2000 WILR 369

(Cite as: 2000 Wis. L. Rev. 369)

Wisconsin Law Review





Glenn H. Reynolds [FNa1]; & Brannon P. Denning [FNaa1]

Copyright © 2000 University of Wisconsin; Glenn H. Reynolds; & Brannon P.


[N]othing could be more obscure and out of reach of the common man than a law founded on precedent. . . . A French lawyer is just a man of learning, but an English or an American one is somewhat like the Egyptian priests, being, as they were, the only interpreters of an occult science. [FN1]

The Supreme Court's 1995 decision in United States v. Lopez has been described in widely varying terms. [FN2] Some have described Lopez as the harbinger of a far more rigorous and traditional approach on the part of the Court to questions of enumerated powers, perhaps even as the first shot in a battle to dismantle the post-1937 edifice of expansive government power that has been the New Deal's legacy. [FN3] Others have *370 described Lopez as a more or less symbolic statement: an acknowledgment by the Court that we still live under a system in which the federal government's powers are nominally limited, but one of no practical impact in future cases. [FN4]

With Lopez now five years old, it is worth taking a look to see which characterization is right. From the standpoint of later Supreme Court opinions, Lopez does look like a harbinger of change: It has been followed by numerous opinions stressing the limited nature of federal power, the importance of federalism, and so on--all points that a Court committed to a serious, as opposed to symbolic, approach could be expected to make. [FN5]

But in a very real sense, the Supreme Court's subsequent opinions are not the only--or perhaps even the most important--measure of Lopez's impact. The Supreme Court, after all, hears only a hundred or so cases, more or less (these days, less). For the vast majority of litigants, the courts of appeal represent the real last word in constitutional law. [FN6] And in these courts, the impact of Lopez has been limited, to say the least.

*371 In the pages to come, we will survey the different approaches that lower courts have taken in interpreting and applying the Lopez opinion. We will then draw some conclusions regarding not only the future of Lopez and the reasoning it embodies, but also the interaction among the Supreme Court and the various lower courts. We find that lower courts have tended to limit Lopez to its facts, rather than using it as a springboard to enforce a more robust theory of federalism. While from one vantage point, the courts of appeals' actions may seem obstructionist, we argue that they are, in part, a reflection of and reaction to the uncertainty and ambiguity of the Lopez opinion itself. The Supreme Court has, in this current Term, an opportunity to clarify the meaning and scope of Lopez. We conclude, therefore, with a plea for clearer directives from the Court--however broad or narrow they may be. One thing seems clear: The role of precedent and authority in day-to-day litigation does not always match the straightforward models taught in most law school courses. Whether that is a good thing depends on one's perspective.

I.Lopez: A Brief Review

A. The Opinion

The Lopez case involved a law, passed during Congress's biennial ritual of chest-thumping over crime, that forbade the possession of a firearm within one thousand feet of a public or private school. [FN7] Passed (apparently) as an exercise of Congress's power to regulate commerce among the states, the statute had little to do with crime, and much to do with pleasing crime-related lobby groups and enhancing Congress's prospects for reelection. Jeffrey Rosen of The New Republic noted after the decision that "there is no uniquely federal interest involved--except for the purely symbolic interest of congressional Democrats and Republicans in appearing simultaneously tough on crime and tenderhearted on children." [FN8]

*372 Even symbolic legislation, however, has consequences in the real world, and this legislation was no exception. Alfonso Lopez, a twelfth-grader at Edison High School in San Antonio, Texas, was caught with a revolver on school property. He was initially charged under a Texas law, which (like that of most states) already forbade the carrying of guns at school. Shortly thereafter, though, he was charged under the federal law, and the state charges were dropped. [FN9]

Lopez's conviction was overturned by the Fifth Circuit on the ground that the statute under which he was convicted was beyond the enumerated powers of Congress. [FN10] The original statute did not say what power Congress was relying upon in passing the statute; in the post-Wickard world such things appeared unnecessary. [FN11] Once challenged, the government asserted that the statute represented an exercise of Congress's power to regulate commerce among the several states. [FN12] The government's argument, in brief, was that (1) the costs of crime are spread across the nation through the mechanism of insurance, so that crime affects interstate commerce, and that guns in schools promote crime; (2) crime makes people less willing to travel, and guns in schools promote crime; and, most interestingly, (3) the "national productivity" argument that guns in school promote violence, violence promotes poor learning, poor learning produces an undereducated work force, an undereducated work force produces a less-productive economy, and a less- productive economy naturally produces less commerce among the states. [FN13] Hence, by regulating the possession of guns on school property, Congress was, in essence, regulating commerce among the states.

The Court rejected this argument. Writing for the majority, Chief Justice Rehnquist noted that under the U.S. constitutional system, the federal government is intended to be one of limited and enumerated powers. Under the government's formulation, however, he stated that "it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education . . . ." [FN14] Thus, the majority found that accepting the government's theory would necessarily mean creating a federal government of general, rather than limited, powers, with no limits on its jurisdiction beyond those imposed by the affirmative prohibitions of the Bill of Rights. [FN15]

But far from repudiating six decades of commerce clause jurisprudence, Chief Justice Rehnquist was careful to describe what Lopez did not do. His majority opinion offered up three broad categories of *373 activity that Congress can regulate under the Commerce Clause. [FN16] First, Congress can regulate the use of the "channels" of interstate commerce, keeping them clear of "immoral and injurious uses" (hereinafter "Category One" regulations). [FN17] Likewise, Congress may regulate the "instrumentalities" of interstate commerce ("Category Two"). [FN18] Finally, Congress may regulate intrastate activities that "substantially affect" interstate commerce ("Category Three"). [FN19]

Rehnquist went on to describe factors relevant to determining the constitutionality of Category Three regulations. First, was the regulation connected to "any sort of economic enterprise" ? [FN20] Was it part of an overall regulation of economic activity whose purpose would be undermined if intrastate activity was not reachable? [FN21] Does the statute in question have a jurisdictional element "which would ensure, through case-by-case inquiry, that [the activity] affects interstate commerce" ? [FN22] The Chief Justice also noted the lack of legislative history supporting the government's claim that there was a nexus between gun possession and interstate commerce. [FN23] The government's claim, wrote Rehnquist, amounted to merely piling "inference upon inference," [FN24] and Rehnquist was obviously concerned that to accept it would render "unlimited" the congressional commerce power, a result then-Justice Rehnquist had warned against in 1981. [FN25]

*374 Four dissenters, led by Justice Breyer, disagreed, or at least did not object to the creation of an essentially unlimited commerce power. The dissent accepted the government's "national productivity" argument that possession of guns in school is bad for education, and that what is bad for education is bad for the national economy. In the dissent's formulation, Congress's power to regulate commerce among the states should be read as the power to manage the national economy. According to the dissent,

Congress could have found that gun-related violence near the classroom poses a serious economic threat (1) to consequently inadequately educated workers who must endure low paying jobs, and (2) to communities and businesses that might (in today's "information society") otherwise gain, from a well-educated work force, an important commercial advantage . . . . [FN26] Stressing "the immediacy of the connection between education and the national economic well-being," [FN27] and implicitly interpreting Congress's power to regulate commerce as a power to promote the national economic well-being, the dissent would have upheld the statute as a valid exercise of Congress's power to regulate commerce among the states. [FN28] But Chief Justice Rehnquist's position won the day, so it is the focus of inquiry here.

