55 ARLR 1253

(Cite as: 55 Ark. L. Rev. 1253)

Arkansas Law Review


Symposium Issue

The Commerce Clause: Past, Present, and Future

Symposium Articles



Brannon P. Denning [FNa1]

Glenn H. Reynolds [FNd1]

Copyright © 2003 Brannon P. Denning; Glenn H. Reynolds

"The Court is not a mild rash that will go away if you ignore it ."

-- John Elwood

"You have to say something three times in print before anyone pays attention."

-- Mike Graetz

Five years after the United States Supreme Court invalidated the Gun-Free School Zones Act ("GFSZA") as having exceeded Congress's commerce power, we undertook a survey of lower court decisions in which Commerce Clause challenges were raised to ascertain the impact of United States v. Lopez [FN1] in the lower courts. [FN2] With few exceptions, [FN3] we concluded that the lower courts tended to limit the holding in Lopez to its facts and to treat it as an isolated case, [FN4] or at least as commanding no more than minimal scrutiny to ensure that the Government make *1254 some showing of a connection between regulated activity and interstate commerce. [FN5] At the time we wrote our article, in fact, though literally hundreds of cases involving a Lopez challenge had been decided between 1995 and 1999, only one appeals court had found a federal statute invalid on its face. [FN6]

At the time, we chalked up lower court reticence to a number of factors. First, it was unclear how far the Supreme Court itself intended the decision to go. Despite some strong language in Lopez suggesting it was a watershed case, the Court declined certiorari in a number of cases in the intervening years that could have expanded its initial holding. [FN7] Lopez also made a point of not overruling any of the Court's prior Commerce Clause decisions. [FN8] Finally, there was the Lopez opinion itself, which left a number of questions hanging fire: whether the commercial/noncommercial distinction meant that all commercial activity was prima facie within Congress's power; the extent to which the presence of congressional findings would "immunize" statutes from challenge; and the overall lack of guidance for distinguishing among valid and invalid statutes that purport to regulate activity "affecting" interstate commerce, including the very important question of when such local activity could be aggregated to meet the Court's "substantial effect" threshold. [FN9] Lower courts, too, noticed the lacunae in the Court's opinion, and some even explicitly invoked these as reasons not to proceed to expand Lopez willy-nilly--particularly since such expansion might work to the benefit of "unsavory" criminal defendants. [FN10]

While there were other signals from the Supreme Court that its expression in Lopez of a renewed interest in policing the *1255 boundaries of congressional power and, thus, those of federalism was not merely a trifling flirtation, [FN11] we did not ascribe malign motives to the lower court judges' reluctance to expand Lopez much beyond its facts. We concluded that "the lower courts' reactions to Lopez" could be explained as "a sort of institutional conservatism in the face of an ambiguous opinion with an uncertain future." [FN12]

As we were writing those words, the Supreme Court granted certiorari in two cases whose decisions should have offered lower courts a better picture of the direction in which the Supreme Court was headed, even if they still did not spell out, exactly, how far the Court would ultimately go in that direction. In one, United States v. Morrison, [FN13] the Court clarified what would not suffice to sustain a congressional act, and in the process reinforced some of the apparent lessons of Lopez. [FN14] In the other, Jones v. United States, [FN15] a unanimous Court used the principles of Lopez to overturn a conviction under the federal arson statute on the grounds that the Government's interpretation of that statute's scope was too broad to be sustained. [FN16]

After two years, the lower courts have had numerous opportunities to apply Morrison and Jones to assorted factual situations. In light of these opportunities, this is an appropriate time for us to assess the lower courts' latest efforts. We studied every district court and court of appeals decision in which a Commerce Clause challenge was lodged, whether it was framed as a facial or an as applied challenge. [FN17] The results are interesting.

*1256 Contrary to the fears of numerous critics of Lopez and Morrison, [FN18] the decisions have not loosed a flood of opinions holding congressional statutes unconstitutional. In fact, in nearly two years following Morrison, only one statute has been held unconstitutional on its face, and that decision did not survive en banc review. [FN19] Courts have, however, been marginally more comfortable sustaining as applied challenges to legislation containing commands that activity be "in interstate commerce," "affect interstate commerce," and the like. [FN20] Even here the courts have been circumspect in overturning criminal convictions.

But there is something unsettling in our reading of the lower courts' decisions--something suggesting that there is more at work here than mere judicial self-restraint. There is evidence from the lower courts' opinions that they are still reluctant to take Lopez seriously, even after Morrison's clarifying opinion. Moreover, if an earlier reticence to "fill in the blanks" was traceable to Lopez's ambiguity, such reluctance is harder to defend after Morrison and Jones. The more strenuously the courts resist the implementation of Lopez and its progeny, the more it begins to look as if the courts simply disagree with the results. Worse still, evidence of willful judicial foot- dragging (or indifference) is most pronounced when the aforementioned "unsavory" litigants are involved. [FN21]

In the pages that follow, we will support these general statements with some examples. We will conclude with some observations about what lower courts' treatment of Commerce Clause cases suggests about lower court constitutional decision-making in general. One point is worth making early: lower courts have considerable power to shape constitutional doctrine through their implementation (or lack thereof) of Supreme Court decisions. While they are bound to apply Supreme Court precedent, what that means in practice depends, in large part, on how precedent is construed. As Karl Llewellyn noted long ago, precedent can be construed strictly or loosely, [FN22] and while no *1257 lower court has interpreted Lopez or Morrison to apply only to "red-headed Walpoles in pale magenta Buick cars," [FN23] some have come close, with potentially serious consequences, as we discuss later on, for the legitimacy of the Article III judiciary. The justification for an appointed, life-tenured judiciary, after all, is that it will fearlessly apply the law, not that it will fearlessly fail to do so.

First, we will briefly discuss the Court's extension of Lopez in its 1999- 2000 Term by summarizing the holdings of its two Commerce Clause decisions, Morrison and Jones.


Until 1995, the standard law school summary of Congress's commerce power was something along the lines of "Congress can do whatever it wants." As Deborah Merritt noted, the Commerce Clause had become an "intellectual joke," [FN24] a sort of get-out-of-court-free card good for virtually any piece of federal legislation. [FN25]

The joke appeared to be over with the Court's 1995 decision in United States v. Lopez. [FN26] In Lopez the Court struck down a congressional statute prohibiting simple possession of a gun in a school zone. [FN27] The Court concluded that the statute exceeded congressional power under the Commerce Clause. [FN28] The statute addressed "non-commercial" activity; it lacked a "jurisdictional nexus" between the activity regulated and an effect on interstate *1258 commerce; it came to the Court with no findings describing the connection between the regulated activity and an effect on interstate commerce; it was not part of a national regulatory scheme whose efficacy would be fatally undermined if the local activity was not reachable by Congress; and it regulated activity that has traditionally been within the purview of states. [FN29] Finally, the Court found that the argument upon which the Government rested its authority to pass the law in question would require the Court to hold that there is no intrastate activity beyond the reach of Congress. [FN30]

One of the problems with Lopez was that it did not indicate which of these factors was fatal to the GFSZA. Nor did it suggest how each of these factors was to be weighted. In the absence of such answers lower courts erred on the side of caution; in five years, only one statute was invalidated. [FN31] It was this statute, [FN32] part of the Violence Against Women Act ("VAWA"), which created a federal civil remedy for the victims of violent crimes motivated by gender-based animus, [FN33] and the Fourth Circuit Court of Appeals's invalidation of it, which set the stage for the Supreme Court to signal either that Lopez was alive and well or a mere curiosity.

A. United States v. Morrison [FN34]

The majority opinion in United States v. Morrison cleared up some of the questions left outstanding by Lopez. The civil suit provision of the VAWA was similar to the GFSZA in several ways. It regulated noneconomic activity, contained no jurisdictional *1259 element tying the regulated activity to interstate commerce, inserted Congress into an area traditionally regulated by the states, and was not an essential part of an overall federal scheme. [FN35] But what the civil suit provision had, which the GFSZA lacked, was scads of legislative findings concerning the impact that violence against women had on the national economy. [FN36]

Writing for the majority, Chief Justice Rehnquist first described the commercial/noncommercial distinction as "central to our decision" in Lopez. [FN37] But the act in question regulated noncommercial activity since "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." [FN38] Moreover, Rehnquist pointedly noted that despite the fact that Lopez had stressed the necessity of a jurisdictional element so that courts might establish the connection of regulated non-economic activity to interstate commerce, "Congress elected to cast 13981's remedy over a wider, and more purely intrastate, body of violent crime." [FN39]

The question of the day was whether the existence of the findings would be enough, other similarities to the GFSZA notwithstanding, to sustain VAWA's civil remedy. It was not. The Court wrote that "the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation." [FN40] Though the conclusions of Congress regarding a regulated activity's effect on interstate commerce were due some deference, questions about the scope of Congress's power were for the Court to decide. [FN41] Moreover, the Court concluded that the findings of Congress relied on the same attenuated chain of causation that Lopez had rejected. [FN42]

Thus, several things were clear about the scope of congressional power to regulate local activities "affecting commerce" *1260 following Morrison. First, while the Court said it was not necessary to "adopt a categorical rule against aggregating the effects of any non-economic activity," [FN43] it also characterized the commercial/noncommercial distinction as "central to [its] decision" in Lopez. [FN44] Second, if Congress felt the need to regulate noneconomic local activity, the presence of a jurisdictional nexus would be essential. Third, merely appending findings would not insulate a statute from judicial review. Finally, the Court indicated that it was serious about enforcing the "non-infinity principle" in the interpretation of the Commerce Clause by looking with a jaundiced eye on any interpretation that would effectively convert the Commerce Clause into a general police power. [FN45]

B. Jones v. United States [FN46]

Though Morrison was the product of a sharply-divided Court with trenchant dissents, [FN47] the Court's second Commerce Clause opinion of the 1999-2000 Term was unanimous. It, too, reinforced some of the most important principles of Lopez and Morrison regarding the scope of congressional power.

*1261 At issue was a conviction under the federal arson statute which prohibits arson of property used in interstate commerce. [FN48] The defendant had thrown a Molotov cocktail through the window of a private residence not otherwise "used in" interstate commerce. [FN49] In sustaining the conviction, [FN50] the Seventh Circuit Court of Appeals accepted the Government's arguments that the property was used in interstate commerce because the home was insured through a nationwide pooling of risk, was financed through a bank with interstate operations, and had received some out-of-state natural gas. [FN51] A unanimous Court overturned the conviction. Justice Ginsburg, who dissented in Lopez and Morrison, concluded for the Court that "an owner-occupied residence not used for any commercial purpose does not qualify as property 'used in' commerce or commerce-affecting activity" [FN52] and, thus, was outside the scope of the statute.

In language surprisingly reminiscent of the Lopez- Morrison discussions of the noninfinity principle, Justice Ginsburg rejected the Government's arguments for a broad interpretation of the federal statute. "Were we to adopt the Government's expansive interpretation," Ginsburg wrote, "hardly a building in the land would fall outside the federal statute's domain. Practically every building in our cities, towns, and rural areas is constructed with supplies that have moved in interstate commerce, served by utilities that have an interstate connection . . . or bears some other trace of interstate commerce." [FN53]

In light not only of Lopez, but also of the Court's "clear statement" rules [FN54] that presume no radical reallocation of federal and state responsibilities absent a clear expression of intent from Congress, [FN55] and the "rule of lenity" counseling a narrow construction *1262 of criminal statutes, [FN56] the Court found the Government's position to be an untenable one.

Jones can thus be understood to shore up some of the supporting timbers of Lopez. Federal governmental power must be subject to some limits. Jones can also be read as indicating wide support on the Court for the proposition that those limits Congress has placed on the exercise of its commerce power in statutes should be regarded by the courts as meaningful, [FN57] rather than as vestigial forms thrown in to satisfy the Court that Congress was acting within its power. They are not to be read out of the statute by courts, or glossed over by federal prosecutors.


And how have the Court's post- Lopez [FN58] decisions in United States v. Morrison [FN59] and Jones v. United States [FN60] affected the lower courts? The inescapable conclusion is that they have had little impact. Only one federal statute has been struck down after a facial challenge to its constitutionality, and that decision, was reversed after an en banc rehearing. [FN61] As applied challenges have been a bit more successful, but still there have been only nine cases in which a defendant's conviction was overturned. [FN62]

*1263 For the most part, courts faced with post- Morrison Commerce Clause challenges to federal statutes asking that post- Lopez, pre- Morrison precedents be reexamined have declined to read Morrison to require that earlier cases be overruled or even seriously reexamined. [FN63] In many cases, little supporting analysis is offered for those conclusions. [FN64] In other cases, the unanimity of other courts in rejecting similar challenges is cited as sufficient reason for the reviewing court not to seriously consider a Commerce Clause challenge to a federal statute. [FN65] Even in cases *1264 where the challenges are plausible, courts are often quick to invoke circuit rules against overruling circuit precedent [FN66] and the rules against anticipatory overruling of Supreme Court cases. [FN67]

In fact, it is difficult to read cases challenging federal convictions for robbery, [FN68] gun possession by those subject to protective*1265 orders, [FN69] drug trafficking, [FN70] and racketeering and illegal gambling, [FN71] and not get the palpable sense that the courts are anxious to rid their dockets of these cases with as little analysis as possible.

Such a "desk clearing mentality" [FN72] makes it difficult to credit the predictions of Lopez and Morrison's harshest critics: that they will result in courts striking down all manner of federal statutes. Do Lopez and Morrison command such a dire result? Apparently not, if one reads lower court opinions. The lower courts' formalistic analysis [FN73] also makes it difficult to evaluate the source of lower courts' hesitance to apply Lopez robustly even after the Court signaled in Morrison and Jones that it was *1266 indeed serious. Did Morrison still leave too many questions? Has the Supreme Court itself continued to send mixed signals about the extent of its putative revolution, Morrison and Jones notwithstanding? Are the lower courts actively resisting the Court, in hopes that it will reverse course? Those are questions to which we will return in Part III. In this part, however, we will examine a few recent lower court cases in different areas of the law. Even where the courts attempt analysis, they seem intent on minimizing the significance of the Court's recent Commerce Clause decisions.

For the analysis in this part, we did not choose an example from every possible area in which Commerce Clause challenges are brought, [FN74] but have chosen only the cases that offer extended analysis of Lopez, and that attempt reasoned elaborations of their holdings. Nevertheless, the cases below do exhibit the general variety of settings in which Commerce Clause challenges are raised.

A. Federal Firearms Laws

1. Felon Firearms Possession Cases

Under federal law, persons convicted of a felony are prohibited from possessing firearms in or affecting interstate commerce. [FN75] In Scarborough v. United States, [FN76] the Supreme Court held that to satisfy the statute, the Government need only prove that, at some point in the past, the firearm possessed by the felon had moved in interstate commerce. [FN77] Not surprisingly, after Lopez struck down a statute that criminalized simple gun possession in a school zone, persons convicted under the federal felon-in- possession statute challenged their convictions with gusto.

