Rule

Channels of Commerce and the Instrumentalities of Interstate Commerce

Channels of commerce represent a broad Congressional power which directly regulates the movement of goods and people across state lines. Importantly, the Court never required a nexus (causal link) between a state border crossing and the engagement of an activity prohibited by Congress. On United States v. Sullivan (1948), the Court held that Section 301k of the General Food, Drug, and Cosmetic Act, which prohibited the misbranding of pharmaceutical drugs which had been transported in interstate commerce, did not exceed the Congressional commerce power because Congress has the power to "keep the channels of such commerce free from the transportation of illicit or harmful articles." Topics in this category include mailing or shipping in interstate commerce, prohibiting crimes where the individual crossed a state line to commit the act, and explosives.

The instrumentalities category allows Congress to make regulations in regards to "the safety, efficiency, and accessibility of the nationwide transportation and communication networks." It is a significant basis for Congressional authority however it has not been fully occupied by Congress.

Substantial Impact of Interstate Commerce

The substantial impact (or substantial effect) category ralates to the power discussed in the Court's 1942 decision in Wickard v. Filburn. It is arguably the strongest categorical power in the Lopez Rule. In essence, it relates to economic activities which, in the aggregate, have a substantial impact on interstate commerce. The Court has stopped short of establishing a rule prohibiting the aggregation of all non-economic activity.

In determining whether the activity Congress is attempting to regulate has a substantial effect on interstate commerce, reviewing Courts typically consider the following factors:

(1) whether the regulated activity is commercial or economic in nature; (2) whether an express jurisdictional element is provided in the statute to limit its reach; (3)  whether Congress made express findings about the effects of the proscribed activity in interstate commerce; and (4) whether the link between the prohibited activity and the effect on interstate commerce is attenuated.

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