B.Lopez's Unanswered Questions

The majority opinion is notable for the questions it leaves unanswered. [FN29] First, there is Justice Rehnquist's summary of the Court's Commerce Clause jurisprudence. For the Chief Justice, Wickard v. *375 Filburn [FN30] is the apotheosis of the Court's expansion of the Commerce Clause. [FN31] Katzenbach v. McClung [FN32] and Perez v. United States [FN33] are merely postscript. [FN34] But did Chief Justice Rehnquist mean that the results of those cases were unimpeachable? [FN35] If so, then for all the discussion earlier in the opinion about "first principles," [FN36] the case probably stands for little more than a warning to Congress that it may do what it will, as long as it includes the correct incantations. After all, the statute upheld in Perez merely included congressional findings that loan sharking was carried on in interstate commerce and through its instrumentalities, and that even intrastate loan sharking "nevertheless directly affect[s] interstate and foreign commerce." [FN37] The result in McClung turned on the fact that Ollie's Restaurant served food that had traveled in interstate commerce. [FN38]

One might respond that the relevant distinction between Wickard and the post- New Deal Commerce Clause cases, on the one hand, and the statute in Lopez on the other, is the fact that the former concerned "commercial" activity. Indeed, this commercial/non-commercial distinction is emphasized repeatedly in the Court's opinion. [FN39] But to *376 accept this distinction begs the question whether any "commercial" statute Congress passes under its Commerce Clause authority is immune from judicial scrutiny. That implication, which has not been lost on the lower courts, [FN40] is quite at odds with the "non- infinity principle" [FN41]--the principle that any accepted theory of the Commerce Clause resulting in a virtually unlimited source of governmental power must be invalid--that forms another of the Lopez majority opinion's leitmotifs. [FN42]

*377 There is also lingering uncertainty about the immunizing effect that congressional findings have on a particular statute under review. While stating that findings are not required, [FN43] the Court explained that their presence "would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce." [FN44] What the opinion does not say, however, is that the presence of such findings would save an otherwise invalid regulation. On the one hand, the Court cited concurring opinions by individual justices stating that the Court was not bound by congressional findings that a regulated activity had a substantial effect upon interstate commerce. But these statements were included in a footnote accompanying the Chief Justice's statement that the standard of review for congressional conclusions "that a regulated activity sufficiently affected interstate commerce" was a "rational basis" standard. [FN45] Lower courts have thus, after Lopez, continued to apply an extremely deferential standard to any congressional findings. [FN46]

The most serious shortcoming of the Lopez opinion, however, is the lack of any explicit instructions or framework for the lower courts to apply to Category Three regulations. Chief Justice Rehnquist merely mentioned certain defects of the Gun Free School Zones Act and declared it to be beyond the power of Congress, all while leaving in place case law whose application to a statute with proper forms would seem to compel a court to uphold it. Moreover, the Chief Justice never specified which of the Lopez statute's flaws is the fatal one. Must a Category Three regulation be restricted to "commercial" matters to be eligible for aggregation? If not, must it contain either a jurisdictional nexus requirement or contain findings of a substantial effect on interstate commerce to be aggregated? Must it contain both? Is a commercial subject, without more, enough to regulate an entire class of intrastate *378 activities, absent either detailed findings of substantial impact or a jurisdictional requirement?

Like Akira Kurosawa's 1950 film Rashomon, in which four witnesses to a brutal crime relate four different accounts of the same event, in the five years since Lopez was decided, lower courts have interpreted Lopez so differently that one wonders whether they all read the same opinion. Of course they all did, which raises interesting questions about the majority opinion itself, and the nature of contemporary Supreme Court decisionmaking generally, which is discussed below. [FN47]

II. The Three Faces of Lopez

Lopez can be interpreted in strong, weak, or symbolic fashion, or it can be dismissed as judicial frolic and detour, "destined to be a 'but see' citation" rather than "a dramatic shift in Commerce Clause jurisprudence." [FN48] A strong interpretation would cast Lopez as a command that any action by Congress be closely linked to its enumerated powers. Justice Thomas argued for such a rule in his separate concurrence, [FN49] and such a rule is certainly implicit--though perhaps not explicit--in Chief Justice Rehnquist's majority opinion. A strong Lopez opinion might also be expected to interpret Lopez in light of other recent Supreme Court decisions expanding the judicial role in policing the boundaries of federalism.

A somewhat less-strict interpretation of Lopez might emphasize the "non- infinity principle" [FN50]--that while the linkage between legislation and enumerated powers need not be as direct as Justice Thomas would prefer, any justification for congressional power must not be one that would undermine the very notion of enumerated powers. If the definition of "commerce" used to uphold a statute is one that would allow Congress to regulate everything under the commerce power, then the statute must fall. [FN51] Thus, under this "weak Lopez" rule, indirect linkages to commerce may be okay, so long as they are not too indirect. A weak Lopez reading *379 might also, out of deference toward reliance interests and regard for stare decisis, leave in place cases upholding existing statutes, but give a hard look to new statutes that continue to press the boundaries of federal power. Such an approach might also reject facial challenges to statutes, in favor of "as applied" challenges.

Finally, one might treat Lopez as almost entirely, or entirely, symbolic: simply a requirement that Congress ritualistically find a connection with interstate commerce, however unpersuasive or attenuated that connection might be. One might call this approach, "Simon Says" Lopez. Under this approach, courts simply ensure that Congress has used certain magic words in legislation. If it has done so, the statute is upheld. If not, then the law is regretfully overturned with the admonition, reminiscent of Frank Herbert's Dune, that above all, "the forms must be obeyed." Or, beyond this level of formalism, one might simply ignore Lopez, or limit it entirely to its specific facts.