*1267 A year after Lopez, the Third Circuit concluded in United States v. Gateward [FN78] that nothing in Lopez had called into question the result in Scarborough. The court concluded that 922(g)(1) contained a jurisdictional nexus that the statute in Lopez had lacked, [FN79] and understood the Supreme Court's own distinction in Lopez between the GFSZA and the felon-in- possession statute to "buttress[] the validity of the felon firearm statute." [FN80] Joining eight other circuits, [FN81] the Third Circuit concluded that "the jurisdictional element 'in or affecting commerce' keeps [ 922(g)(1)] well inside the constitutional fringes of the Commerce Clause." [FN82] The holding was, at the time, consistent with the tendency of lower courts to remove from the sweep of Lopez all statutes that could be distinguished from the GFSZA by the mere presence of a jurisdictional statement. [FN83]

Five years later, in light of Morrison and Jones, a Pennsylvania district court judge wondered whether the Third Circuit's analysis was sustainable. In United States v. Coward, [FN84] Judge Stewart Dalzell raised serious questions about the constitutionality of the existing felon-in-possession law. Scarborough, for Judge Dalzell, had established a "legal fiction":

Scarborough's legal fiction is that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession sufficient interstate aspect to fall within the ambit of the statute. This fiction is indelible and lasts as long as the gun can shoot. Thus, a felon who has always kept his father's World War II trophy Luger in his bedroom has the weapon "in" commerce. [FN85] "The question now," the court continued, "is whether this legal fiction can survive as a statutory construct in the shadow of the *1268 edifice the Supreme Court has built upon Lopez's foundation." [FN86] The answer, Judge Dalzell concluded, was no.

Despite the Third Circuit's holding in Gateward that Lopez had not altered the rule on felon-in-possession cases, Judge Dalzell opined that

the Supreme Court's Commerce Clause jurisprudence in criminal cases since Lopez calls for a reexamination of Gateward's brief analysis. For example, we now know that the 'economic effect' aspect, and even Congressional findings regarding such economic effects, will not serve under the Commerce Clause to save a criminal statute where no economic activity is in commercial reality involved. [FN87] The Government's argument that Morrison had changed nothing with regard to felon-in-possession cases was dismissed as "unconvincing in view of the breadth of Morrison's dispatch of the economic effect idea that had been previously thought . . . to suffice as a Commerce Clause prop." [FN88]

Like the GFSZA, 922(g)(1) involved noncommercial conduct--simple gun possession. Following the elimination of the "economic effect" argument in Morrison, [FN89] the only support left for Scarborough's result was the argument that the statute's jurisdictional element was sufficient to include within its scope all weapons that had ever moved in interstate or foreign commerce. [FN90] But this argument, regarded as crucial by the Gateward court, was questionable in light of Jones. [FN91] There, "to avoid Lopez concerns, as well as to maintain 'the federal-state balance' as a matter of statutory construction," Dalzell wrote, "the Supreme Court held that the statute 'covers only property currently used in commerce or in any activity affecting commerce.' In so holding . . . the Supreme Court did not extend a Scarborough-like fiction to home ownership, as the Government invited it to." [FN92]

*1269 While acknowledging the differences in the federal arson statute in Jones and 922(g)(1)--the former required that property be used in or affecting interstate commerce; the latter required only that the possession of the firearm occur "in or affecting interstate commerce" [FN93]--Judge Dalzell nevertheless thought that Jones was applicable. Only by requiring that the statute preclude possession of guns and ammunition currently used in interstate commerce or in an activity that affects interstate commerce could one avoid the constitutional problems suggested by Lopez and Morrison. [FN94]

Since Coward's handgun possession "was neither 'used in commerce;"' nor had "any present or imminent interstate aspect;" nor any "commercial or transactional context," his conviction should not stand because he had committed no federal crime. [FN95] However, as the issue had not been addressed by the Third Circuit post- Morrison, Dalzell denied the defendant's motion to dismiss, "in expectation of a reversal." [FN96] Judge Dalzell's expectations were to be disappointed.

A few months later, the Third Circuit affirmed its previous decision. [FN97] Reviewing the history of the statute, and its pre- Lopez treatment by the Supreme Court, the court concluded that Scarborough "established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute." [FN98] The question posed on appeal was whether, after Lopez, Morrison, and Jones, intrastate possession has the requisite effect on interstate commerce sufficient to make it a valid exercise of Congress's power under the Commerce Clause. [FN99] The defendant claimed that "there was no evidence that his possession of the gun substantially affected interstate commerce, or . . . had any effect whatsoever on commerce, interstate or intrastate." [FN100]

*1270 Looking first at Lopez, the Third Circuit, as it had in Gateward, stressed that the Lopez Court itself had contrasted the GFSZA's lack of a jurisdictional nexus with the one present in 922(g)(1). [FN101] Gateward had, the court explained, "straight forwardly applied Scarborough and affirmed the conviction" based on its conclusion that by contrasting the GFSZA with 922(g)(1) in Lopez, the Court was implicitly endorsing its prior holding in Scarborough. [FN102]

Moreover, according to the Third Circuit's reading of Morrison, the Court had merely refuted the notion that "the 'economic effects' rationale and congressional findings regarding such effects alone will . . . save a criminal statute under the Commerce Clause if no commercial activity is . . . involved." [FN103] But Morrison "(while not expressly addressing it) implicitly left intact" Scarborough's holding that a jurisdictional nexus alone is enough to save 922(g)(1) from invalidation. [FN104]

As for Jones, the Third Circuit conceded that "the Court did not expand Scarborough to mean that a piece of property, used in interstate commerce at some time in the past, gave its current intrastate use a sufficient nexus to interstate commerce to fall within the ambit of the arson statute." [FN105] Yet, far from concluding that its reluctance to do so in light of Lopez was relevant to the proper construction of 922(g)(1), the Third Circuit claimed that Jones demonstrates "the continued vitality of Scarborough" and refused to interpret the statute "without [ Scarborough's] benefit." [FN106]

Again, concentrating on the presence of the jurisdictional nexus absent from the statutes in Lopez and Morrison, the court noted that 922(g)(1)

by its very terms, only regulates those weapons affecting interstate commerce by being the subject of interstate trade. It addresses items sent in interstate commerce and the channels of commerce themselves, delineating that the latter *1271 be kept clear of firearms. Thus, an analysis of the kind utilized in Lopez or Morrison is neither appropriate nor needed. [FN107]

Jones, the court confidently concluded, "provides no further insight for us. . . . The rationale used by the Jones Court . . . has little impact on the assessment of whether firearms moved through interstate commerce are subject to congressional regulation." [FN108] Moreover, the court stressed that "the Jones Court neither expressly overruled Scarborough" nor called its holding into question. [FN109]

In conclusion, the Third Circuit stated that "Morrison and Jones give no reason beyond what was already present in Lopez" to conclude the statute was unconstitutional, and noted that the eight other circuits to have addressed the question at the time Gateward was decided had reaffirmed their previous decisions in light of Morrison and Jones. [FN110]

Note the narrow reading given to Lopez and its progeny. A statute that has a jurisdictional nexus, the Third Circuit held, will always survive a facial Commerce Clause challenge, regardless as to whether the regulated activity involves noneconomic activity (like simple gun possession) or not. [FN111] According to its analysis, Morrison did no more than establish the proposition that congressional findings reciting alleged effects on interstate commerce will not suffice to remedy the lack of a jurisdictional nexus. Further, according to the court, Jones merely refused to expand analyses like that deployed in Scarborough to the federal arson statute. That the case did not go on to invalidate other statutes not present in the case before it means that previous cases, like Scarborough, retained "continued vitality." [FN112]

In addition, the Third Circuit refused to engage in the "affecting commerce" analysis employed in Lopez and Morrison, because, on its reading, 922(g)(1) regulated possession of goods that had moved in interstate commerce, and thus "affect[*1272 ed] interstate commerce by being the subject of interstate trade." [FN113] Though not saying so explicitly, the implication is that 922(g)(1) falls within the scope of one of the other two categories of activities that Congress possesses under the Commerce Clause: regulating the channels of interstate commerce and closing them to harmful or injurious uses; or regulating instrumentalities of interstate commerce including goods and things in interstate commerce.

But this cannot be correct. Section 922(g)(1) prohibits a felon from shipping or transporting any firearm or ammunition in interstate or foreign commerce and from receiving any firearm shipped or transported in interstate or foreign commerce--which certainly involves congressional regulation of the channels of interstate commerce--and prohibits a felon from "possess[ing] in or affecting commerce, any firearm or ammunition." [FN114] The defendant in the case was merely charged with possessing a firearm that, at some point in the past, had moved in interstate commerce. [FN115] The Third Circuit's interpretation would mean that the possession prohibited by 922(g)(1) added nothing more than the provision prohibiting a felon from shipping or receiving a firearm in interstate commerce. The "rule against surplusage" in statutes militates against such a reading. [FN116] Congress apparently sought to do something further, namely, regulate possession of firearms that were either "in interstate commerce" or that "affected" interstate commerce.

The Third Circuit admitted that the Government presented no evidence that the defendant's possession of the firearm affected interstate commerce. [FN117] Thus, the conviction had to rest on the evidence that the firearm was "in interstate commerce." Yet, as Judge Dalzell pointed out in Coward, the proposition endorsed by Scarborough that past movement in interstate commerce was enough to establish a present nexus to interstate commerce ought to be reexamined in light of Lopez. [FN118] The Third Circuit's contention that Congress need only establish that *1273 an item have moved in interstate commerce at some point in the past to be subject to congressional regulation proves too much. That would mean Congress could evade the strictures of Lopez and Morrison by, for example, amending the arson statute so that it applied to structures "in or affecting interstate commerce" then arguing that because some portion of the building materials used in construction had moved in interstate commerce in the past, the structure itself was "in" interstate commerce. This is at odds with the Supreme Court's admonition that Congress not convert the Commerce Clause into a general police power, destroy the distinction between what is local and what is national, or proffer an interpretation of any congressional power that renders its outer boundaries resistant to delimitation. [FN119]

Nor did the Third Circuit even address the noneconomic nature of the regulated activity. While it is true that the Supreme Court failed to hold that a lack of noneconomic activity could be regulated under the Commerce Clause, and emphasized the absence of a jurisdictional nexus in both the GFSZA and the civil suit provision of the VAWA, the Court did not hold that the presence of a nexus would necessarily save a regulation of noneconomic activity. The Third Circuit managed to avoid that analysis by simply collapsing the "affecting commerce" and "channels" categories, holding that possession of items that moved in interstate commerce at some point in the past was the same as regulating the channels of interstate commerce themselves, because by being "subject[s] of interstate trade" the items ipso facto "affect [ed] interstate commerce." [FN120]

If the Third Circuit was loath to hold that Lopez and Morrison had overruled Scarborough, [FN121] that only makes the case for a saving construction of the statute more compelling. Jones could have provided the court with a means to vacate the conviction, as Judge Dalzell demonstrated in Coward. [FN122] But the Third Circuit dismissed the idea that Jones had any bearing on the case because the Supreme Court merely, on the Third Circuit's *1274 reading, refused to expand Scarborough (hardly surprising, since 922(g)(1) was not before the Court), and did not overrule it.

This, too, is a strange conclusion. Recall that Jones rejected the Government's arguments that a private residence's receipt of natural gas in interstate commerce, its coverage by an interstate insurer, and its financing by interstate banks were sufficient to demonstrate that the property was "used in" interstate commerce. [FN123] The Court was concerned that such an interpretation meant that the federal arson statute covered just about every building in the country, and would, as a result, totally subsume state arson prosecutions. [FN124] Can it be true that Jones is irrelevant to the interpretation of 922(g)(1), which makes mere possession by a felon of any firearm that has at any time in the past moved in interstate commerce a federal crime--especially when the Court adopted the saving construction in Jones to avoid such problems under Lopez? At best, the nexus between possession and some prior movement of the firearm in interstate commerce is as tenuous as the connections rejected by the Court in Jones.

The Third Circuit seemed to have a choice. It could have adopted the saving construction suggested by Judge Dalzell and require that the petitioner's possession of the firearm somehow be "used in" interstate commerce. Or it could have engaged in the analysis set forth in Lopez and Morrison that would scrutinize whether the statute sufficiently established that the intrastate activity it regulated substantially affected interstate commerce. In the end, it did neither. It avoided the substantial effects analysis through a dubious reading of the statute, and through picayune distinctions between 922(g)(1) and the statutes invalidated in Morrison and Lopez. It then avoided the implications of Jones by, in essence, arguing that the case stood only for its result.

2. Federal Ban on Possession of Machine Guns

But even where lower courts do apply the Lopez "affecting commerce" test, the results suggest that the elements of that test are sufficiently loose to accommodate a variety of interpretations *1275 and emphases. A recent decision, again from a district court in Pennsylvania, illustrates this point.

Federal law, with a few enumerated exceptions, prohibits individuals from "transferr[ing] or possess[ing] a machine gun." [FN125] Not surprisingly, a number of defendants challenged their convictions under 18 U.S.C. 922(o) following Lopez. But despite many similarities between the GFSZA and 922(o) (the latter had no jurisdictional nexus and it regulated non-economic activity, such as simple possession), it has been upheld by eight courts of appeals, including the Third Circuit. [FN126] In light of Morrison, though, the district court for the Middle District of Pennsylvania revisited the issue, but reaffirmed the validity of 922(o). [FN127]

United States v. Rybar, [FN128] the earlier Third Circuit decision upholding 922(o), had rejected reliance on Lopez's analysis, and instead adopted the following test: (i) whether Congress could have rationally believed that possession of machine guns substantially affected interstate commerce; and (ii) whether the means chosen by Congress were reasonably adapted to that end. [FN129] It distinguished Lopez on three grounds. First, the machine gun ban, unlike the GFSZA, was accompanied by legislative findings. [FN130] Second, it held that machine gun possession was economic activity because in many situations possession would result only from an unlawful transfer, and Congress could have reasonably concluded that possession of machine guns could stimulate demand for machine guns, resulting in more illicit transfers of them. [FN131] Finally, the Third Circuit concluded that the ban on machine gun possession was part of a larger legislative regulatory scheme that would be undermined if the intrastate *1276 activity were not reached by Congress. [FN132] The Rybar court was not overly concerned about the absence of a jurisdictional nexus requirement in 922(o) since, as it read Lopez, one was not required for a exercise of congressional power to be valid under the Commerce Clause. [FN133]

Morrison erased support for at least three of the Third Circuit's assumptions in Rybar. First, it was clear that the question whether a regulated activity substantially affected interstate commerce was a judicial question. Rybar, therefore, seems as if it began its analysis with undue deference. Second, the Court made clear that the absence of a jurisdictional nexus requirement would be a strike against a congressional statute--particularly one that regulated noneconomic activity. Third, the Court made plain that legislative findings merely reciting an effect on interstate commerce would not, without more, suffice to insulate a statute from judicial scrutiny. Nevertheless, the district court concluded that an "examination of Rybar in the context of . . . Morrison does not compel the conclusion that Rybar is no longer good law." [FN134]

According to the district court, Morrison and Lopez supported a broad interpretation of "economic activity," and included within that definition "activities that are closely linked to commercial transactions." [FN135] In its opinion, "the concept of 'economic activity' embraces the transfer of a prohibited firearm . . . . Accordingly, the conclusion of the Rybar majority that 'possession and transfer' of a machine gun is 'an economic activity' has not been disturbed by Morrison." [FN136] Second, neither Morrison nor Lopez made "the existence of a 'jurisdictional element' an essential prerequisite to a valid exercise of Commerce Clause authority. . . . Thus, Morrison does not undermine the conclusion in Rybar that [its] absence" from 922(o) renders it constitutionally deficient. [FN137] Third, the court concluded that "nothing in Morrison indicates that it was inappropriate for the Rybar majority to rely upon that body of legislative findings *1277 rationally related to [the enactment of the machine gun possession ban]." [FN138] Finally, the district court found that the requisite nexus between the regulated activity and interstate commerce was sufficiently present to satisfy Morrison because the ban on possession was intended to squelch the demand-side stimulus for machine guns. The district court reasoned by analogy to another Third Circuit case in which the court held that criminalizing possession of child pornography whose constituent elements had moved in interstate commerce was constitutional because criminalizing possession lessened demand for a product whose manufacture is dependent upon interstate networks. [FN139]

In sum, the district court found that "Morrison did not sound a retreat from the position that regulation of wholly intrastate activity would be permissible if it were an integral component of a larger regulation of economic activity substantially affecting interstate commerce," [FN140] and it cited Justice Breyer's dissent for this proposition. But even if Morrison "weakened" Rybar, the district court was compelled to apply the controlling precedent of the circuit, and leave for the court of appeals "the prerogative of determining that the directly applicable precedent can no longer stand." [FN141]

Despite the district court's characterization of 922(o) as prohibiting "transfer and possession," [FN142] the statute uses the disjunctive "or." [FN143] The defendant in the district court case, moreover, was charged merely with possession of an illegal machine gun; there was no issue of his having transferred it. [FN144] Thus, the activity of possessing a machine gun seems to be no more "economic" than Alfonso Lopez's possession of a handgun in violation of the GFSZA. Similar to that act, 922(o) contains no requirement that the activity be connected in any way to interstate commerce. Note that neither the possession, the transfer, nor the machine gun itself is required to be connected with interstate *1278 commerce in any way. Despite the technical correctness of the district court's claim that neither Lopez nor Morrison require a jurisdictional nexus, both cases stressed that the Supreme Court would closely scrutinize statutes regulating noneconomic activity and that also lack a jurisdictional requirement that permits a case-by-case evaluation of the connection between the activity and interstate commerce. [FN145] Further, Morrison should have dispelled the notion that congressional findings alone can remedy the lack of a jurisdictional nexus or otherwise obviate judicial scrutiny of claims that the activity "substantially affects" interstate commerce. [FN146]

Though it was not discussed by the district court, it is difficult to see the ban on machine gun possession as something other than a run-of-the-mill criminal statute of the sort usually left to the states. Whether the statute regulated an area of traditional state concern was one factor considered in any evaluation of a Commerce Clause regulation, according to both Lopez and Morrison. [FN147]

The district court's adoption of the Third Circuit's argument that banning intrastate possession was an attempt to curb the demand for machine guns that might be transferred in interstate commerce, as well as its analogy to the ban on possession of child pornography, is also unavailing. Leaving aside the dubious implications of similarity between would-be possessors of machine guns and those of child pornography, the district court's analogy is inapt because the child pornography statute construed by the Third Circuit contained a jurisdictional nexus requirement. [FN148] The lack of a jurisdictional nexus requirement in 922(o) is important, because without it there is literally no connection between possession (or transfer for that matter) and interstate commerce, as there would be if the machine gun had moved in interstate commerce, or if the transfer itself had occurred "in" interstate commerce.