All of these approaches have been employed by federal courts where Lopez issues have been raised by litigants. The following Section describes a selection of these cases. It then discusses what these approaches might mean for the future of Lopez as a precedent, and for the notion of precedent and authority in the federal court system. [FN52]

A. Strong Lopez

Perhaps the strongest of the "strong Lopez" opinions is that of the Fourth Circuit in Brzonkala v. Virginia Polytechnic Institute, a case that the Supreme Court heard this Term. [FN53] In that case, the U.S. Court of Appeals for the Fourth Circuit struck down a part of the federal Violence Against Women Act, [FN54] granting victims of "gender-based animus" a civil remedy against their assailants, as outside of Congress's powers under both the Commerce Clause and the Fourteenth Amendment. The Brzonkala court obviously found the strong interpretation of Lopez most appealing, as the opinion's opening illustrates:

We the People, distrustful of power, and believing that government limited and dispersed protects freedom best, *380 provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves. Thus, though the authority conferred upon the federal government be broad, it is an authority constrained by no less a power than that of the People themselves. "[T]hat these limits may not be mistaken, or forgotten, the constitution is written." These simple truths of power bestowed and power withheld under the Constitution have never been more relevant than in this day, when accretion, if not actual accession, of power to the federal government seems not only unavoidable, but even expedient. [FN55] Under such an analysis, the civil- remedy provision of the Violence Against Women Act could not stand:

These foundational principles of our constitutional government dictate resolution of the matter before us. For we address here a congressional statute, Subtitle C of the Violence Against Women Act, . . . that federally punishes noncommercial intrastate violence, but is defended under Congress's power "[t]o regulate commerce . . . among the several States," . . . . Such a statute, we are constrained to conclude, simply cannot be reconciled with the principles of limited federal government upon which this Nation is founded. [FN56] According to the Fourth Circuit, this conclusion was compelled by Lopez. Lopez, the court wrote, blessed both regulation based on the aggregation of commercial activities, and regulation containing "a jurisdictional element to ensure, 'through case-by-case inquiry,' that each specific application of the regulation involves activity that in fact affects interstate commerce." [FN57] The Brzonkala court, too, emphasized the Lopez majority's economic/noneconomic distinction:

The [Lopez] Court also emphasized that, any dictum in its previous cases notwithstanding, . . . it had never extended the substantially affects test to uphold the regulation of a noneconomic activity in the absence of a jurisdictional element . . . . And it confirmed that it was unwilling to follow "[t]he broad language" in certain previous cases that had "suggested the possibility of additional expansion" of congressional authority under the Commerce Clause . . . . That the Court's focus on the failure of the Gun-Free School Zones Act either to *381 regulate economic activity or to include a jurisdictional element was intended to demarcate the outer limits--or, at the very least, the presumptive outer limits . . . of congressional power under the substantially affects test is explicitly confirmed throughout the majority and concurring opinions. [FN58]

Since, the Brzonkala court said, the activity in question was clearly noneconomic, it could not be aggregated. And since the statute did not contain a jurisdictional element, it could not be upheld on that basis either. Nor, said the court, could the statute be upheld on other grounds, as any logic that would support regulating violence stemming from "gender based animus" under the commerce power would permit the regulation of everything under the commerce power, a notion that it found clearly inconsistent with first principles of limited government. In a clear statement of the non-infinity principle, the court declared:

Lopez affirms that we must evaluate carefully the implications of our holdings upon our federal system of government and that we may not find an activity sufficiently related to interstate commerce to satisfy the substantially affects test in reliance upon arguments which, if accepted, would eliminate all limits on federal power and leave us "hard pressed to posit any activity by an individual that Congress is without power to regulate" [FN59]

Under Brzonkala's "strong Lopez" approach, then, several important points emerge. The first is that congressional power to act under the commerce power is not to be taken for granted. Effects upon interstate commerce may be "aggregated" in Wickard fashion only where the activity in question is economic--that is, commercial. Where it is not, there must be a jurisdictional element established that is sufficiently strong to allow a court to say, based on the specific facts of an individual case, that the act in question actually did (not might have, could have, or *382 should have) affect interstate commerce. And in addressing both questions, the court cannot accept arguments that would have the effect of rendering congressional power effectively limitless.

Consider, too, a dissent filed by eight judges on the Fifth Circuit Court of Appeals from the decision of an equally divided en banc court affirming the convictions of several defendants for violating the Hobbs Act [FN60] by committing several robberies in the State of Texas. [FN61] Had Judge Higginbotham's position prevailed, the dissenters would have held "that substantial effects upon interstate commerce may not be achieved by aggregating diverse, separate individual instances of intrastate activity where there is no rational basis for finding sufficient connections among them." [FN62] The Hobbs Act, the dissenters concluded, "is not a regulation of any relevant interstate economic market, nor are there other rational connections among nationwide robberies that would entitle Congress to make federal crimes of them all." [FN63] If one could aggregate the effects of all robberies to satisfy the substantial effects test, "there would be no reason one could not aggregate murders, or other felonies, to sustain general federal jurisdiction over all crimes." [FN64] As in Lopez, the government, when pressed by members of the court, "claimed to be unable to locate [limits to its position] beyond the redoubt that at some point the nexus to interstate commerce becomes too attenuated." [FN65]

Recognizing that the Hobbs Act involved a Category Three regulation, and could pass muster if the regulated activity substantially affected interstate commerce, the dissenters pointed out that the Lopez opinion "does not explain what activities can be aggregated when we are to add the effects of discrete acts." [FN66] Judge Higginbotham explained: "Merely because one robbery is similar to another in that both are members of the legislatively- selected class of activities that constitute robbery does not mean that we should examine all robberies as a group for constitutional purposes." [FN67] The dissenters would have held that "individual acts cannot be aggregated if their effects on commerce are *383 causally independent of one another. That is, if the effect on interstate commerce directly attributable to one instance of an activity does not depend in substantial part on how many other instances of the activity occur, there is an insufficient connection--in other words, an interactive effect--and the effect of different instances cannot be added." [FN68] Contrariwise, if the occurrence of one instance of the act makes it more likely that others will occur, then "the effects of different instances can be added." [FN69] Moreover, the dissenters argue, outlawing robbery is not really even economic regulation, rather it is merely the regulation of "a class of objectionable conduct." [FN70]

Responding directly to the argument that "robbery is economic activity [[because] it has an effect on prices of goods sold on interstate markets," Judge Higginbotham replied that, as the Fourteenth Amendment does not enact Social Statics, the Commerce Clause likewise does not enact the views of economists who see "the world, like the law, [as] a seamless web . . . ." [FN71] He explained that

[w]e must . . . develop an account of what "economic activity" is, without embracing here the suggestions of Gary Becker and other economists that all activity is in one way or another "economic." Economic theory informs and assists in the development of constitutional doctrine--but it is not and does not claim to be an organic limit of government. [FN72] He concluded simply that no basis exists "in the original understanding or in the case law for including robbery in economic activity." [FN73] The dissenters further bolstered their decision with reference to Lopez's allusion to areas that traditionally fell within the police power of the state: Where there is ambiguity as to an activity's economic status, its traditional regulation under a state's police power would, for the dissenters, resolve the ambiguity in favor of state, not federal, regulation. [FN74]