*1279 Nor can the statute be described, as the Tenth Circuit did in a case cited with approval by the district court, as "an essential part of the federal scheme to regulate interstate commerce in dangerous weapons," [FN149] if that description was meant to bring the statute under the scope of the "national regulatory scheme" factor enunciated in Lopez and Morrison. The statute itself is not an essential part of a national regulatory effort (like one designed to support agriculture prices), any more than the GFSZA was part of a "national regulatory scheme" to reduce the economic ills resulting from violence in schools, or than the civil suit provision of the VAWA in Morrison was part of a national regulatory scheme to address the economic consequences of gender-based violence. The argument, again, proves too much. The Court warned against defining congressional power under the Commerce Clause so that it had no logical stopping point.

We do not mean to say that a federal statute aimed at stanching any interstate traffic in illegal machine guns could not be drafted, the point is that 922(o) does not appear to have been drafted in a manner distinct from similar statutes that the Supreme Court has found to be constitutionally defective. The Third Circuit and the Pennsylvania district court's attempts to distinguish Lopez and Morrison severely under-read those cases and give insufficient valence to the principles suggested in Lopez and reinforced by Morrison.

B. Federal Robbery Statutes

Another fecund source for Commerce Clause challenges has been federal statutes that criminalize robbery affecting interstate commerce, like the Hobbs Act [FN150] and the federal bank robbery statute. [FN151] The difficulty courts have generally had with *1280 cases under these statutes is deciding whether individual acts of regulated activity must themselves "substantially affect" interstate commerce, or whether, consistent with Lopez, it is sufficient that robbery substantially affects interstate commerce in the aggregate, even if individual instances only have a de minimis effect. While Lopez cited Wickard v. Filburn [FN152] for the proposition that such aggregation was indeed possible, it left open a number of questions that Morrison did not answer. Is aggregation available only to economic activity? Are crimes involving theft or robbery "economic" for purposes of Lopez's analysis? And how is a court to determine which regulated activity is aggregable and which is not? As with most other federal criminal statutes, the lower courts have upheld these statutes against facial challenges, but some have--especially in light of Jones--been receptive to as applied challenges.

The two cases discussed in this part are somewhat representative of lower courts' approaches to these matters. In the first, the Ninth Circuit vacated a Hobbs Act conviction of defendants on the ground that the incident giving rise to the federal charge did not fall within the scope of the act. In the second, the Third Circuit upheld a conviction under the federal bank robbery statute, concluding that both on its face and as applied to the defendant, the act was constitutional.

1. The Hobbs Act

The defendants in United States v. Lynch [FN153] were accused of robbing and killing a Nevada man in Montana, dismembering his body, burning it in a barrel, and disposing of the bones by crushing them with rocks. [FN154] The defendants then took the deceased's ATM card, and used it to withdraw $5000 from his *1281 bank account. [FN155] After having their Montana murder convictions reversed, the defendants were charged with Hobbs Act violations. [FN156] One of the defendants testified against the other, who was convicted and received a lengthy sentence. [FN157] He then challenged his Hobbs Act conviction on the ground that the Government had failed to prove that the robbery of the deceased fell within the scope of the statute. [FN158]

Like many other circuits, the Ninth Circuit had previously held that all the Government need prove to secure a Hobbs Act conviction was that the a defendant's act had a "de minimis effect on interstate commerce." [FN159] The earlier case concluded that, unlike the GFSZA, the Hobbs Act was aimed at economic activity and contained a jurisdictional nexus. [FN160] Further, the Lynch court cited Lopez itself for the proposition that where the activity regulated by a statute in general bore a substantial relationship to interstate commerce, individual instances of that activity that were arguably de minimis in nature still fell within a statute's scope. [FN161] Still, it recognized that this standard was not a license to convert the Commerce Clause into a general police power, and if the regulated activity is not "economic" activity that might substantially affect interstate commerce, then that activity will not satisfy the de minimis effect standard favorably alluded to in Lopez. [FN162]

*1282 Further, Lynch noted that though robbery does partake of economic activity--"the forced transfer of currency or of goods that can be exchanged for currency" [FN163]--it was also precisely the type of crime that is usually left to the states to define and punish. [FN164] In addition, "the taking of small sums of money from an individual has its primary and direct impact only on that individual and not on the national economy." [FN165] The trick, then, is to distinguish between those incidents of robbery or extortion that, if repeated, could have a substantial effect on interstate commerce and those that should be left for the states.

The defendant urged the Ninth Circuit to follow the lead of other circuits "and distinguish between the robbery of a business and the robbery of an individual in defining what constitutes a de minimis effect on interstate commerce." [FN166] The Fifth Circuit, for example, had articulated a test whereby a Hobbs Act conviction for robbery of an individual would stand only if (i) the robbery "depleted the assets" [FN167] of an individual directly and customarily engaged in interstate commerce; (ii) if the robbery caused or created the likelihood that the individual will deplete the assets of an entity engaged in interstate commerce; or (iii) if the number of individuals robbed or the amount taken is so great that there is a cumulative effect on interstate commerce. [FN168] The distinction was necessary, according to the Fifth Circuit, in order to respect principles of federalism and the limits of congressional power set forth in the Constitution--to "reserve[] to the States the prosecution of robberies and extortionate acts that have only . . . [an] indirect effect on interstate commerce." [FN169] Since its decision, the Eighth [FN170] and Eleventh [FN171] Circuits have adopted the Fifth Circuit's test, while the Fourth, [FN172] Sixth, [FN173] and *1283 Seventh [FN174] Circuits differentiate between robberies of individuals and businesses when evaluating Hobbs Act prosecutions. [FN175]

The Ninth Circuit might have, as other courts had, [FN176] simply applied its earlier decision in United States v. Atcheson, [FN177] and held that a de minimis effect was enough, regardless as to whether the victim was an individual or a business. However, the court acknowledged that it had adopted a similar distinction in considering the validity of federal arson convictions; [FN178] it recognized that Morrison had been handed down since its earlier opinion. To stay within the bounds of congressional power, the court concluded that a Hobbs Act robbery "must rise above the simple, though forced, economic transaction between two individuals. Otherwise, almost any violent property crime would be transformed into a federal offense, contrary to the teachings of Morrison." [FN179] The Ninth Circuit adopted the United States v. Collins [FN180] test and concluded that "the only connection of [the defendants'] actions to interstate commerce was the robbery of [the deceased's] truck and ATM card, which was used to take roughly $5000 from a private bank account." [FN181] Since the court adopted a new test, it remanded the case to the district court with instructions to apply the Collins test and either reinstate the conviction and sentence, or dismiss the indictment. [FN182]

Lynch provides a compelling example of an as applied challenge used to avoid rehashing previous, post-Lopez cases *1284 (which individual panels may not be able to overrule, absent an en banc hearing), while giving effect to the principles of Morrison and Jones, which undermined the assumptions of lower court cases decided in Lopez's immediate wake. While the conviction was remanded, the court left clear instructions for the trial judge regarding the test to be applied and what proof was needed to reinstate the conviction. This synthesis, interpretation, and application of the Supreme Court's precedents to aid the trial judges seems to be in the best tradition of the hierarchical court model, and certainly more helpful than other courts' reliance on narrow distinctions of dubious validity. [FN183]

2. The Federal Bank Robbery Statute

United States v. Spinello [FN184] offered the opportunity for the Third Circuit to pass on the constitutionality of 18 U.S.C. 2113 (1994), which, inter alia, criminalizes robbery of federally-insured banks, credit unions, and savings and loans. [FN185] The issue was one of first impression in the Third Circuit, so the court did take pains to analyze the issue thoroughly. But what is remarkable *1285 about the opinion is the obvious exasperation of the court at having to do so.

The court's analysis began with a quip that Lopez challenges to federal criminal statutes like this one are "popular with criminal defendants these days." [FN186] The proper test to be applied to the defendant's facial challenge to 2113, the court continued, is whether "Congress ha[d] a rational basis for concluding that bank robbery substantially affects interstate commerce? The answer is a ringing 'Yes."' [FN187]

After reciting the three categories of regulable activity (recited, the court noted, in "lower court decisions too numerous to count much less mention"), [FN188] the court stated that "under Lopez a federal criminal statute that includes a jurisdictional element which would ensure . . . that the prohibited conduct substantially affects interstate commerce would, without more, pass [constitutional] muster as would a statute reaching intrastate economic activity that substantially affects interstate commerce." [FN189] But the mere presence of such a jurisdictional element, the court recognized, did not insulate the statute from scrutiny nor render it "per se constitutional." [FN190] Whatever the effect on judicial scrutiny, the court concluded that "[i]t requires no great mental gymnastics to conclude that a more than adequate jurisdictional element is present in 2113" because the statute only applies to banks, credit unions, and savings and loans that are organized under federal law, insured by the FDIC, or that are members of the Federal Reserve System. [FN191]

Despite the certitude of the Third Circuit, there is little in Lopez or Morrison suggesting that a jurisdictional nexus alone could validate a law not otherwise connected to interstate commerce. [FN192] But, the Spinello court explained, even if the jurisdictional nexus might be found wanting, the statute would survive "because intrastate bank robbery 'substantially affects' interstate *1286 commerce." [FN193] First, the court noted, it is "[clear that] the robbery of a bank, unlike the intrastate possession of a gun within a school zone . . . is an 'economic' activity almost by definition and is certainly an economic activity within the broad definition" that the Third Circuit adopted in an earlier case. [FN194] The court explained:

A bank robber is obviously motivated by his or her own immediate economic gain . . . and, wholly aside from whether FDIC insurance will ultimately kick in, the victim bank and its depositors suffer immediate economic losses as well as the disruption to their . . . abilities to engage in commerce, interstate or otherwise . . . . [FN195] Moreover, 2113, with its link between the regulated activity and interstate commerce, "is not plagued by the exaggerated 'but-for' causation that brought a death knell" for the statutes in Lopez and Morrison because "bank robbery has immediate, non- collateral, non-speculative effects on interstate commerce." [FN196]

Despite a lack of detailed findings from Congress, the court noted that Congress intended to stop bank robbers from moving state to state, thereby eluding local police along the way. Moreover, it noted, Congress had regulated this area for sixty-five years, thus providing, in the court's view, sufficient answer to the Supreme Court's concern that congressional power not be used to obliterate the distinction between local and national activities. Section 2113, the Third Circuit concluded, "neither invades an area of long-standing exclusive state regulation nor upsets the traditional balance between the states and the federal government"--though without explaining its basis for those conclusions. [FN197]

The Third Circuit congratulated itself for not following the example of other "courts of appeals that have thus far addressed . . . Lopez challenges to 2113," and that had "given *1287 those challenges much shorter shrift than we have given them." [FN198] Even so, some of the court's analysis, which we concede to be deeper than most, is still questionable.

First there is the Third Circuit's capacious definition of what constitutes "economic activity." To argue that any forced transfer between a perpetrator and a crime victim was "economic" because the perpetrator is motivated by economic gain and the victim loses the ability to participate in commerce because of the loss seems again to prove too much. All violent property crime would thus become "economic" and regulable by Congress. That runs counter to Morrison's rejection of the argument that a civil remedy for gender-motivated violence could be justified by the aggregate economic effects of such violence. But Morrison received barely a mention in the Third Circuit's opinion.

Further, the Third Circuit simply assumed that Lopez and Morrison held that any statute containing a jurisdictional nexus requirement would pass constitutional muster, even if it did not regulate economic or commercial activity. Similarly, it assumed that statutes regulating economic activity that substantially affects interstate commerce have no need for a jurisdictional nexus to be sustained. But neither Lopez nor Morrison so hold.

This is not to suggest that Lopez and Morrison suggest no theory under which 2113 could be sustained. In fact, the Third Circuit's opinion contained one promising argument, which it declined to consider given its holding that bank robbery substantially affects interstate commerce: that federally- chartered or federally-insured banks are instrumentalities of interstate commerce. [FN199] In United States v. Watts, [FN200] the Seventh Circuit concluded that "at the very least, the FDIC-insured financial institutions are instrumentalities and channels of interstate commerce and their protection from robbery is well within Congress's Commerce Clause power." [FN201] The Third Circuit called such a conclusion "logical given that banks are the sources and the repositories of the very fuel of our complex interstate (indeed, *1288 global) economy. Banks . . . are integral to the web of interstate commercial activity that permeates our economy today." [FN202]

Lopez and Morrison made it clear that congressional regulation of instrumentalities and channels of interstate commerce were well within the power of Congress under the Commerce Clause, and had been since the nineteenth century. Neither case offered opinions as to the scope of either category, since neither the GFSZA nor the civil suit provision of the VAWA implicated them. But they remain a source of authority and, we suggest, are more compelling than the Third Circuit's strained application of the "affecting commerce" rationale. It would, after all, be curious if Congress were empowered to create national banks and insure them under its commerce power, then be denied the power to protect them against robbery. Perhaps even a compelling "affecting commerce" rationale is possible under Lopez and Morrison, the Third Circuit just did not provide it.

As Spinello suggests, and as the next examples show, Morrison may yet have its largest impact by sending lower courts in search of ways to shoehorn statutes into one of the two other Lopez categories to uphold congressional action. [FN203] Such a move has the advantage of allowing courts to avoid the more complicated "affecting commerce" analysis of Lopez in favor of categories that received no attention from the Supreme Court following Lopez. The question that remains to be answered, however, is whether the larger points of Lopez (i.e., that the Commerce Clause should not be read as a general police power) *1289 apply to impose limits on the "instrumentalities" or "channels" categories.