The Hickman dissenters then dismissed other possible justifications for upholding the Hobbs Act. Other circuit courts that upheld the Hobbs Act on the grounds that only a de minimis effect on interstate commerce was required either did so in a "conclusory" manner or "simply assume that aggregation applies to all activities, without acknowledging that Lopez approvingly discussed the aggregation principle only in *384 conjunction with economic activity." [FN75] Circuit courts that denied activities must in some way be related to be aggregated ruled in a manner inconsistent with the Lopez decision itself, and "ha[d] trouble making sense of the Supreme Court's signal that courts will need to distinguish between commercial and noncommercial activity." [FN76]

The presence of a jurisdictional element, the dissenters further argued, did not immunize the Act. "A jurisdictional element by itself cannot save a statute that exceeds congressional authority. The jurisdictional element must in some way be meaningful, and the Supreme Court has specified a condition for meaningfulness in its substantial effects test." [FN77] It "never stated that any jurisdictional element with the words 'affecting commerce' would succeed in limiting its reach adequately." [FN78] Finally, [FN79] the dissenters rejected the idea that the presence of congressional findings alone provided protection for the Hobbs Act. "The Supreme Court mentioned the absence of legislative findings in the Gun-Free School Zones Act. . . . But it did not promise that any such findings of 'substantial effect' would immunize legislation from judicial scrutiny." [FN80] Moreover, "Lopez tell[s] us that the Commerce Clause is not a political question wholly committed to congressional discretion and that although legislative findings are a useful prelude to a constitutional analysis, at some point constitutional doctrine must take over." [FN81]

Like the court in Brzonkala, the Hickman dissenters concluded with some reflection on constitutional first principles. For them, Lopez heralded an end to "fifty years of judicial deference committ[ing] to the political branches the power to define the limits of their power under the Commerce Clause." [FN82] Left to police itself, Congress has (perhaps not surprisingly) engaged in the federalization of crime that has "tax[ed] the institution of Article III courts." [FN83] "[R]eading (or not reading) the Commerce Clause to support without locatable limits federal jurisdictional overlap of . . . traditional state crimes inevitably breeds federalization--checked only by the self-restraint of Congress, here *385 conspicuously absent. That crime is a serious social concern does not mean that it is . . . a federal matter." [FN84]

B. Weak Lopez

If Brzonkala and Hickman are the foremost examples of a strong approach to Lopez--one that stresses not only its black-letter aspects but also a powerful commitment to enumerated powers doctrine and federalism--they are also comparatively rare examples. [FN85] Most federal courts, even when following Lopez doctrinal pronouncements, have adopted a far less aggressive tone.

For example, the Hickman opinion contained a second dissent from Judge DeMoss, who, while joining his colleagues in Judge Higginbotham's dissent, wrote to illustrate how the Hobbs Act might be interpreted so as to survive scrutiny. The legislative history of the Hobbs Act, according to Judge DeMoss, "is replete with evidence that Congress passed the statute to combat highway robberies by labor union members . . . . [N]othing in the legislative history of the Hobbs Act indicates that Congress was concerned with local robberies of retail establishments." [FN86] Interpreting the language of the statute in light of its legislative history, Judge DeMoss argued, "[I]t is clear . . . that 'commerce' refers to intercourse between the states . . . ."

Congress thus meant "commerce" in the ordinary sense, the flow of goods and people across state lines. It surely did not intend some metaphysical interpretation, where the taking of money from a cash register or attendant's purse becomes magically transformed into an economic event that bears on our national commerce. [FN87] *386 Another "weak Lopez" approach can be found in the Ninth Circuit case of United States v. Pappadopoulos. [FN88] In that case, the defendants were charged with conspiring to burn their house in order to defraud their insurance company. Though such a crime would normally be prosecuted under state arson laws, in this case the defendants were charged under the federal arson statute. [FN89] Unlike the Violence Against Women Act's civil remedy provision, this statute contains the requisite jurisdictional element: The property must be "used in" or "used . . . in any activity affecting" interstate commerce. The government proceeded on the theory that this element was present because the Pappadopoulos's home was connected to the natural gas network of Pacific Gas and Electric, and that some of the gas supplied through that network came from outside the state. Thus, by consuming out-of-state natural gas, the home was "used in" interstate commerce or, alternatively, was "used in an activity affecting interstate commerce." [FN90]

The Ninth Circuit disagreed. It rejected the government's argument that although the home's consumption of natural gas was trivial in relation to the interstate market, [FN91] such homes could be aggregated to produce the requisite substantial effect. As the court said:

Lopez makes it clear that the Wickard line of cases "may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government." . . . Like the statute at issue in Lopez . . . the conduct regulated by section 844(i)--arson--is not commercial or economic in nature.

. . . .

Lopez clearly holds that the connections to or effect on interstate commerce must be "substantial." The question is whether its analysis should be applied when the issue is how significant the contacts to interstate commerce must be in individual cases in order to assure the constitutionality of a *387 statute that relies on a jurisdictional element. We hold that it does. We conclude that . . . where Congress seeks to regulate a purely intrastate noncommercial activity that has traditionally been subject to exclusive regulation by state or local government, and where the connection of the regulated activity as a whole to interstate commerce is neither readily apparent nor illuminated by express congressional findings, the government must satisfy the jurisdictional requirement by pointing to a "substantial" effect on or connection to interstate commerce. [FN92]

Stressing the importance of the non-infinity principle, the court noted that the residence was private, and was not used for commercial activity. "If the Commerce Clause were extended to reach the activity that the government seeks to punish here, we would be 'hard-pressed to posit any activity by an individual that Congress is without power to regulate." ' [FN93]

In an appeal from another arson conviction, United States v. McGuire, [FN94] the Third Circuit also reversed the district court's decision as applied to the defendant, but again left the statute intact. The sole nexus between the pipe bombing incident with which the defendant was charged and interstate commerce was a single bottle of Tropicana orange juice that happened to be in the trunk of the intended victim's car when the pipe bomb exploded. [FN95] In an argument reminiscent of innumerable law school hypotheticals, the government tried to establish that because the juice had moved in interstate commerce and because the car was used in the operation of the intended victim's local catering business the business "affected commerce," and that such a de minimis connection was all that was required to sustain a prosecution.

The court rejected this line of reasoning by reference to the non-infinity principle. "[T]here is virtually nothing," the court observed, "that does not affect interstate commerce in some manner." [FN96]

Though certain conduct may appear to be the quintessence of local activity, if we "follow the money" the [sic] trail we will always disclose some effect on interstate and/or foreign commerce. . . . [D]riving a few blocks to pick up one's children (consumption of gasoline refined from foreign oil, and wear and tear on vehicle manufactured in another state or country) or eating dinner in front of one's own television set (consuming food and beverages from outside of state or country, as well as decisions on how to spend hundreds of millions of advertising *388 dollars), have an indirect effect on interstate, and often foreign commerce. Even such a seemingly parochial action as borrowing a cup of sugar from a neighbor can be viewed as part of the stream of commerce that extends to refineries overseas. [FN97] Were it to accept the government's argument, federal jurisdiction "could be stretched to include driving one's daughter to a neighbor's house to deliver a single box of Girl Scout cookies." [FN98] Lopez, the court thought, precluded such an interpretation. [FN99]

The result may look remarkably similar to the "strong Lopez" of Brzonkala, but in fact there are differences. Some are merely of tone: These opinions do not open with the same ringing declarations in favor of federalism and limited government as Brzonkala (and, for that matter, Lopez). They instead express more a tone of exasperation and resignation about the expansion of governmental power, but feel that Lopez has given them some opportunity (albeit a limited one) to stanch further the previously inexorable flow of the commerce power. Beyond that, however, these opinions contain numerous qualifiers. The Pappadopoulos case is, as the court says, a case of "simple state arson" that "should have been tried in state court." [FN100] The court also suggests that in other cases --*389 perhaps involving firearms or automobiles or commercial establishments--the outcome might be very different. [FN101]

C. "Simon Says" Lopez

Subsequent decisions bear this out. For example, while arson of a home does not pass muster under the Ninth Circuit's interpretation of Lopez, the Ninth Circuit has held that arson of a restaurant does because business property per se affects interstate commerce, thus abjuring the very individual and fact-specific jurisdictional inquiry that Lopez (and Brzonkala) say is necessary. The result is what one might call "Simon *390 Says" Lopez: As long as the proper magic words are used, congressional authority will be upheld, regardless of first principles. According to the Ninth Circuit:

In Lopez, the Supreme Court held that, to be regulated, intrastate economic or commercial activities must substantially affect interstate commerce in the aggregate, while non-economic or non-commercial activities must individually have a substantial effect on interstate commerce. Therefore, "even if a single instance of the regulated activity has only a trivial effect on commerce, if the class of activities regulated substantially affects commerce in the aggregate, then the conduct falls within Congress's commerce power." Moreover, all business property has a per se substantial effect on interstate commerce. [FN102] One could call this approach hypertechnical, except that doing so would suggest that the Ninth Circuit has gotten the technical aspects of Lopez--and Pappadopoulos--right. In fact, one might frame the question as whether arson is an economic activity. If it is, then all arson may be aggregated, á là Wickard, into a substantial effect on the national economy irrespective of any individual act's effect. But since arson is not an economic activity, as Pappadopoulos held, then no aggregation may take place at all. Rather, there must be an individualized finding that a particular act of arson in itself had a sufficiently substantial effect on interstate commerce. [FN103] The court avoids this step by conflating the test *391 appropriate for regulating economic activity with a substantial effect on commerce with the test for determining whether there is a substantial effect on commerce. [FN104]

If all business property has a per se substantial effect on interstate commerce, then Congress may regulate all business property. Such a holding violates the non-infinity principle. That is especially the case when one recognizes the blended uses that are becoming more common. Does a home containing a home office constitute business property? According to the Eleventh Circuit, no (as long as the computer is not connected to telephone lines, anyhow). [FN105] What if the computer is used to order books from Amazon.com and other interstate booksellers? Does that mean that Congress may regulate all homes so equipped?

This approach is a far cry from Brzonkala's (and Lopez's) statement of first principles. Yet it represents probably the most common response of federal courts to Lopez in actual cases, especially those that involve defendants trafficking in drugs, guns, or both. [FN106]

*392 III. Assessing the Lower Courts, Critiquing the Supreme Court

Looking merely at the results of such cases, one might be tempted to conclude that the lower courts are honeycombed with judges bent on allowing the government free rein in the regulation of all areas of citizens' lives, and who are executing a rear-guard action against the expansion of Lopez. [FN107] According to this view, the lower court bench is staffed with a "subtle corps of sappers and miners," to use Jefferson's phrase, [FN108] who stand as a barrier to the full realization of the majority's vision of a limited commerce power expressed in Lopez.

Ideological hostility may indeed account for the narrow reading given to Lopez by some federal judges. But even if such hostility is present, we think that its overall impact on recent lower courts decisions is slight. A more likely explanation is that the Lopez opinion itself is sufficiently ambiguous [FN109] that it can serve almost as a judicial Rorschach Test. How it is interpreted reveals much about the court applying it.

Strong Lopez judges see in Lopez a way to reclaim judicial authority over the structural constitution ceded in the post-1937 era. Their approval of a strong judicial role in this area might in turn explain their willingness to tease, from a close reading of Lopez, an outline for its prospective *393 application. Similarly, their belief that the "judicial repair to the sidelines" [FN110] in cases involving limits to governmental power has resulted in its unchecked expansion might explain a willingness to revisit even older statutes whose constitutionality, prior to Lopez, was regarded as well- established. [FN111]

Weak Lopez decisions, on the other hand, share the concern of strong Lopez judges that judicial deference to the elective branches might have proceeded too far, but--as the Lopez concurring opinion of Justices Kennedy and O'Connor suggests [FN112]--are less convinced that long-established interpretations of the Commerce Clause should be ripped up root-and-branch. They prefer to prune, to strike down individual applications of statutes, as opposed to upholding facial challenges to suspect statutes. [FN113] This approach also finds support in Chief Justice *394 Rehnquist's opinion; after all, Rehnquist left intact all of the significant post-1937 Commerce Clause case law. [FN114] Though the Lopez Court declined to expand Congress's commerce authority and claimed to be *395 marking the outer boundaries of congressional power, it is unclear, in light of Wickard and Perez, how much more the power needed to expand.