C. Child Support Recovery Act

In United States v. Faasse, [FN204] the Sixth Circuit held unconstitutional the federal Child Support Recovery Act ("CSRA"). Under the Act, willful failure to pay past-due child support constitutes a federal crime. [FN205] The defendant, Timothy Faasse, fathered a child by an ex- girlfriend. When paternity was established in January of 1994, three years after the child's birth, the court made his obligation retroactive to 1992, starting him out $5391 in arrears. Faasse, whose employment appears to have been erratic, was unquestionably erratic in his payments. By September of 1998 he was over $28,000 in arrears. He was arrested for violation of the CSRA and appealed, arguing that the statute exceeded Congress's commerce power.

A three-judge panel agreed. Though the court found that the CSRA's legislative history evinced concern with (i) preventing noncustodial parents from crossing state lines to avoid paying child support and (ii) recovering support payments not made, the text of the statute went further. [FN206] Writing for the panel, Judge Alice Batchelder noted that the portion of the CSRA under which Faasse was charged was not triggered by interstate flight, but rather by "simple diversity of residence." [FN207] The record, the court pointed out, was "devoid of any indication that he moved to California to avoid his child support obligations." [FN208] Moreover, "[i]t is clear that the statute imposes liability even if it is the child who moved out of state rather than the non-custodial parent. . . . The CSRA criminalizes a situation that is not criminal in Michigan, simply because the defendant moved to another state . . . ." [FN209]

Analyzing the CSRA "[i]n light of the traditional notions of federalism and in the wake of the watershed case of United *1290 States v. Lopez," [FN210] the court concluded that the statute failed Commerce Clause analysis. [FN211] To be a valid exercise of the commerce power, the court concluded that the CSRA would have to satisfy the "affecting commerce" test. [FN212] The court rejected arguments that the statute was either a regulation of the channels of interstate commerce and things therein, or a regulation of instrumentalities of interstate commerce. The Government argued the CSRA was a regulation of the channels of commerce because, among other things, defendants' payments would necessarily make use of those channels. But here, the court noted, there were no such uses because the payments were never made. Congress employs its power to regulate the channels of interstate commerce only when it acts to prevent injurious items from being introduced into interstate commerce.

Indeed, to hold otherwise would be to collapse the first and second Lopez categories: any regulation of a thing in interstate commerce would necessarily be a regulation of the use of the channels of interstate commerce. Because we assume that the Supreme Court did not idly draw the distinctions that it did, we cannot agree that the CSRA regulates the channels of interstate commerce merely by criminalizing the failure to make support payments, which, if made, would normally enter the flow of interstate commerce. [FN213] Nor, said the court, could payments be regulated on the basis that the CSRA regulates a thing in interstate commerce, as "defendants in CSRA cases do not put something into the flow of interstate commerce; rather they refuse to do so." [FN214]

*1291 Although cases like Heart of Atlanta Motel, Inc. v. United States [FN215] and Katzenbach v. McClung [FN216] stand for the proposition that Congress may remove obstructions to interstate commerce, they concerned what Judge Batchelder termed "active obstruction" of commerce. The cases, however,

do[] not stand for the more radical proposition that Congress is empowered to regulate the passive failure of individuals to engage in interstate commerce. More importantly, the obstruction argument conflates the Lopez categories. A prohibition on obstruction does not regulate "a thing" in commerce, nor does obstruction constitute a "use" of the channels of interstate commerce under the common meaning of "use." Rather, Congress has authority to prohibit activities that interfere with commerce because those activities, taken in the aggregate, substantially affect commerce. The CSRA must therefore stand or fall, like the Gun Free School Zones Act, as a regulation under Lopez's final category. [FN217]

Under this analysis, the court said, the statute fails. Child support, the Sixth Circuit said, is not commercial activity. The failure to obey a state court order, even where money is at stake, is not commerce. "As a result, court-ordered wealth transfers . . . are not per se a fit object of the federal Commerce power." [FN218] Nor did the statute contain a jurisdictional element that might allow the court to find a substantial effect on commerce among the states. The simple requirement that obligor and obligee reside in different states, the court found, was not sufficient. Finding otherwise, in the court's opinion, would expand the commerce power beyond recognition: "In the absence of a mechanism that would link particular support obligations to some sort of economic enterprise, sustaining the constitutionality of the CSRA on the basis of its current jurisdictional nexus would require paring the 'Interstate Commerce Clause' to the 'Interstate Clause.' This, of course, we cannot do." [FN219]

*1292 The court further rejected the notion that findings about large amounts of unpaid child support were sufficient to support a determination that unpaid obligations substantially affect interstate commerce by causing citizens to seek relief under federal programs. "Taken to its logical conclusion," the court wrote, "this reasoning would allow Congress to regulate activity of any person that depletes another person's assets and, at bottom, is no different from the 'costs of crime,' and 'national productivity' arguments already rejected by the Supreme Court." [FN220] The court concluded by quoting Morrison's warning about "overly elastic conceptions of the Commerce Clause that would give Congress authority over 'family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant."' [FN221]

Thus the Faasse I panel closely examined not only Lopez's economic/noneconomic, jurisdictional nexus, and legislative findings factors, but also applied the more abstract "non-infinity" principle, as well as the principle that Congress should avoid legislating in areas of traditional state concern. Moreover, Faasse I assumed that these larger principles applied equally to all categories of regulated activity, and not just to the "affecting commerce" category.

Faasse I's reasoning was explicitly followed in a subsequent case from the Southern District of New York, United States v. King. [FN222] In an earlier case, United States v. Sage, [FN223] the Second Circuit had held that although the failure to make child support payments meant that no payments were in interstate commerce, the fact that the required payments should have been in interstate commerce was sufficient to support congressional power to regulate "things" in interstate commerce. [FN224] Though Sage was a post- Lopez case, the defendant argued that after *1293 Morrison its approach to congressional power could not be regarded as sound. The district court deciding King I agreed.

When the Second Circuit decided Sage . . . Morrison had not yet been decided, and the Supreme Court's standards for regulating the obstruction of interstate commerce were not as clear as they are now. Thus, contrary to the Government's contention here, Faasse did not apply a different Commerce Clause standard than did Sage or the other Courts of Appeals which have upheld the CSRA. There is only one standard, the one articulated by the Supreme Court in Lopez and Morrison. . . . The Supreme Court's current federalism jurisprudence teaches that the CSRA, by making it a federal crime to fail to make child support payments-a matter of family law-based merely on the fact that the parent and child reside in different states, upsets the delicate balance "between what is truly national and what is truly local." Therefore, the CSRA exceeds the permissible limits of Congress's powers under the Commerce Clause. [FN225]

Both decisions were, however, short-lived. The Sixth Circuit, en banc, reversed the three-judge panel and upheld the Child Support Recovery Act. [FN226] Writing for eight members of the twelve member court, Judge Moore concluded that the CSRA "regulates exclusively interstate cases involving a debtor parent's obligation to send court-ordered payments through interstate channels of commerce for a child residing in another state. We believe that, at the very least, the CSRA falls within Congress's power to regulate a 'thing' in interstate commerce." [FN227] The court noted that it was following nine of the ten other circuits in so holding. [FN228]

The defendant's reliance upon Morrison and Lopez, the court felt, "reveal[ed] a serious misunderstanding of" those cases, since they addressed purely intrastate conduct, as distinguished from the CSRA, which the court concluded was "in fine, no different than myriad other Acts of Congress that the Supreme Court has routinely upheld [involving the regulation of *1294 either the channels of commerce or things in interstate commerce]." [FN229] The court was satisfied that the CSRA could likely be sustained as either a regulation of the channels of interstate commerce, or even under the category of activities "affecting" interstate commerce, to which Lopez and Morrison were addressed. [FN230]

The Second Circuit's recent overruling of the district court's King I decision closely tracked the Sixth Circuit's. [FN231] It rejected the district court's reading of Morrison, which effectively overruled the earlier Sage decision, as "expansive." [FN232] And it chided the district court for relying not on explicit language from Morrison to support its conclusions, but rather on "the already-vacated, later-reversed panel decision of the Sixth Circuit" in Faasse I. [FN233] In the Second Circuit's view, "Morrison did not in any way alter the Lopez tripartite framework or otherwise refine the analysis of when something qualifies as a 'thing in interstate commerce' and thus may be permissibly regulated under Lopez's second category. That reality is fatal to [the] argument before us." [FN234] The problem with the district court's holding in King I, the Second Circuit thought, is that it meant that "Congress cannot regulate activity that obstructs either channels of interstate commerce, or instrumentalities of and persons and things in interstate commerce . . . unless the regulated commerce-obstructing activity independently satisfies" Lopez's "substantially-affecting" test. [FN235] The court declined to read Morrison or Lopez that broadly.

As contrasted with cases involving either the federal firearms statutes or the Hobbs Act, the constitutionality of the CSRA presents a somewhat closer question. Judge Batchelder's opinion in Faasse I, does seem somewhat formalistic. While it is true that the CSRA does not regulate a thing in interstate commerce, *1295 her conclusion merely begs the question whether it is beyond congressional power to punish the failure to place in interstate commerce a thing to satisfy an obligation imposed by law. Judge Batchelder concluded that if within congressional power, it must be because that passive failure to engage in interstate commerce "substantially affects" interstate commerce, and not under Lopez's two other categories. [FN236] But arguably the "thing" in interstate commerce was not the payment that Faasse failed to send, but the obligation that came into being with the court order of child support. When that obligation is owed to someone in another state, the obligation might be said to be "in" interstate commerce, and subject to regulation by Congress so that it might criminalize or punish a failure to pay.

Moreover, one might also quibble with her dismissal of the "substantially affects" arguments. Lopez used the term "economic activity" as well as "commercial transactions" to describe the sort of activities that, in the aggregate, substantially affect interstate commerce. [FN237] While the child support order may not have been a "commercial transaction," the payment and nonpayment of child support payments could be considered "economic activity" without unduly straining the meaning of that term. If so, then that activity may be eligible for Wickard-style aggregation, thus perhaps warranting somewhat greater judicial deference towards a congressional conclusion of substantial effect on interstate commerce.

Judge Batchelder also made too much of the fact that the child support payments involved an area of family law--the one area which both the majority and the dissent in Lopez said was *1296 beyond the reach of Congress to regulate under the Commerce Clause. After all, neither were the support obligations created, the amounts set, nor were the means of collection prescribed by Congress. One might argue that all Congress did was to strengthen the hand of states whose efforts to enforce their obligations are frustrated by peripatetic parents. [FN238]

But the Sixth Circuit's decision in United States v. Faasse [FN239] and the Second Circuit's decision in United States v. King [FN240] do little better to explain their decisions to reverse the courts below. For example, the Second Circuit seemed inclined to dismiss the district court's reasoning solely because Faasse I had been overturned in the en banc hearing. The Sixth Circuit's decision, moreover, does not explain in detail how the CSRA fits within the other two of Lopez's categories, or why some of the lessons of Lopez and Morrison (i.e., any interpretation of the Clause that renders it a de facto police power is incorrect) do not apply to any but the "substantially affects" prong. By contrast, Judge Batchelder's opinion in Faasse I and the district court opinion in King I insisted that the larger implications of Lopez and Morrison lead ineluctably to the conclusion that if the "affecting commerce" power is limited, then any interpretation of *1297 the first two categories that would make congressional power essentially unlimited cannot be a proper interpretation. [FN241]


The foregoing, of necessity, presents only a snapshot of lower court reasoning in cases implicating Morrison and Lopez. Not only is the category of statutes potentially affected an extremely broad one, but as we have already mentioned, the vast majority of cases decided in recent years furnish little or no analysis. The conclusions that follow are, therefore, generalizations. We think, however, that our generalizations are nevertheless informed generalizations.

Opinions upholding federal statutes after Lopez and Morrison often share one or more of the following characteristics:

A tendency to dispose of post- Morrison cases (i) with per curiam or unpublished opinions that simply refer to post- Lopez cases; or (ii) with published decisions that merely announce the conclusion that nothing in the Supreme Court's post- Lopez cases affects the reviewing court's earlier decision, often with little or no analysis.

As was true following Lopez, there is a tendency to uphold statutes or reaffirm earlier decisions on the basis of nice distinctions between statutes struck down in Lopez and Morrison and those before the lower courts, e.g., concluding that the presence of a jurisdictional nexus requirement, congressional findings, and the like obviates the need for closer scrutiny using the factors enumerated in Lopez and Morrison. There is also a tendency to adopt a broad definition of economic or commercial activity.

Even in cases in which lower courts engage in some analysis of the issues, there is an aversion to exploring the larger implications of Lopez and Morrison, and a presumption that neither case significantly changed the constitutional status quo. A premium is placed on preserving *1298 post- Lopez, pre- Morrison cases in which the constitutionality of federal statutes was litigated.

Post- Morrison, more lower courts seem to be looking for ways to characterize challenged statutes under the other two categories ("channels" or "instrumentalities" of commerce) set forth in Lopez, as opposed to engaging in the "substantially affecting commerce" analysis, since the Court has offered little guidance as to the scope of congressional power within the other categories.

In cases involving statutes with a jurisdictional nexus, there is resistance to reading Jones v. United States as sharing the constitutional concerns that lay at the heart of Lopez and Morrison, and thus a reluctance to adopt saving constructions of statutes other than the one litigated in Jones.

On the other hand, cases in which courts have sustained facial or as applied challenges evince a decidedly different attitude toward Lopez, Morrison, and Jones. In general, these cases exhibit:

A willingness to reexamine early post- Lopez decisions in light of Morrison and Jones, and to revise earlier assumptions about the import of Lopez.

An understanding that statutes relying on an "affecting commerce" rationale should be analyzed according to all of the Lopez-Morrison factors.

Despite a lack of guidance regarding the "instrumentalities" or "channels" categories from the Supreme Court, the meta-principles motivating the Court in its approach to the substantially affecting commerce category are relevant to defining the contours of those other two categories.

A willingness to extend the logic of Jones to other statutes that have similar jurisdictional nexus requirements, as opposed to simply relying on the self-contradicting conclusion that a de minimus effect on commerce in individual cases is sufficient to satisfy Lopez's "substantially affects" commerce requirement.

*1299 At the risk of being too reductive, the primary difference that would seem to explain the radically different readings given to the same set of cases is this: one set of judges understands Lopez, Morrison, and Jones to limit congressional power in a way that the other, much larger, set of judges does not.


What explains lower court resistance to the Supreme Court's recent Commerce Clause decisions? At least four possibilities suggest themselves. First, lower courts sincerely doubt that United States v. Lopez [FN242] signaled an intent to limit Congress. Second, lower courts are unable to understand the Court's decisions or discern their implications outside the factual context of those particular cases. Third, lower courts are unwilling to take the time to understand and implement the broader implications of the Court's decisions. Finally, lower courts may understand the implications of Lopez, but are unwilling to implement them fully.

The first two possibilities would seem, in light of United States v. Morrison [FN243] and Jones v. United States, [FN244] to be less probable than they were when we first wrote on Lopez's lower court reception. To the extent that lower court judges doubted the Court's commitment to Lopez, recent cases would seem to provide evidence that the Court's commitment to a fairly robust theory of federalism is real. Moreover, the Court cleared up quite a few questions about the "affecting commerce" test that Lopez left hanging fire, even if it did not answer them all. [FN245]

*1300 On the other hand, courts' own unwillingness to invest the time and attention necessary to understanding and applying the Court's decisions may also be a factor in the level of uncertainty that surrounds the remaining questions. Reading as many Commerce Clause opinions as we have in this area, it is hard not to come away with a very palpable sense that judges are tired of hearing these challenges and want to see them off their dockets. This is especially true in the case of unsympathetic criminal defendants: felons with firearms, child pornographers, church arsonists, corrupt policemen, bank robbers, and the like. The quick resort to previous court of appeals decisions (even those pre- Morrison); the narrow interpretation and conclusory observations that the Supreme Court's decisions do not change those *1301 decisions; the willingness to issue per curiam opinions in some cases and decline to publish others; as well as the generally hasty analysis in those decisions that do give lip-service to Lopez analysis, suggest that judges are not interested in digging too deeply into the Supreme Court's cases, perhaps out of fear that something in them might compel a contrary result. As was the case following our initial survey, we are moved to ask "why?"

One possible answer--one that might explain the resistance--is ideology. [FN246] Perhaps the lower courts are staffed with judges who do not wish to see the "promise" of Lopez fulfilled, and are thus disinclined to follow precedent laid down by the Court. Such opposition is not without precedent: segregationist lower court judges frustrated the implementation of United States v. Brown [FN247] throughout the 1950s and into the 1960s. Even if courts are unwilling to advertise their ideological dissatisfaction with a Supreme Court case, political scientists have long recognized that lower courts had a variety of means at their disposal to frustrate the full implementation of a superior court's mandate. Jack Peltason observed in 1955 that "trial judges . . . have to interpret and apply . . . Supreme Court decisions, and they can do so in order to minimize the significance of their superior's orders." [FN248]

Walter Murphy has also written of the opportunities to "hamper execution of high-level policy decisions" as "an everyday occurrence in the judicial process." [FN249] Such opportunities arise because of compromises in superior court opinions that leave room for the exercise of discretion at the lower court level; the difficulty of applying new principles of law, even where clearly articulated by the Court, to complex fact situations; and *1302 the inclination of judges to prefer their values to those articulated by the Court. [FN250] "Even when there is no desire to sabotage high policy," Murphy explained, "the frequent necessity to exercise discretion may have a thwarting effect similar to that of deliberate misunderstanding." [FN251]

But there are substantial problems with asserting that the absence of wholesale invalidation of congressional statutes following Morrison is due in part to the ideological opposition of federal judges. First, we would have to have a metric for measuring ideology. How does one measure the "conservative- ness" or "liberal-ness" of a judge? Party affiliation seems to be a popular proxy, but that, too, is problematic. John McCain and Mitch McConnell are both Republicans, but of a decidedly different stripe. On the Democrats' side, Georgia Senator Zell Miller and New York Senator Charles Schumer would likely express considerable differences of opinion on many policy matters. Can we state with certainty that Democrats appointed by John Kennedy are "liberal" judges and Republican judges appointed by, say, Dwight Eisenhower are "conservative" ? [FN252] Our doubts kept us from looking up the party affiliation of the judges who decided the cases we examined, or even the president to whom the judge owes her appointment. [FN253]

*1303 But if ideology is not the source of lower court resistance--or, if any sustained inquiry is likely to result in the old Scots verdict, "not proven"--is there an explanation for lower courts' behavior? Research by other scholars suggests that the problem here, to paraphrase former presidential candidate Michael Dukakis, is not ideology, but rather competence. What we are seeing in lower courts' Commerce Clause decisions may be only symptomatic of a larger problem in the federal judiciary: that of courts responding to an increasingly unmanageable caseload by resorting to corner-cutting, resulting in an overall reduction in the quality of courts' work product.

In a provocative recent article, [FN254] William Richman and William Reynolds, two scholars of the federal judiciary, have argued that an increased federal judicial caseload has resulted in federal judges adopting "shortcuts to decision making," [FN255] such as the disposition of cases without oral argument, [FN256] the limitation of published opinions (including the use of per curiam opinions), [FN257] and an increased reliance on non-judicial decision makers--clerks, staff attorneys, and the like. [FN258] "Another way to cope with the burgeoning caseload," the authors noted, "is to propound decisional rules that either discourage litigation, particularly at the appellate level, or that make the cases easier to *1304 resolve." [FN259] The result, the authors argued, is that "the right to appeal" in many cases "is now only nominal." [FN260] A further result is a diminution in quality of the appellate court work product. [FN261] Moreover, they argued, this decline in quality is disproportionately borne by disfavored litigants bringing "trivial cases" that federal judges complain clog their dockets. [FN262]

Richman and Reynolds's arguments were prefigured somewhat by Judge Gilbert Merritt, who spied as a "speck on the horizon" a growing tendency among federal court judges to see themselves as no more than juristic bureaucrats. [FN263] In an article, Judge Merritt feared that the "speck on the horizon" might become the "wave of the future." [FN264] Judge Merritt's fictional judge-bureaucrat regarded himself as

a manager of events, appointed to get a job done, and . . . what is important is not so much the process and the creative act but the result, the practical consequences, the effect on society. Like senators, university administrators, newspaper publishers, and major executives, I must carry out my orders. Nobody reads district court opinions these days except the parties. Gone are the days of the poets and philosophers of the law like Marshall, Shaw, Holmes, Hand, Cardozo, and Traynor. [FN265]

Given that many of the federal criminal cases that federal judges regard as trivial concern laws passed under Congress's commerce authority, it is not inconceivable that in their haste to clear their dockets, the quality of courts' reasoning has suffered *1305 as a result. Applying Lopez, Morrison, and Jones broadly, moreover, will ensure that only more of the same kinds of appeals from the same kinds of unsavory litigants will follow. These realities provide powerful incentives for the "warping of doctrine," which discourages appeals or makes decision making more mechanical, as described by Richman and Reynolds. [FN266] Moreover, many of the shortcuts to decision making that the authors describe are present in Commerce Clause cases, notably the disposition of cases by per curiam and unpublished opinions, often in which oral argument has been dispensed with. [FN267] Further, while we cannot with accuracy ascertain the role that clerks and staff attorneys play in drafting the opinions in this area, if the attitude of Judge Edith Jones regarding "unmeritorious" appeals [FN268] is even moderately prevalent among her colleagues, then we suspect that these cases would be the sort judges would look forward to handing off to the "para-judges" that Richman and Reynolds describe.

It may be that the legal academy itself is responsible for some of this, inasmuch as it insists upon focusing solely on the work product of the United States Supreme Court as the alpha and omega of constitutional law, [FN269] with nary a glance at the role that lower courts--not to mention other branches [FN270]--can or do play in the formation, articulation, and implementation of constitutional law and doctrine. But as the Court's ambiguous opinion in Lopez was responsible for the initial confusion in the lower courts, what seems like resistance following Morrison and Jones may again be largely of the Court's own making.

Ashutosh Bhagwat recently noted that the Supreme Court has become increasingly adamant that lower courts are to leave *1306 to the Court the prerogative of overruling its prior decisions, even when the support for those decisions has all but disappeared in light of more recent decisions. [FN271] He wrote

The net result of the Court's approach is that in deciding if it is bound by a precedent of the Court, lower courts must ignore the reasoning and subsequent doctrinal developments which might bring the validity of that reasoning into question, focusing instead on the narrow holding of the case, and whether it has been expressly overruled. [FN272]

This, Bhagwat notes, has serious practical consequences for the evolution of legal doctrine. First, litigants must "go all the way to the Supreme Court to overturn a precedent which is widely acknowledged to be moribund." [FN273] (And, he might have added, the steadily declining docket [FN274] of the Supreme Court makes it unlikely that the willing litigant will receive a hearing there.) Second, and of particular relevance in Commerce Clause cases, "when the Court adopts a new approach in an area of law, especially constitutional law, it takes much longer for that approach to be fully adopted and implemented by the rest of the judiciary." [FN275] Lower courts must "follow extant, narrow, and older precedents that are directly on point, even if their reasoning and result is clearly inconsistent with the Court's recent decisions." [FN276]

Because "the true force of the Court's precedent" lies "in the voluntary, good faith efforts of the lower courts to follow it," due to the slim chance of Supreme Court review, this gap between newer and older precedents creates the opportunity for the *1307 subtle resistance to emerging doctrine suggested above [FN277]--"reading Supreme Court holdings narrowly, denying the logical implications of a holding, or treating significant parts of opinions as dicta" [FN278]--all of which are common features of the lower courts' Commerce Clause opinions. [FN279] The opportunities for lower court under reading of Supreme Court precedent are exacerbated, Bhagwat argues, by what he sees as the Court's movement back to "open-textured and flexible 'standards"' as opposed to "rules." [FN280] Again, one might see some of that in the Court's Lopez opinion, and in its refusal to lay down strict rules even in Morrison. [FN281]

While proposing a remedy for what Bhagwat sees as the Court's excessive and counter-productive subordination of the lower courts is beyond the scope of this article, a few of his suggestions are worth noting here. Bhagwat suggests that fears of chaos brought about by lower courts "underruling" Supreme Court cases--or more accurately, allowing new doctrine to supplant older cases, even if those cases have not been expressly overruled by the Supreme Court--are somewhat overstated and that the costs in not allowing the courts to do so have been ignored. [FN282] Instead of seeking to concentrate power at the top, he suggests that the Court "pay[] more, and more systematic, attention to [lower] courts' attempts to implement the doctrines promulgated by the Supreme Court." [FN283] In other words, the Court should "treat[] the lower federal courts as collaborators, rather than as employees." [FN284] It should take the idea of "percolation" in the circuits seriously; "not . . . as an excuse for avoiding decision, but as a source of ideas and practical experience. Relatedly, the Court might take a more generous view of lower *1308 courts who . . . experiment with, or even deviate from, the Court's . . . doctrinal formulations." [FN285] This might result in the Court being sensitized to difficulties with its decisions or the reasoning used to articulate them. [FN286] For their part, he writes, "the lower courts must themselves be willing to engage in independent and sometimes aggressive reasoning." [FN287]

These suggestions strike us as reasonable ones. The Supreme Court cannot have it both ways: requiring lower courts to toe the line on precedent, but simultaneously expecting those courts to follow its lead in implementing significant doctrinal change. And if the Court's game is not to encourage lower court implementation by continuing to reduce its docket or keep it at its current level, so that its opportunities to supervise the work of the lower courts is minimal, then it is reinforcing the perception among courts that its decisions, like Lopez and Morrison--though they appear to portend dramatic shifts and a return to "first principles"--are largely shadow-play, not intended to have any real impact on the day-to-day work of lower courts. But we seriously doubt that the Court would consciously embark on a course of action intended to reduce the force of its opinions. Thus, the Court seems to have a choice: Write opinions that are less open-textured, more "rule-like," which leave less discretion for lower courts to under read them; or begin taking up more cases in which the lower courts have tried to grapple with the questions that remain after Morrison and Jones. There is hardly a shortage of promising candidates.

But even if the problem brought to the fore by our examination of Commerce Clause cases can be traced, in part, to the Supreme Court's centralization of authority, can we nevertheless fault lower courts for reading Lopez, Morrison, and Jones as applying *1309 only to Llewellyn's red-headed, pale magenta Buick-driving Walpoles? [FN288] We think so, and confess disappointment at the absence of thoughtful analysis--indeed, of any analysis, in many cases-- from many of the lower court opinions that we read. [FN289] It is possible, indeed likely, that many of the cases that we criticized might be found to be within federal jurisdiction even after a thorough analysis according to the principles of Lopez and Morrison. That, however, is no excuse for the failure of many courts even to attempt such an analysis. The outcome is less important, in the end, than the analysis, or lack thereof. In many of these cases, what Bill Van Alstyne described as a "desk clearing mentality" is very much in evidence.

Until the Supreme Court and the lower courts begin engaging in productive dialogue that can bring about some coherence in this and other areas, is there any available source for quality control of lower court decision making? One avenue is for more academic commentators to do what we have tried to do here, namely, examine what happens after the Supreme Court has spoken, as many political scientists have urged. [FN290] Another possible check is the judicial selection process. [FN291] The fact that confirmation to lower court positions, especially appeals court spots, have become contentious in recent years suggests that Senators (and interest groups) are beginning to understand how *1310 important those courts are. Here, perhaps, the Senate would do well to focus less on "gotcha" issues or questions of ideology, and more on a nominee's work product (if he or she is presently a judge) and question the nominee closely on her temperament and willingness to give even unpopular or "unimportant" litigants a full, fair hearing. [FN292]


The Supreme Court is the highest court in the land. Lower courts follow its precedents. The makeup of the Supreme Court is thus the most important influence on American constitutional law. These are statements so taken for granted that they are seldom even examined. But in fact, reality seems to be more complex than that.

That complexity holds a number of lessons. One is that the way we teach constitutional law is simplistic: the way that Supreme Court opinions affect the system is far more complex and indeterminate than the casebooks suggest. That complexity exists in a variety of forms, but the way in which Supreme Court precedents do (or do not) percolate down through the lower courts is surely more important than the standard tale would make it seem. [FN293] Another is that the lower courts simply are not living up to the general expectations we have had for them, in terms of thoughtfulness, fairness, and a willingness to give a hearing to litigants regardless of their stature or of the crimes of which they are accused. This failure is a serious one, not only for justice but for the very legitimacy of the system. [FN294] We hope *1311 that our examination of this issue will spark greater concern and scrutiny in the future.

[FNa1]. Assistant Professor of Law, Southern Illinois University, Carbondale.

[FNd1]. Professor of Law, University of Tennessee, Knoxville. This paper was presented at a symposium entitled "The Commerce Clause: Past, Present, and Future" held at the University of Arkansas, Fayetteville. The authors thank the organizer, Mark Killenbeck, for the opportunity to participate. They also thank Adrian Vermeule, Grant Nelson, Jim Ely, Bob Pushaw, Randy Barnett, and Steve Sheppard for their comments and criticisms.

[FN1]. 514 U.S. 549 (1995).

[FN2]. See Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came?, 2000 Wis. L. Rev. 369.

[FN3]. See id. at 385-97 (discussing "strong" readings of Lopez).

[FN4]. See id. at 389-91 (offering illustrations of "Simon Says" Lopez, i.e., court interpretations of the case treating it as no more than an admonition that Congress has to mention "interstate commerce" somewhere in statutes passed under its commerce power).

[FN5]. See id. at 385-89 (discussing "weak" readings of Lopez in which courts sometimes overturned convictions under as applied, as opposed to facial, challenges).

[FN6]. See Brzonkala v. Va. Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999), aff'd sub. nom. United States v. Morrison, 529 U.S. 598 (2000).

[FN7]. Reynolds & Denning, supra note 2, at 399 n.138 (describing commentators' attribution of significance to denials of certiorari following Lopez in cases that could have expanded the holding).

[FN8]. Id. at 375 (noting that if the reluctance to overrule prior cases implied approval of those decisions "then for all the discussion earlier in the opinion about 'first principles,' the case probably stands as little more than a warning to Congress that it may do what it will, as long as it includes the correct incantations") (footnotes omitted).

[FN9]. See id. at 375-78 (discussing the questions left open by Lopez).

[FN10]. See id. at 395 & n.118, 396 & nn.119-24 (listing examples).

[FN11]. See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999); Printz v. United States, 521 U.S. 898 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996).

[FN12]. Reynolds & Denning, supra note 2, at 401.

[FN13]. 529 U.S. 598.

[FN14]. Id. at 607-18.

[FN15]. 529 U.S. 848 (2000).

[FN16]. Id. at 852-59.

[FN17]. One of us (Denning) regularly monitors such cases as part of his duties in preparing the annual supplements for Boris I. Bittker, Bittker on the Regulation of Interstate and Foreign Commerce (1999 & Supp.), which is a comprehensive treatment of, among other things, the scope of congressional power under the Commerce Clause. The set of opinions we examined were handed down between June 1, 2000 and February 1, 2002.

[FN18]. For examples, see Bittker, supra note 17, 5.04[G] n.116.74 (2001 Supp.); Reynolds & Denning, supra note 2, at 394 n.114.