Simon Says Lopez opinions, too, share similar characteristics. First, they are much shorter than strong, or even weak, Lopez opinions, indicating a disinclination to mine Lopez for clues as to the opinion's future implications. Second, the authors of Simon Says Lopez opinions tend to treat Lopez not as merely the first of a number of decisions evincing a renewed willingness to police the bounds of federalism, [FN115] but as a sui generis decision restricted to the peculiarities of the Gun Free School Zones Act. [FN116] Further, many of the Simon Says Lopez opinions uphold older statutes whose constitutionality had been established prior to the Lopez decision. [FN117] Without more guidance from the Supreme Court, which should be forthcoming this Term, these courts seem unwilling--some of them explicitly so--to carry the Supreme Court's water for it. [FN118] *396 Finally, many of the Lopez challenges involve unsavory criminal defendants--felons challenging firearms convictions, [FN119] militant antiabortion activists, [FN120] and persons convicted of domestic violence, [FN121] as well as an assortment of arsonists, thieves, gamblers, and alleged members of organized crime. [FN122] Courts seem unwilling to allow those persons to convert Lopez into a "Get Out of Jail Free" Card, unless the Supreme Court requires them to do so. Judging from the fact that until this Term, the Supreme Court denied certiorari [FN123] in cases that would have clarified the scope of Lopez, the Justices did not seem to want this either. [FN124]

*397 Simon Says Lopez decisions provide a background for two very different, though not necessarily entirely inconsistent, stories. One story-- not very flattering to court of appeals judges--is that of an ossified intermediate bench in the throes of "judicial sclerosis," unable or unwilling to apply Supreme Court decisions that depart too sharply from business as usual. This story seems particularly compelling in the context of the drug and firearms cases, where the courts' impatience with constitutional arguments that might keep unpopular offenders out of jail is palpable, [FN125] and where Lopez issues are dismissed in terse paragraphs containing little or no analysis. [FN126]

But there is another story, too; this one is not very flattering to the Supreme Court. The view of appellate judging provided in most law school classes is a fairly simple one: Higher courts select principles, which lower courts then apply faithfully. [FN127] As any lawyer with even a modicum of practice experience can attest, the situation in the real world is more complex. For example, that the lower courts are supposed to apply principles articulated by higher courts presumes that the principles of the upper courts are easily identifiable and readily available for application by the lower courts. [FN128] But as the multiplicity of readings to which Lopez has been subject suggests, higher courts (in this case, the United States Supreme Court) do not always fulfill this responsibility.

Sometimes the Court's affinity for articulating top-down principles for uniform application has made "activist" decisions like Brown v. Board of Education, Roe v. Wade, and Miranda v. Arizona the target of criticism. Recently, scholars like Professor Cass Sunstein have encouraged the Court to write more modest opinions that eschew this "grand style" in favor of narrower, "incompletely theorized" statements *398 that stick closely to the facts of particular cases. [FN129] But as Jeff Rosen points out in a cogent critique of Professor Sunstein's thesis, the failure to explain decisions adequately can result in cases that stand for no more than their result. [FN130]

Rosen questions whether "this aversion to deep reason-giving [is] something to be celebrated, . . . or . . . a form of judicial self-aggrandizement masquerading as modesty?" [FN131] While recognizing that discretion is the better part of valor when deciding whether a particular constitutional issue is to be engaged at all, Rosen remarks that "to extend Bickel's notion of 'passive virtues' to a judicial opinion itself, refusing to say what [the Justices] think about a constitutional issue after they have promised to do so, is a peculiarly coy vision of the judicial role. It seems not so much passive as passive-aggressive." [FN132]

While such opinions make it difficult for the public or for elected officials to ascertain what the Court is up to, the real problem comes when lower courts attempt to apply them beyond the narrow facts of the Supreme Court's immediate controversy. "[F]aced with a narrow, shallow Supreme Court decision of the kind that Sunstein praises, [lower courts] may literally be at a loss about what the opinion means. This is more likely to promote chaos than reasoned deliberation." [FN133]

Though he might have used Lopez as an example, Rosen recalls the problems that the Court faced following its decision in Brown, where it declared school segregation unconstitutional without indicating the real reason, "and without saying anything about the constitutionality of different forms of state- sponsored segregation (on public transportation for example)": [FN134]

*399 The result of the Court's refusal to explain whether its reasoning extended beyond schools was to create confusion in the lower courts and legislatures, which, in the years following Brown, were deeply divided about the constitutionality of segregation in public swimming pools, golf courses, and other public facilities. In a series of terse and unanimous opinions, unaccompanied by any reasons at all, the Supreme Court extended the narrow holding of Brown, striking down each of these further examples of public segregation one by one, but again without articulating a clear principle to justify its decisions. [FN135] If one of the criteria used by the Court to select which cases to hear (a number that seems to dwindle every year) is disagreement among the circuits, Rosen argues, it is simply "inefficient and even irresponsible for the justices to refuse to lay down clear rules in the few cases in which they have promised to do so." [FN136] The result is an exacerbation of confusion among lower courts "in precisely those cases where the relevant actors are pleading for a clear resolution," forcing a "national exercise in clairvoyance, as lower courts, citizens, and legislatures spend great energy and expense trying to puzzle through problems that the Supreme Court . . . refused to resolve." [FN137]

IV. Conclusion

In Lopez, the Supreme Court struck a bold and telling blow for limited government and a return to the first principles of the Constitution. Or it didn't. Or maybe it did, but it just did not say it very well. After all, it does not matter how loudly you speak if you mumble when you do so.

How will we know which? The cynical--and, perhaps sadly, correct--answer in this case is, we will know when the Supreme Court tells us. [FN138] Given the Court's decision this Term to resolve the split in the *400 circuits over the Violence Against Women Act occasioned by the Brzonkala decision, as well as the scope of the federal arson statute, perhaps Supreme Court resolution is not too far away. [FN139] If so, then the Court might do well to reflect on the divergent opinions that its initial decision produced, canvassed here, and dispel the remaining confusion. [FN140] If the Court intended Lopez only to mark an outer limit, and perhaps put Congress on notice that it should stop confusing the Commerce Clause with a source of general police power, then it should make that explicit. [FN141] After all, even that limited holding nevertheless establishes an important constitutional principle, left in some doubt after Wickard, McClung, and Perez. Such a holding may encourage Congress to take a hard second look at legislation it considers, lest it again suffer the ignominy of judicial invalidation for exceeding what are already generous boundaries.

If, on the other hand, the Court intends review of congressional exercises of power to be more rigorous and searching, then that, too, should be made clear--both to the government and to the lower courts. Likewise, the dissenters in Lopez (and the government when it argues in favor of congressional statutes) ought to make it clear that their interpretations of the Commerce Clause would convert it into a general police power, and that the judiciary should again "repair to the sidelines" *401 and leave Congress and the President to place limits on the exercise of the commerce power. [FN142]

Cynicism, however, often serves as a mask for optimism, and that might be the case here as well. For if the Court still has much to say about Lopez, then the lower courts' reactions to Lopez might represent a sort of institutional conservatism in the face of an ambiguous opinion with an uncertain future, rather than the product of lazy and hidebound judging. If one assumes, as most judges probably do, that legal (especially constitutional) doctrine should change course gradually, after the fashion of an ocean liner, rather than abruptly after the fashion of a jet-ski, then this may not be so bad, especially if there is no consensus about what, if anything, changed after the Supreme Court's decision, and only ambiguous signals, one way or the other, from the Court.