[FN19]. See infra note 61.

[FN20]. See infra note 62.

[FN21]. See generally infra notes 99-117.

[FN22]. Karl N. Llewellyn, The Bramble Bush 73-74 (6th ed. 1981).

[FN23]. Id. at 72.

[FN24]. Deborah Jones Merritt, Commerce!, 94 Mich. L. Rev. 674, 691 (1995). Lynn Baker and Ernest Young put it this way: "From 1937 to 1995, federalism was part of a 'Constitution in exile."' Lynn A. Baker & Ernest A. Young, Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75, 75 (2001).

[FN25]. By the early 1970s, Congress had begun relying on the commerce power for all manners of federal criminal legislation. Even one of the Government's architects of arguments for expanding the commerce power during the New Deal expressed surprise that such expansion was encountering so little resistance. See Robert L. Stern, The Commerce Clause Revisited--The Federalization of Intrastate Crime, 15 Ariz. L. Rev. 271 (1973). For a specific example, see Perez v. United States, 402 U.S. 146 (1971), in which the Court upheld the prosecution of a local loan shark under a statute prohibiting "extortionate credit transactions." Id. at 146-47.

[FN26]. 514 U.S. 549 (1995).

[FN27]. For a more extensive analysis of Lopez, see Reynolds & Denning, supra note 2, at 371-74.

[FN28]. Lopez, 514 U.S. at 549.

[FN29]. Id.

[FN30]. Id.

[FN31]. See Brzonkala v. Va. Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999), aff'd sub nom. United States v. Morrison, 529 U.S. 598 (2000).

[FN32]. 42 U.S.C. 13981 (1994).

[FN33]. Under the statute, anyone who committed "a crime of violence motivated by gender" was liable to the victim for compensatory and punitive damages, as well as injunctive relief. 42 U.S.C. 13981(c). A "crime of violence motivated by gender" was defined as a violent crime "committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." 42 U.S.C. 13981(d)(1). Moreover, no charges need to have been filed to take advantage of the civil remedy. 42 U.S.C. 13981(e)(2). Random acts of violence not related to gender were exempted, and the gender animus must have been proven under a preponderance of the evidence standard. 42 U.S.C. 13981(e)(1).

[FN34]. 529 U.S. 598.

[FN35]. Id. at 613.

[FN36]. Id. at 614.

[FN37]. Id. at 610.

[FN38]. Id. at 613.

[FN39]. Morrison, 529 U.S. at 614.

[FN40]. Id.

[FN41]. Id.

[FN42]. Id. at 615 ("Congress' findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers.").

[FN43]. Id.at 613.

[FN44]. Morrison, 529 U.S. at 610.

[FN45]. See id. at 615.

[T]he concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority seems well founded. The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States' police power) to every attenuated effect upon interstate commerce. If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption.

Id. (citation omitted). "Indeed," the Chief Justice wrote, "if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence," since the larger class of violent crime is certain to have a greater impact than the lesser subset that Congress chose to regulate. Id. The reasoning employed by the Government could "be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant." Id. at 615-16. For more on the presence of the "noninfinity principle" in Lopez, see Reynolds & Denning, supra note 2, at 376.

[FN46]. 529 U.S. 848 (2000).

[FN47]. The dissenting opinions of Justices Souter and Breyer are discussed in the supplement to Bittker, supra note 17, 5.04[F].

[FN48]. 18 U.S.C. 844(i) (1994).

[FN49]. Jones, 529 U.S. at 848, 851.

[FN50]. See United States v. Jones, 178 F.3d 479 (7th Cir. 1999), rev'd, 529 U.S. 848 (2000).

[FN51]. See id. at 480-81.

[FN52]. Jones, 529 U.S. at 850-51.

[FN53]. Id. at 857.

[FN54]. See generally William N. Eskridge, Jr. et al., Legislation and Statutory Interpretation 354-62 (2000).

[FN55]. See, e.g., United States v. Bass, 404 U.S. 336, 350 (1971).

[FN56]. See generally Eskridge et al., supra note 54, at 362-69.

[FN57]. For more examples of Congress's self-imposed limitations, see Bittker, supra note 17, 5.05.

[FN58]. United States v. Lopez, 514 U.S. 549 (1995).

[FN59]. 529 U.S. 598 (2000).

[FN60]. 529 U.S. 848 (2000).

[FN61]. See, e.g., United States v. Faasse, 227 F.3d 660 (6th Cir. 2000), op. vacated and reh'g en banc granted, 234 F.3d 312 (6th Cir. 2000), rev'd, 265 F.3d 475 (6th Cir. 2001) (en banc) [hereinafter Faasse I].

[FN62]. See United States v. Lynch, 265 F.3d 758 (9th Cir. 2001) (vacating Hobbs Act conviction; remanding to district court for determination whether robbery of individual fell within scope of statute); United States v. Odom, 252 F.3d 1289 (11th Cir. 2001) (reversing convictions under federal arson statute where subject of arson was a church, under 844(i)); United States v. Johnson, 246 F.3d 749 (5th Cir. 2001) (per curiam) (refusing to reconsider prior decision vacating guilty plea of defendant for burning down one-story church building under federal arson statute); United States v. Peterson, 236 F.3d 848 (7th Cir. 2001) (granting reversal of Hobbs Act conviction because the Government provided no evidence of connection with interstate commerce as required by statute); United States v. Corp, 236 F.3d 325 (6th Cir. 2001) (reversing conviction under federal child pornography statute, where defendant was convicted of possessing pictures depicting a seventeen-year-old girl and defendant's wife and where Government conceded that defendant kept pictures for personal use and did not intend to sell or trade pictures); United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000) (reversing and remanding a conviction under federal arson statute, 18 U.S.C. 844(i) (1994) for arson of vacant fitness center); United States v. Wang, 222 F.3d 234 (6th Cir. 2000) (reversing Hobbs Act, 18 U.S.C. 1951 (1994), conviction of individual who robbed individual, noting attenuated connection to interstate commerce where criminal act directed toward individual, as opposed to business; noting that robber took $4200, only $1200 belonged to victims' business); United States v. Ramey, 217 F.3d 842 (4th Cir. 2000) (vacating sentence under federal arson statute in light of Jones); United States v. Rayborn, 138 F. Supp. 2d 1029 (W.D. Tenn. 2001) (discussing motion to reconsider dismissal of indictment for arson under 18 U.S.C. 844(i) based on evidence of church's alleged impact on economic activity; finding that the church was not actively used in interstate commerce and that none of its activities affect interstate commerce).

[FN63]. See, e.g., United States v. Ferreira, 275 F.3d 1020 (11th Cir. 2001) (declining to revisit earlier ruling that statute prohibiting carrying and use of a firearm during a crime of violence, 18 U.S.C. 924(c) (1994), in light of Morrison and Jones); United States v. Estrada, No. 00-6231, 2002 WL 93136 (10th Cir. Jan. 25, 2002) (unpublished) (declining to revisit earlier decision upholding 18 U.S.C. 922(g) (1994); prohibiting felon from possessing firearm in or affecting interstate commerce, in light of Morrison and Jones); United States v. Holbrook, No. 2:01CR10023, 2001 WL 672058 (W.D. Va. June 15, 2001) (applying pre- Morrison court of appeals decision upholding validity of 922(g)).

[FN64]. For example, an Eleventh Circuit opinion analyzed a Commerce Clause challenge to a federal statute making it a crime to carry or use a gun during a crime of violence as follows: "After the Court's decision in Lopez... we squarely rejected precisely the same argument [the defendant] now makes.... We add that nothing in the Supreme Court's recent rulings in [ Jones or Morrison] alters that conclusion." Ferreira, 275 F.3d at 1028 (citations omitted). A district court declined to entertain a Commerce Clause challenge to 18 U.S.C. 922(g)(9), which prohibits one convicted of a misdemeanor crime of domestic violence from possessing a firearm, noting that:

While the Fourth Circuit has not specifically addressed a Commerce Clause challenge to 922(g)(9), it has categorically held that all nine subsections in 922(g) satisfy the interstate nexus requirement of Lopez.... Morrison affected no change to the analysis under Lopez, nor the holding under [the previous Fourth Circuit case].

Holbrook, 2001 WL 672058, at *1 n.2 (citation omitted).

[FN65]. See, e.g., United States v. Brown, 276 F.3d 211, 214 (6th Cir. 2002) ("The defendants claim that the Supreme Court's decision in [ Lopez] prohibits Congress from extending the reach of its authority to drug crimes that occur solely intrastate. This view has been soundly rejected by this circuit as well as every other circuit to address the issue."; citing pre- Morrison Sixth Circuit case); United States v. Merritt, No. IP01-0081-CF-01- T/F, 2001 WL 1708830 (S.D. Ind. Nov. 8, 2001) (rejecting challenge to federal statute prohibiting convicted felons from possessing firearms: "After Lopez, courts have 'repeatedly found the inclusion of [a] jurisdictional element... [as] sufficient to overcome Commerce Clause challenges."') (alterations added). Id. at *3. In one federal case, the court held that the failure to raise a Commerce Clause challenge to federal drug laws did not constitute ineffective assistance of counsel because such arguments would be "fruitless" in light of the virtual unanimity of the circuits in upholding those statutes. See United States v. Butler, No. CIV. A. 00-4377, 2001 WL 311209, at *4 (E.D. Pa. Mar. 28, 2001).

[FN66]. See, e.g., United States v. Singletary, 268 F.3d 196, 204 (3d Cir. 2001) (refusing to revisit earlier case upholding federal ban on possession of firearms by felons: "our prior decision... remains the law of this circuit, and we are bound to respect it, absent an en banc consideration").

[FN67]. See, e.g., id. at 205.

Moreover, even if there were merit to Singletary's argument that the Supreme Court's... decisions have somehow weakened the precedential value of [a prior Court case], we may not precipitate its decline. The Supreme Court itself has admonished lower courts to follow its directly applicable precedent... and to leave to the Court itself 'the prerogative of overruling its own decisions.'

Id. (citations and internal quotation marks omitted).

[FN68]. See United States v. Morris, 247 F.3d 1080, 1085-86 (10th Cir. 2001) (holding de minimis effect sufficient to sustain Hobbs Act conviction); United States v. Bailey, 227 F.3d 792, 797-98 (7th Cir. 2000) (upholding conviction for robbery of cocaine dealer under "depletion of assets theory;" "[T]he government asserts that cocaine must enter Illinois through interstate commerce. The result is... that the robbery of cocaine dealers depleted the assets available to purchase cocaine through interstate commerce, thereby creating the requisite effect on interstate commerce."); United States v. Malone, 222 F.3d 1286, 1294 (10th Cir. 2000) (upholding Hobbs Act conviction of defendants charged with robbing gas station; noting de minimis impact on interstate commerce sufficient to sustain conviction); United States v. Jackson, No. 96 CR 815, 2000 WL 1745284 (N.D. Ill. Nov. 28, 2000) (holding the prosecution of police officers for extortion of drug dealers under Hobbs Act permissible under "depletion of assets" theory; stating that the "[d]efendants' extortion of cocaine dealers depleted the assets available to purchase cocaine through interstate commerce"). But see United States v. Peterson, 236 F.3d 848, 854-55 (7th Cir. 2001) (reversing Hobbs Act conviction; stating that the Government failed to produce evidence that illegal drug business was "interstate business" to bring within scope of federal statute); United States v. Wang, 222 F.3d 234, 238-39 (6th Cir. 2000) (reversing Hobbs Act conviction of defendant convicted of robbing individual; noting attenuated connection to interstate commerce where criminal act directed not towards businesses but merely individuals; stating that "upholding federal jurisdiction over [defendant's] offense would... acknowledge a general federal police power with respect to the crimes of robbery and extortion," contrary to the admonitions in Morrison).

[FN69]. For cases upholding prohibition on gun possession by those subject to protective orders or who have been convicted of domestic violence offenses, see United States v. Napier, 233 F.3d 394, 399-402 (6th Cir. 2000) (upholding 18 U.S.C. 922(g)(8), which prohibits gun possession by those subject to certain protection orders; ruling that statute requires only that gun have traveled in interstate commerce at some point in the past); see also United States v. Ball, No. 00-4582, 2001 WL 324624 (4th Cir. Apr. 4, 2001) (upholding 18 U.S.C. 922(g)(9), prohibiting possession of firearms by those convicted of domestic violence crimes); United States v. Lewis, 236 F.3d 948, 950 (8th Cir. 2001) (holding that the "specific interstate-commerce connection [in the statute] suffices to validate the statute"); United States v. Brown, No. 00-4369, 2001 WL 285210, at *1 (4th Cir. Mar. 23, 2001) (concluding that the statute "contains a specific jurisdictional requirement that the possession be 'in or affecting interstate commerce"').

[FN70]. See United States v. Brown, 221 F.3d 1336 (6th Cir. 2000) (unpublished opinion) (upholding conviction under federal drug trafficking statute against Commerce Clause challenge); Pearson v. McCaffrey, 139 F. Supp. 2d 113, 122 (D.D.C. 2001) (upholding Controlled Substances Act in face of Commerce Clause challenge); Butler, 2001 WL 311209, at *4 (stating that the failure to raise constitutional challenges to federal drug laws is not ineffective assistance of counsel; finding such arguments "fruitless" in light of number of cases from various circuits upholding statutes' constitutionality); see also United States v. Meshack, 225 F.3d 556, 572 (5th Cir. 2000) (upholding conviction under federal money laundering statute as applied to purchase of pickup truck with drug proceeds, which truck was used in subsequent drug sales, and as applied to payment of apartment rent with drug money; stating that de minimis effect on interstate commerce all that is necessary).

[FN71]. See United States v. Riddle, 249 F.3d 529 (6th Cir. 2001) (affirming convictions under 18 U.S.C. 1962 (RICO conspiracy), 1955 (conducting illegal gambling business), and 1959 (violence in furtherance of racketeering); stating that de minimis effect on interstate commerce sufficient); United States v. Adorno, No. 99-1784, 2001 WL 253119, at *1 (2d Cir. Mar. 12, 2001) (upholding conviction under 18 U.S.C. 1951(a)(1) (murder in aid of racketeering); holding that "[d]rug trafficking, even if primarily local in character, is an economic activity with a substantial effect on interstate commerce"); United States v. Brieno, No. 00 CR 289, 2001 WL 290618, at *2 (N.D. Ill. Mar. 20, 2001) (upholding conviction for running an illegal gambling business).

[FN72]. The phrase is Professor William Van Alstyne's.

[FN73]. See supra notes 61-71; Reynolds & Denning, supra note 2, at 392-99 (describing lower court decisions in the five years following Lopez).

[FN74]. For more cases, which often lack the extended analysis of the cases discussed below, see supra notes 61-71. Other citations can be found in Bittker, supra note 17, 5.04[E] (2002 Supp.).

[FN75]. See 18 U.S.C. 922(g)(1) (1994).

[FN76]. 431 U.S. 563 (1977).

[FN77]. See id. at 568. An earlier case, United States v. Bass, 404 U.S. 336, 349 (1971), had held that the Government must prove that a firearm had, in fact, moved in or otherwise affected commerce to secure a conviction under 922(g)(1)'s predecessor. This construction was applied in part to avoid constitutional questions raised by congressional criminalization of mere possession. See id. at 351.

[FN78]. 84 F.3d 670 (3d Cir. 1996).

[FN79]. See id. at 672.

[FN80]. Id.

[FN81]. See id. (citing a series of cases).

[FN82]. Id. at 671.

[FN83]. See Reynolds & Denning, supra note 2, at 380-89 (describing this tendency and citing cases).

[FN84]. 151 F. Supp. 2d 544 (E.D. Pa. 2001).

[FN85]. Id. at 549.

[FN86]. Id.

[FN87]. Id. at 551-52.

[FN88]. Id. at 551 n.6.

[FN89]. Coward, 151 F. Supp. 2d at 551.

[FN90]. See id. at 553.

[FN91]. See id.

[FN92]. Id. at 554 (footnotes omitted).

[FN93]. Id. at 553 n.8.

[FN94]. Coward, 151 F. Supp. 2d at 554.

[FN95]. Id.

[FN96]. Id.

[FN97]. See Singletary, 268 F.3d 196.

[FN98]. Id. at 200.

[FN99]. See id.

[FN100]. Id.

[FN101]. 84 F.3d at 671.

[FN102]. Singletary, 268 F.3d at 202.

[FN103]. Id. at 203.

[FN104]. Id. (citing Justice Breyer's dissenting opinion that Congress need only enact laws providing that an item related to a regulated activity have crossed state lines at some point in the past).

[FN105]. Id. at 204.

[FN106]. Id.

[FN107]. Singletary, 268 F.3d at 204.

[FN108]. Id.

[FN109]. Id. Even if it had agreed with the defendant's contention that Scarborough had been weakened by the more recent cases, it would be bound to follow it, the court noted, citing the Supreme Court's admonitions against anticipatory overruling. Id.

[FN110]. Id. (citing a series of cases).

[FN111]. See generally Singletary, 268 F.3d at 204.

[FN112]. Id.

[FN113]. Id.

[FN114]. 18 U.S.C. 922(g)(1).

[FN115]. Singletary, 268 F.3d at 196.

[FN116]. See Eskridge et al., supra note 54, at 266-68.

[FN117]. Singletary, 268 F.3d at 196.

[FN118]. See supra notes 84-96 and accompanying text.

[FN119]. See supra note 45.

[FN120]. Singletary, 268 F.3d at 204.

[FN121]. See, e.g., Rodriguez de Quijas v. Shearson/Amn. Express, Inc., 490 U.S. 477, 484-85 (1989) (warning lower courts that overruling a previous Supreme Court decision should be left to the Court itself, and should not be anticipated by lower courts).

[FN122]. See supra notes 84-86 and accompanying text.

[FN123]. See supra notes 49-52 and accompanying text.

[FN124]. See supra note 53 and accompanying text.

[FN125]. 18 U.S.C. 922(o)(1) (1994).

[FN126]. See generally United States v. Rybar, 103 F.3d 273 (3d Cir. 1996). For a succinct explanation of the Rybar decision, see Adrian Vermeule, Does Commerce Clause Review Have Perverse Effects?, 46 Vill. L. Rev. 1325, 1334-36 (2001). For the pre- Lopez cases, see United States v. Swida, 180 F. Supp. 2d 652, 653 (M.D. Pa. 2002).

[FN127]. See generally Swida, 180 F. Supp. 2d 652.

[FN128]. 103 F.3d 273.

[FN129]. Id. at 278.

[FN130]. See id. at 279.

[FN131]. See id. at 282. The Rybar court insisted that "possession and transfer" of a machine gun is without a doubt "economic activity." Id. But 922(o)(1) prohibits two things: transfer or possession.

[FN132]. Rybar, 103 F.3d at 283.

[FN133]. Id. at 285.

[FN134]. Swida, 180 F. Supp. 2d at 657.

[FN135]. Id. (internal quotation marks omitted).

[FN136]. Id.

[FN137]. Id.

[FN138]. Id.

[FN139]. See Swida, 180 F. Supp. 2d at 657; United States v. Rodia, 194 F.3d 465, 475-77 (3d Cir. 1999).

[FN140]. Swida, 180 F. Supp. 2d at 658-59.

[FN141]. Id. at 659.

[FN142]. See id. at 656-59.

[FN143]. 18 U.S.C. 922(o)(1) ("Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.") (emphasis added).

[FN144]. Swida, 180 F. Supp. 2d at 653.

[FN145]. See supra notes 25-39 and accompanying text.

[FN146]. See supra notes 35-42 and accompanying text.

[FN147]. See supra notes 28-35 and accompanying text.

[FN148]. See Rodia, 194 F.3d at 468. It is worth mentioning that the Rodia court did not rely solely on the presence of the jurisdictional nexus in upholding the statute. In fact, the court rejected such a categorical rule because "the jurisdictional hook may be so attenuated as to fail to guarantee that the activity regulated has a substantial effect on interstate commerce." Id. at 472.

[FN149]. Swida, 180 F. Supp. 2d at 659 (citing United States v. Haney, 264 F.3d 1161, 1168 (10th Cir. 2000) (internal quotation marks omitted)).

[FN150]. See 18 U.S.C. 1951(a) (1994) (making it a crime to "obstruct [], delay[], or affect[] commerce or the movement of any article or commodity in commerce, by robbery.").

[FN151]. See 18 U.S.C. 2113(a) (1994). The statute reads:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny --

Shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. 2113(a).

[FN152]. 317 U.S. 111 (1942).

[FN153]. 265 F.3d 758 (9th Cir. 2001).

[FN154]. See id. at 759 .

[FN155]. See id. at 760.

[FN156]. See id. The state convictions were reversed because the wiretap information obtained by Nevada authorities violated Montana law. See id.

[FN157]. Lynch, 265 F.3d at 760.

[FN158]. See id.

[FN159]. United States v. Atcheson, 94 F.3d 1237, 1241 (9th Cir. 1996). For an extensive discussion of post- Lopez Hobbs Act challenges, see Michael McGrail, Note, The Hobbs Act After Lopez, 41 B.C. L. Rev. 949, 959-66 (2000).

[FN160]. See Atcheson, 94 F.3d at 1242.

[FN161]. Lynch, 265 F.3d at 761 (citing Lopez, 514 U.S. at 558). This citation is slightly misleading, for the Lopez Court was merely quoting from Maryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968), in which the majority in that case responded to a claim by a dissenting Justice that Wickard v. Filburn stood for the proposition that the Supreme Court was essentially powerless to limit congressional power under the Commerce Clause since all activities that affect commerce, however minutely, were subject to congressional regulation. Lopez, 514 U.S. at 558. The Court used the quotation to emphasize that the statute must first regulate activity that substantially affected interstate commerce, in order to regulate individual, de minimis conduct.

[FN162]. See Lynch, 265 F.3d at 758.

[FN163]. Id. at 761.

[FN164]. See id. at 762.

[FN165]. Id. at 761.

[FN166]. See id. at 762.

[FN167]. The theory behind a "depletion of assets" claim under the Hobbs Act is that robbery, extortion, or the payment of a bribe reduces the assets of the victim, leaving them with fewer assets with which to purchase goods and services in interstate commerce. McGrail, supra note 159, at 961 n.107.

[FN168]. See United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994).

[FN169]. Lynch, 265 F.3d at 762.

[FN170]. See United States v. Quigley, 53 F.3d 909, 910-11 (8th Cir. 1995).

[FN171]. See United States v. Diaz, 248 F.3d 1065, 1084-85 (11th Cir. 2001).

[FN172]. See United States v. Buffey, 899 F.2d 1402, 1404-06 (4th Cir. 1990).

[FN173]. See United States v. Wang, 222 F.3d 234, 238-39 (6th Cir. 2000).

[FN174]. See United States v. Mattson, 671 F.2d 1020, 1023-25 (7th Cir. 1982).

[FN175]. Lynch, 265 F.3d at 762.

[FN176]. See Norman Abrahms & Sarah Sun Beale, Federal Criminal Law and Its Enforcement 241 (3d ed. 2001); see also George D. Brown, Constitutionalizing the Federal Criminal Law Debate: Morrison, Jones, and the ABA, 2001 U. Ill. L. Rev. 983.

Although many courts have rejected Lopez-based attacks on the de minimus approach, it is clearly at variance with the spirit of that case. Moreover, it also seems at variance with the notion that one of the potential advantages of jurisdictional elements is that they can serve as a means of identifying the cases where federal intervention is necessary.

Id. at 1019.

[FN177]. 94 F. 3d 1237.

[FN178]. See United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995) (reversing federal arson conviction where private, noncommercial residence involved). For a discussion of Pappadopoulos, see Reynolds & Denning, supra note 2, at 386-91.

[FN179]. Lynch, 265 F.3d at 763.

[FN180]. 40 F.3d 95.

[FN181]. Lynch, 265 F.3d at 764.

[FN182]. See id.

[FN183]. Contrast United States v. Bailey, No. 01 C 6419, 2001 WL 987370 (N.D. Ill. Aug. 21, 2001). There, the defendant sought post-conviction relief from his Hobbs Act conviction, citing Jones in support of his argument that his actions were not covered by the statute. Id. at *1. The court held that his appeal "plainly cannot succeed." Id. Ignoring the fact that Jones was a unanimous opinion, the court said that "[t]o be sure, a narrow majority of the Supreme Court... has in recent years issued a few opinions that have constricted the long-standing construction of the Commerce Clause that gave Congress sweeping power to criminalize activity under the auspices of that clause." Id. But the court held that those decisions did not support the defendant's position. Id. According to the court, Jones held only that a private residence was not "used in commerce" as the statute required. See Bailey, 2001 WL 987370, at *1. Without examining Jones, or Lopez and Morrison (the court did not even cite the latter case), it concluded that the facts here--police officers had robbed an undercover officer posing as a drug dealer of $1200--were similar to a pre- Morrison, pre- Jones Seventh Circuit case from 1998 that upheld a Hobbs Act conviction on similar facts. Id. at *2 (citing United States v. Thomas, 159 F.3d 296 (7th Cir. 1998)). The Thomas opinion, which Bailey cited as controlling, was written by Judge Posner and does not discuss Lopez at all. But Bailey does not even summarize the facts or the holding in Thomas, merely stating that it applies, and rejecting a case from the Sixth Circuit in which the robbery of an individual was held to be outside the scope of the Hobbs Act. See generally Wang, 222 F.3d 234. Sadly, this summary disposition is more common than the more thoughtful approach taken by the Ninth Circuit in Lynch.

[FN184]. 265 F.3d 150 (3d Cir. 2001).

[FN185]. The defendant had robbed an Edison, New Jersey bank of approximately $3500. See id. at 152-53. He was indicted and convicted under the federal robbery statute, and was sentenced to 111 months in prison. See id.

[FN186]. Id. at 153 (quoting United States v. Watts, 256 F.3d 630, 631 (7th Cir. 2001)).

[FN187]. Id.

[FN188]. Spinello, 265 F.3d at 154.

[FN189]. Id.

[FN190]. Id. at 155.

[FN191]. Id.

[FN192]. Judge Becker made this point nicely in an earlier Third Circuit case. See supra notes 78-83.

[FN193]. 265 F.3d at 155.

[FN194]. Id. at 156; see also United States v. Bishop, 66 F.3d 569, 581 (3d Cir. 1995) (upholding federal carjacking statute; arguing that forced transfer between crime victim and perpetrator was economic activity and that "[r]eplicated 15,000 or 20,000 times per year, the economic effects are indeed profound").

[FN195]. Spinello, 265 F.3d at 156.

[FN196]. Id.

[FN197]. Id. at 157 (internal quotation marks omitted).

[FN198]. Id. at 157-58.

[FN199]. See id. at 158.

[FN200]. 256 F.3d 630.

[FN201]. Id. at 634.

[FN202]. Spinello, 265 F.3d at 158.

[FN203]. See 1 Laurence H. Tribe, American Constitutional Law 5-5, at 826 (3d ed. 2000) (stating that "the Court reaffirmed Congress' plenary power over the channels and instrumentalities of interstate commerce, as well as its power over objects or persons that are in some sense participating 'in' interstate commerce and over activities jurisdictionally 'connected' to interstate commerce"); cf. Vermeule, supra note 126 (suggesting that Lopez creates perverse incentives for Congress to legislative more comprehensively, so as to take advantage of the Court's implicit approval, in Lopez, of aggregation and "comprehensive governmental regulatory schemes" in its "affecting commerce" rationale). Bob Pushaw and Grant Nelson, however, have urged some retrenchment of the "instrumentalities" and "channels" analysis, and would grant far less power to Congress to regulate under these categories, absent some connection to interstate commerce. See Grant S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control Over Social Issues, 85 Iowa L. Rev. 1, 84-85 (1999).

[FN204]. 227 F.3d 660 [hereinafter Faasse I].

[FN205]. See 18 U.S.C. 228 (1994).

[FN206]. See Faasse I, 227 F.3d at 662-63.

[FN207]. Id. at 664.

[FN208]. Id.

[FN209]. Id.

[FN210]. Id. at 665.

[FN211]. Because the statute went beyond simple enforcement of an existing judicial order, the panel concluded that it could not be justified under the Constitution's Full Faith and Credit Clause, which specifically authorizes Congress to take steps to facilitate the interstate enforcement of state court orders. Faasse I, 227 F.3d 664 (citing U.S. Const. art. IV, 1, cl. 2).

[FN212]. Id. at 667. The court noted that there was some dispute as to whether the effect on commerce must be substantial, or whether any effect was sufficient and concluded, quoting Lopez, that the Commerce Clause required "an analysis of whether the regulated activity 'substantially affects' interstate commerce." Id.

[FN213]. Id. at 668.

[FN214]. Id. at 669. For a case upholding an amended version of the CSRA on the theory that it did regulate something in interstate commerce, see United States v. MacWeeney, No. 00 CR. 0223 (SHS), 2000 WL 1634400, at *2 (S.D.N.Y. Oct. 31, 2000).

[FN215]. 379 U.S. 241 (1964).

[FN216]. 379 U.S. 294 (1964).

[FN217]. Faasse I, 227 F.3d at 669 (citing United States v. Bailey, 115 F.3d 1222, 1239 n.15 (5th Cir. 1997)).

[FN218]. Id. at 670.

[FN219]. Id.

[FN220]. Id. at 671 (quoting Lopez, 514 U.S. at 561). But see supra notes 153-75 and accompanying text (noting popularity of "depletion of assets" theory in Hobbs Act cases).

[FN221]. Faasse I, 227 F.3d at 672 (quoting Morrison, 529 U.S. at 598- 99).

[FN222]. No. S1 00 CR. 653(RWS), 2001 WL 111278 (S.D.N.Y. Feb. 8, 2001) [hereinafter King I].

[FN223]. 92 F.3d 101 (2d Cir. 1996).

[FN224]. Id. at 105-06.

[FN225]. King I, 2001 WL 111278, at *15-16, 21.

[FN226]. United States v. Faasse, 265 F.3d 475 (6th Cir. 2001) [hereinafter Faasse II].

[FN227]. Id. at 481-82.

[FN228]. See id. at 482 & n.5.

[FN229]. Id. at 483-84.

[FN230]. See id. at 489-91. Judge Batchelder, who wrote the original Faasse opinion, filed a dissent in which three other judges joined, in which she reiterated her analysis, concluding that the Commerce Clause did not authorize the passage of the CSRA. Faasse II, 265 F.3d at 494 (Batchelder, J., dissenting).

[FN231]. See United States v. King, 276 F.3d 109 (2d Cir. 2002) [hereinafter King II].

[FN232]. Id. at 112.

[FN233]. Id.

[FN234]. Id. at 113.

[FN235]. Id. at 112.

[FN236]. With regard to the finding that punishing the failure to pay a child support obligation cannot be justified under Congress's power to regulate the channels of interstate commerce, as some courts have held, see, for example, Bailey, 115 F.3d at 1226, she appears to be on somewhat more solid ground. The CSRA contains a provision making it a crime to "travel[] in interstate or foreign commerce with the intent to evade a support obligation." 18 U.S.C. 228(a)(2). This provision is more consistent with the power of Congress to close the channels of interstate commerce to harmful or injurious uses that the Court has approved. See, e.g., Caminetti v. United States, 242 U.S. 470 (1917); Hipolite Egg Co. v. United States, 220 U.S. 45 (1911); Champion v. Ames, 188 U.S. 321 (1903).