Whether it is good or bad, in fact, may depend somewhat on definitions. If the role of courts, and judicial doctrine, is primarily to do justice to individuals, then the widespread reluctance--or resistance--on the part of appellate courts to apply Lopez vigorously is clearly bad. Individuals are being denied the rule of law, and being subjected instead to unprincipled judicial resolutions made more on account of judicial sentiments and fear of change than any principle of law. [FN143] Once the Supreme Court has spoken, after all, the lower courts are supposed to fall into line.

On the other hand, if the courts are viewed as a system, then reluctance to change course too rapidly may be, in some ways, a valuable thing. [FN144] The Supreme Court, after all, is a human institution subject to changes in attitude and outcome and the chaotic behavior displayed by multimember groups-- in a word, a committee. [FN145] With this in mind, a bit of damping in the system does not seem so bad.

Certainly the appellate courts have shown reluctance to make sweeping change before: in the aftermath of the Brown decision, for *402 example. [FN146] Yet with repeated declarations by the Supreme Court that it really did mean what it said, they fell ultimately into line. The same is likely to be the case here, assuming that the Court holds to the reasoning announced in Lopez. In fact, one might argue that the additional post-Lopez cases like Seminole Tribe, City of Boerne v. Flores, Saenz v. Roe, Printz v. United States, and so on should have put lower courts on notice that Lopez was about first principles, rather than about Simon Says formalities. [FN147]

Of course, if the Supreme Court does not hold to the reasoning in Lopez, then this appellate footdragging will turn out to be a good thing, avoiding much ultimately unnecessary confusion and disruption in the day-to-day business of judging. Perhaps such "play in the joints" thus performs a valuable function. In future decisions, however, the Court should take care that the "play" in its opinions not render them "Play-Doh" in the hands of lower court judges, whether these judges are motivated by mere institutional conservatism or by ideological hostility.

[FNa1]. Professor of Law, University of Tennessee. J.D. Yale Law School, 1985; B.A. University of Tennessee, 1982. Thanks to Carol Guthrie and Brent Snyder for their excellent research assistance.

[FNaa1]. Assistant Professor of Law, Southern Illinois University. LL.M. Yale Law School, 1999; J.D. University of Tennessee, 1995; B.A. University of the South, 1992. Thanks to Jen Gill for her excellent assistance. The authors want to thank Laurence Tribe for his words of encouragement.

[FN1]. Alexis De Toqueville, Democracy in America 267 (George Lawrence trans. & J.P. Meyer ed., 1969). But see 3 Sir William Blackstone, Commentaries on the Laws of England ch. XXII, at 327-28 (Edward Christian ed., 1825) (1765):

The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration.


[In the civil law system, on the other hand,] the idle comments, obscure glosses, and jarring interpretations grafted thereupon by the learned jurists, ... which are mere private opinions of scholastic doctors (and not like our books of reports, judicial determinations of the court) are all of authority sufficient to be vouched and relied on: which must needs breed great distraction and confusion in their tribunals.

Thanks to Nick McCall for the Toqueville quotation, and Eugene Volokh for the rejoinder.

[FN2]. 514 U.S. 549 (1995). See generally Symposium, The New Federalism after United States v. Lopez, 46 Case W. Res. L. Rev. 633 (1996); Symposium, Reflections on United States v. Lopez, 94 Mich. L. Rev. 533 (1995).

[FN3]. See, e.g., Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 Mich. L. Rev. 752, 752 (1995) (calling Lopez "a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers"); Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167, 168 (1996) (calling Lopez an "about-face"); see also Deborah Jones Merritt, Commerce!, 94 Mich. L. Rev. 674, 676 (1995) ("Lopez ... emerges as an important, but limited, rein on congressional power.").

[FN4]. See, e.g., Judge Louis H. Pollak, Foreword, 94 Mich. L. Rev. 533, 541, 553 (1995) (asking whether "the trial and tribulations, and the ultimate deliverance, of Alfonso Lopez, Jr., [are] likely to prove ... 'epochal' [o]r merely anecdotal"; concluding that Lopez is not epochal and that "there is less in Lopez than meets the eye"); Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 Mich. L. Rev. 554, 554 (1995) (opining that "Lopez is [un]likely to inaugurate a major change in the Court's inclination to uphold federal regulation."). Others were more hostile, describing it as a "misstep," Lopez, 514 U.S. at 614 (Souter, J., dissenting), or criticizing it as a return to the "bad old days" of the pre-New Deal Court, see Anthony Lewis, United States vs. Lopez: Paralyzing the Federal Government, News & Rec. (Greensboro, N.C.), May 1, 1995, at A7. See also Anthony Lewis, Challenge to Brady Law is Biggest Case Before High Court, St. Louis Post-Dispatch, Jan. 19, 1997, at 3B (describing the Court's renewed concern with limits of federalism as "empty formalism").

[FN5]. See, e.g., Printz v. United States, 521 U.S. 898 (1997) (holding that Congress may not require state officials to implement portions of federal gun control legislation); City of Boerne v. Flores, 521 U.S. 507 (1997) (limiting congressional power to define the substantive content of the Fourteenth Amendment through its enforcement power granted by section 5 of that amendment); Seminole Tribe v. Florida, 517 U.S. 44 (1996) (stating that Congress's commerce power is insufficient to waive states' sovereign immunity); see also Alden v. Maine, 527 U.S. 706 (1999) (extending Seminole Tribe to lawsuits against states in state court); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (holding that congressional power under section 5 of the Fourteenth Amendment insufficient to waive state sovereign immunity in patent and trademark actions brought against states in federal court).

[FN6]. [T]he Supreme Court is only one relatively small aspect of our overall judicial system. If one stays only at the federal level (and avoids specialized courts like the Tax Court, the United States Court of Appeals for the Federal Circuit Court, and the like), we see twelve circuit courts and ninety district courts. Not only are they far more numerous than the Supreme Court, they also, as a matter of empirical fact, play a far more important role in the actual lives of citizens than does the Supreme Court. The behavior of the roughly 100 circuit judges and 500 district judges is, for most citizens most of the time, far more likely to count as "the law" than the pronouncements of the nine denizens of the Supreme Court ensconced--for most Americans literally and for almost all metaphorically--at least a thousand miles away in a marble palace (or tomb inhabited by the living dead) in Washington, D.C.

Sanford Levinson, On Positivism and Potted Plants: "Inferior" Judges and the Task of Constitutional Interpretation, 25 Conn. L. Rev. 843, 844 (1993); see also Walter F. Murphy, Elements of Judicial Strategy 25 (1964) (noting that few cases make it to the Supreme Court and that lower federal courts and state courts are responsible for the bulk of the law).

[FN7]. See 18 U.S.C. 922(q)(1)(A) (1994).

[FN8]. Jeffrey Rosen, Fed Up, New Republic, May 22, 1995, at 13.

[FN9]. See United States v. Lopez, 514 U.S. 549, 551 (1995).