[FN237]. 514 U.S. at 561, 567 (describing the third category of regulation as "regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce," but later saying that gun possession in school zone "is in no sense economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce").

[FN238]. One possible alternative to the Commerce Clause for sustaining the CSRA would seem to be the Full Faith and Credit Act of Article IV, which states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." U.S. Const. art. IV, 1. Judge Batchelder rejected this approach in Faasse I, writing that the CSRA "regulates, through the criminal law, obligations owed by one family member to another, using diversity of residence as a jurisdictional 'hook."' 227 F.3d at 664. She found this feature of the statute "troubling" because it was "the States [that] possess primary authority for defining and enforcing both the criminal law and the law of domestic relations." Id. The CSRA "criminalizes a situation that is not criminal in Michigan." Id. But it's not clear why this eliminates the Full Faith and Credit Clause as a source of congressional power when coupled with the Necessary and Proper Clause. U.S. Const. art. I, 8, cl. 18. The provisions of Article IV are commands addressed to the states to do (or refrain from doing) certain things, but the Full Faith and Credit Clause also states that Congress has power to make "general Laws prescrib[ing] the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." U.S. Const. art. IV, 1. Here, Congress might be said to have merely made clear one "effect" of nonpayment by a resident of one state to a resident of another of a judicially-imposed obligation is criminal sanction. That it covers a situation (presumably moving into another state and not making the payment) that is not criminal in Michigan seems to be beside the point. Moreover, there might be constitutional problems if Michigan were to criminalize that conduct.

[FN239]. 265 F.3d 475 [hereinafter Faasse II].

[FN240]. 276 F.3d 109 [hereinafter King II].

[FN241]. See Faasse II, 265 F.3d at 494 (Batchelder, J., dissenting) (accusing the majority of "transform[ing] the Commerce Clause... into a virtually limitless federal police power, contrary to the Supreme Court's recent holdings in Lopez and Morrison").

[FN242]. 514 U.S. 549 (1995).

[FN243]. 529 U.S. 598 (2000).

[FN244]. 529 U.S. 848 (2000).

[FN245]. Morrison's silence has left plenty of room for courts to continue to avoid the logical conclusions of the Court's cases while still seeming to interpret and apply precedent in good faith. For example, as the felon-in- possession cases suggest, the courts need guidance to determine whether a jurisdictional nexus requiring the gun to be "in" interstate commerce is satisfied by a mere de minimis effect on interstate commerce. This is intertwined with another important question: under what circumstances, exactly, should Congress be allowed to aggregate local activity to satisfy Lopez's "substantial effects" test; and, to be aggregated, must the activity be strictly commercial? How broadly should courts construe "economic" or "commercial" activity? To what extent do the Lopez and Morrison principles apply beyond the "affecting commerce" category of regulation? Can jurisdictional nexus requirements save statutes that arguably regulate activity so tenuously related to interstate commerce as to make the "substantial effects" test impossible to satisfy? Is a congressional act regulating channels or instrumentalities of interstate commerce that arguably converts the Commerce Clause into a police power as suspect as one that regulates intrastate activity "affecting" commerce? Do the constitutional doubts about the arson conviction in Jones suggest that saving constructions of other federal criminal statutes, outside the arson context, are appropriate? This, of course, is not meant to be an exhaustive list, and we realize that the Court is hardly in the position to influence the records of the cases that come to it, but in exercising its discretion, it might choose those cases presenting facts that allow it to clarify questions that, nearly eight years after Lopez, still linger.

Unfortunately, the Supreme Court has perhaps signaled that it, too, is uncertain how to proceed. During the 2000-01 Term, it denied certiorari in a closely-watched Endangered Species Act case from the Fourth Circuit, Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied sub. nom. Gibbs v. Norton, 121 S. Ct. 1081 (2001), and a Third Circuit case upholding the civil remedy provision contained in the Federal Access to Clinics Entrances Act, United States v. Gregg, 226 F.3d 253 (3d Cir. 2000), cert. denied, 532 U.S. 971 (2001). Moreover, in another eagerly-anticipated case involving a U.S. Army Corps of Engineers Rule regulating migratory waterfowl in isolated, intrastate wetlands, Solid Waste Agency v. United States Army Corps of Engineers, 531 U.S. 159 (2001), the Supreme Court avoided the constitutional issue by concluding that Congress had not given statutory authority to the Corps to issue the rule. Id. at 174. In his dissent, Justice Stevens concluded that Congress had authorized the rule, and that it was permissible under both Lopez and Morrison. See id. at 694-95 (Stevens, J., dissenting). For more on the migratory bird rule, see Michael J. Gerhardt, The Curious Flight of the Migratory Bird Rule, 31 Envtl. L. Rep. 11079 (2001). This follows the Court's pattern in the past: to issue decisions, like Lopez, then allow the import of the cases to sink in before taking up additional cases to further clarify its holdings. But while such restraint was understandable immediately following Lopez, lower courts should no longer be surprised by Supreme Court decisions enforcing federalism principles. With Morrison, the Court signaled that it was serious about Lopez; the time seems ripe for choosing one or more of the lower court cases to answer the remaining questions about the scope of the commerce power--if for no other reason than to provide some guidance to lower courts that still struggle with the import of Lopez and Morrison.

[FN246]. See, e.g., Frank B. Cross & Emerson H. Tiller, The Three Faces of Federalism: An Empirical Assessment of Supreme Court Federalism Jurisprudence, 73 S. Cal. L. Rev. 741, 770-71 (2000) (concluding that the Court's federalism decisions are driven largely by ideology); see also Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Court of Appeals, 107 Yale L.J. 2155 (1998) (discussing the effects of ideology or partisan preferences on judges' adherence to legal doctrine).

[FN247]. 276 F.3d 211 (6th Cir. 2002).

[FN248]. Jack W. Peltason, Federal Courts in the Political Process 60 (1995). He went on to note that in 46 of 175 cases requiring further litigation after being remanded to state courts by the United States Supreme Court between 1941-51, nearly half resulted in a loss for the party that was victorious in the Supreme Court. Id.

[FN249]. Walter F. Murphy, Elements of Judicial Strategy 24 (1964).

[FN250]. Id.

[FN251]. Id.

[FN252]. A further difficulty is classifying the result in a case as liberal or conservative. Is it "conservative" to strike down an act of Congress? Are decisions that uphold federal criminal statutes, even when recent Supreme Court cases call those statutes into question, "conservative" ?

[FN253]. Even judges widely labeled "conservative" were not necessarily any better at taking Lopez and Morrison seriously. For example Frank Easterbrook wrote the Seventh Circuit opinion in Jones, which was reversed by the Supreme Court. See supra notes 49-53 and accompanying text. Also consider the following example from Fifth Circuit Judge (and possible Bush Supreme Court appointee) Emilio Garza.

In United States v. Meshack, 225 F.3d 556 (5th Cir. 2000), the court upheld the federal money laundering statute. Judge Garza's entire analysis of the Commerce Clause issue in this case is as follows:

The legislative history of 1956(c)(4) indicates that the money laundering statute "is intended to reflect the full exercise of Congress's power under the Commerce Clause." Accordingly, because 1956 regulates conduct that, in the aggregate, has a substantial effect on interstate commerce, to apply the statute constitutionally in any given case "the link to interstate commerce need only be slight."

Id. at 572 (citing United States v. Westbrook 119 F.3d 1176 (5th Cir. 1997); United States v. Gallo, 927 F.2d 815 (5th Cir. 1991)). Garza's Commerce Clause analysis is not exactly wrong here--though he cites only pre- Morrison and pre- Lopez authority in support of his position--but it skips many steps and does not even acknowledge that there might be an issue. The crime in question is money laundering, which seems plausibly enough to constitute "commercial activity" of the sort that Congress can regulate. It would be nice, however, if the opinion said so. At least Garza's treatment of Lopez and Morrison may serve to reassure those who fear that Garza, as a future Supreme Court Justice, might leap at any chance to impose minimalist philosophies of government by judicial fiat. See, e.g., Bill Rankin, Move to right seems certain; Expect backlash if any Bush nominees are seen as too conservative, Atlanta Journal-Constitution, Dec. 17, 2000, at G6 (describing Garza as having "a conservative ideology with a paper trail of rulings to prove it").

[FN254]. William M. Richman & William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 Cornell L.J. 273 (1996).

[FN255]. Id. at 278.

[FN256]. Id. at 279-81.

[FN257]. Id. at 281-86.

[FN258]. Id. at 286-92. For confirmation of the role of what Richman and Reynolds call "para-judges" play in the disposition of cases from a prominent federal judge, see Edith H. Jones, Back to the Future for Federal Appeals Courts: Rationing Federal Justice by Recovering Limited Jurisdiction, 73 Tex. L. Rev. 1485, 1491 (1995) (book review) (noting that without the use of staff attorneys, clerks, and secretaries "[a]ppellate judges could not handle the workload").

[FN259]. Richman & Reynolds, supra note 254, at 292.

[FN260]. Id. at 293.

[FN261]. Id. at 294.

[FN262]. Id. at 295-96. Judge Jones claims that these appeals are the cause of the appellate courts' problems. See Jones, supra note 258, at 1493.

[T]he press of unmeritorious appeals forces judges to ration their talents and to rely unduly on their law clerks even in cases that deserve the utmost commitment of time and intellect. Put another way, as the docket is 'dumbed down' by an overwhelming number of routine or trivial appeals, judges become accustomed to seeking routine methods of case disposition.... The situation is like that of a competitive tennis player forced to spend the bulk of his time rallying with novices.


[FN263]. See Gilbert S. Merritt, Owen Fiss on Paradise Lost: The Judicial Bureaucracy in the Administrative State, 92 Yale L.J. 1469, 1471 (1983).

[FN264]. Id.

[FN265]. Id.

[FN266]. See Richman & Reynolds, supra note 254, at 292.

[FN267]. Those cases were not featured extensively in our analysis in this paper, however, primarily because the cases we discussed above have some reasoning that is available for analysis, unlike many of the unpublished and per curiam decisions.

[FN268]. See Jones, supra note 258.

[FN269]. For recent complaints along these lines, see Neal Devins, How Constitutional Law Casebooks Perpetuate the Myth of Judicial Supremacy, 3 Green Bag 2d 259 (2000); Sanford Levinson, On Positivism and Potted Plants: "Inferior" Judges and the Task of Constitutional Interpretation, 25 Conn. L. Rev. 843, 844 (1993); Gerald Rosenberg, Across the Great Divide (Between Law and Political Science), 3 Green Bag 2d 267 (2000).

[FN270]. See, e.g., Brannon P. Denning & Glenn H. Reynolds, Constitutional "Incidents": Interpretation in Real Time, 70 Tenn. L. Rev. (forthcoming 2003) (offering methodology for identifying and studying extra-judicial constitutional interpretation).

[FN271]. Ashutosh Bhagwat, Separate but Equal?: The Supreme Court, the Lower Federal Courts, and the Nature of the "Judicial Power," 80 B.U. L. Rev. 967, 967-73 (2000) (noting the trend and citing recent examples).

[FN272]. Id. at 973.

[FN273]. Id. at 975 (footnote omitted).

[FN274]. See, e.g., Arthur D. Hellman, The Shrunken Docket of the Rehnquist Court, 1996 Sup. Ct. Rev. 403; David M. O'Brien, The Rehnquist Court's Shrinking Plenary Docket, 80 Judicature 58 (1996).

[FN275]. See Bhagwat, supra note 271, at 975.

[FN276]. Id. (footnote omitted). This enforcement of hierarchy, incidentally, appears to be replicating itself in the circuits themselves. District court judges, and even three-judge panels, will follow a prior case of the circuit unless the result has been overruled or superceded by a Supreme Court decision or by an en banc decision of the circuit itself. Because of the insistence that lower courts not "underrule" a previous Supreme Court case, many circuit courts find ample room to validate their earlier cases.

[FN277]. See supra notes 248-51 and accompanying text.

[FN278]. Bhagwat, supra note 271, at 986.

[FN279]. But, as Bhagwat notes, they are hardly restricted to Commerce Clause cases. See id. at 987-90. His examples support the troubling conclusion that this is not a problem unique to the area, but rather one that has just not been commented upon because legal academics have not regularly studied lower court implementation of Supreme Court decisions. See supra notes 269-70 and accompanying text.

[FN280]. See Baghwat, supra note 271, at 991.

[FN281]. See supra notes 37-45 and accompanying text (noting Court's refusal to lay down a rule excluding noneconomic activity from Wickard-style aggregation).

[FN282]. See Baghwat, supra note 271, at 991.

[FN283]. Id. at 1006.

[FN284]. Id. at 1013.

[FN285]. Id.

[FN286]. Id. Bhagwat wrote:

[A] greater independence on the part of "inferior" federal judges, a greater willingness to think for themselves, to deviate from doctrine which does not make sense, and to try and impose doctrinal coherence on the Court's work, would in practice limit the Court's power to some extent. At a minimum, it would force the Court to focus more on reasons and on traditional legal analysis than on the raw exercise of power in reaching decisions and formulating doctrine. It might even lead the Court to take notice of the effect of, and difficulties in, implementing its decisions.

Baghwat, supra note 271, at 1013.

[FN287]. Id.

[FN288]. See supra note 22 and accompanying text.

[FN289]. Nor, apparently, is the problem restricted only to Commerce Clause cases or necessarily to the lower courts, see Richard A. Posner, Federal Courts: Challenge and Reform 351 (1996) ("I have not said that modern judicial opinions are longer than they could be; they are longer than they need be.... Many [modern judicial] opinions, once the boilerplate of procedural details, supernumerary facts, and redundant or inapposite citations is stripped away, are too short; the analysis is missing.").

[FN290]. See Rosenberg, supra note 269.

[FN291]. The present situation, however, bodes poorly for the legitimacy of the Article III judiciary. Federal judges are given what amounts to life tenure in the expectation that they will enforce the law honestly, without regard to the unpopularity of defendants charged with crimes, or the popularity of statutes placed before them for judicial review. Our analysis of the lower court cases following Lopez, Morrison, and Jones suggests that the lower federal courts are falling far short of that standard. Yet if the federal courts are not living up to the ideal of even-handed justice held out in Article III, then what, exactly, is the justification for life tenure? The argument against an elected judiciary, after all, is that it will bow to political pressure and partisan interest. To make that argument effective, the appointed federal judiciary must avoid succumbing to the same vices. Yet the post- Lopez lower court cases raise troubling doubts about the political neutrality, and the judicial craftsmanship, of the district courts and courts of appeal.

[FN292]. For example, it would be interesting to hear the lower court judges in some of these cases explain what they understood Lopez, Morrison, and Jones to stand for. And what they understood the "test" in Commerce Clause cases to be. While such technical questions would hardly make for riveting television, we suggest that they may be more revealing than the ersatz constitutional law colloquies in which senators try to engage nominees. But seeRonald D. Rotunda, The Role of Ideology in Confirming Federal Court Judges, 15 Geo. J. Legal Ethics 127 (2001) (arguing that such questions, to the extent they are asked in order to elicit a tacit promise from a nominee to vote one way or another in future cases, are inappropriate).

[FN293]. See, e.g., Glenn H. Reynolds, Chaos and the Court, 91 Colum. L. Rev. 110 (1991) (describing complexity and indeterminacy of the judicial system); J.B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and its Practical Meaning for Democracy, 49 Vand. L. Rev. 1407 (1996).

[FN294]. For a forceful demonstration of the importance of perceived legitimacy see Randy E. Barnett, Guns, Militias, and Oklahoma City, 62 Tenn. L. Rev. 443 (1995).