[FN10]. See United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993).

[FN11]. See infra Part I.B.

[FN12]. See id. at 1346.

[FN13]. See Lopez, 514 U.S. at 563-64.

[FN14]. Id. at 564.

[FN15]. See id. at 567.

[FN16]. See id. at 558-59.

[FN17]. Id. at 558.

[FN18]. Id.

[FN19]. Id. at 559.

[FN20]. Id. at 561.

[FN21]. See id.

[FN22]. Id.

[FN23]. See id. at 564.

[FN24]. Id. at 567.

[FN25]. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 310-11 (1981) (Rehnquist, J., concurring). The Solicitor General's weak responses to questions from Justice Scalia during the Lopez oral argument demonstrate that the government had no satisfactory answer to the concern that accepting its approach would effectively obliterate any restraints on congressional power. See Oral Argument Transcript, Lopez (No. 93-1260), 1994 WL 758950, at *15-16 (Nov. 8, 1994):

QUESTION: General Days, I think it's well-established that a factor in both the education of children and in the law-abiding nature of children, a major factor is the stability of families. I suppose, under your reasoning, Congress could enact a Federal domestic relations law providing a Federal marriage, Federal divorce procedures, and what-not. I mean, there's nothing that affects levels of crime and levels of education as much as that. Why not?

GENERAL DAYS: Justice Scalia, Congress has legislated, for example, with respect to problems of --

QUESTION: Domestic violence, I'm aware.

GENERAL DAYS:--domestic violence, or the disappearance of children --

QUESTION: That doesn't --

GENERAL DAYS:--or interstate divorce problems, so it's not that [C]ongress hasn't dealt with those issues, but I think we would look to the --

QUESTION: The question is whether it has dealt with them constitutionally.


GENERAL DAYS: Justice Scalia, that is really your department, but let me say that --


GENERAL DAYS: That one would look to --

QUESTION: I'm not sure what your answer is. Is it--would a Federal marriage and divorce law be okay?

GENERAL DAYS: The answer is that one would have to look to the Constitution itself, and try to identify where there are any limitations --

As Monica Lewinsky might say, "Well, duh." But methodology was not the problem; the problem was that the government could not seem to find or articulate any such limits under its reading of the Constitution and the Commerce Clause.

[FN26]. Lopez, 514 U.S. at 623 (Breyer, J., dissenting) (citations omitted).

[FN27]. Id. at 624.

[FN28]. See id. at 631.

[FN29]. See Regan, supra note 4, at 555 ("I am inclined to think the result in Lopez is correct ... [but] the opinion of the Court is unsatisfactory."). For a thoughtful discussion of Lopez and its implications, see 1 Laurence H. Tribe, American Constitutional Law 5-4, 5-5 (3d ed. 2000).

[FN30]. 317 U.S. 111 (1942).

[FN31]. See Lopez, 514 U.S. at 560 (describing Wickard as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity").

[FN32]. 379 U.S. 294 (1964).

[FN33]. 402 U.S. 146 (1971).

[FN34]. Professor Merritt argues that "[b]lindly transferring the aggregation principle from Wickard to other contexts distorts the meaning of Wickard and suggests that the decision is much broader than it was intended." Merritt, supra note 3, at 749. Even one of the architects of the New Deal expansion of Commerce Clause authority expressed surprise in the 1970s at the lack of debate over the expansion of the commerce power involved in the federalization of crime, though he saw "no cause for alarm" in such expansion. See Robert L. Stern, The Commerce Clause Revisited--The Federalization of Intrastate Crime, 15 Ariz. L. Rev. 271, 284-85 (1973).

[FN35]. Justices Kennedy and O'Connor seemed particularly anxious in their concurrence to stress that the holdings in these cases were not called into question. See Lopez, 514 U.S. at 568 (Kennedy, J., concurring) (counseling "great restraint" before holding that the Commerce Clause provides insufficient power to support a law of Congress); id. at 573-74 (Kennedy, J., concurring) (concluding a survey of the Court's Commerce Clause jurisprudence ending with the Perez case with the comment that "[t]hese and like authorities are within the fair ambit of the Court's practical conception of commercial regulation and are not called in question by our decision today"; emphasizing stare decisis interest in preserving older cases).

[FN36]. See id. at 552-53.

[FN37]. Perez, 402 U.S. at 147 n.1.

[FN38]. See Katzenbach v. McClung, 379 U.S. 294, 304-05 (1964). Professor Regan argues that the arguments made in McClung "represent the final corruption of Commerce Clause doctrine." Regan, supra note 4, at 595.

[FN39]. See Lopez, 514 U.S. at 560 ("Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained. Even Wickard ... involved economic activity in a way that the possession of a gun in a school zone does not." (emphasis added)); id. at 561 (noting that the statute "is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms.... It cannot ... be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce."); id. at 566 ("Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty."); id. at 567 ("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.").

[FN40]. See, e.g., United States v. Threadgill, 172 F.3d 357, 372-73 (5th Cir. 1999) (distinguishing Lopez's regulation of non-commercial activity and 18 U.S.C. 1955); United States v. Abels, 167 F.3d 1021, 1027 (6th Cir. 1999) (stating that Lopez is inapplicable to 18 U.S.C. 1955, in part, because statute in question is "commercial," prohibiting as it does the maintenance of an illegal gambling business); United States v. Serang, 156 F.3d 910, 913 (9th Cir. 1998) ("[A]ll business property has a per se substantial effect on interstate commerce."); United States v. Zizzo, 120 F.3d 1338, 1350 (7th Cir. 1997) (stating that Lopez is inapplicable to 18 U.S.C. 1955; latter "prohibits illegal gambling businesses"); United States v. Farmer, 73 F.3d 836, 843 (8th Cir. 1996) (holding Lopez inapplicable to cases involving commercial establishments); United States v. Ellerman, 989 F. Supp. 1395, 1397 (D. Utah 1998) (stating that the Gun Free School Zones Act was held unconstitutional, in part, because it involved non-commercial activity).

[FN41]. See David B. Kopel & Glenn H. Reynolds, Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 Conn. L. Rev. 59, 69 (1997); infra notes 50-51, 96 and accompanying text.

[FN42]. See 514 U.S. at 552 ("The Constitution creates a Federal Government of enumerated powers."); id. at 556-57 & n.2 ("[E]ven these modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits."); id. at 564 (criticizing the government's argument in support of the statute on grounds that "it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."); id. at 566 ("[S]o long as Congress's authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender 'legal uncertainty.' ... The Constitution mandates this uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation."); id. at 567 ("To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.... To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated ...."); see also id. at 564, 565 (criticizing Justice Breyer's dissent for being "unable to identify any activity that the States may regulate but Congress may not"; Justice Breyer's suggested limitations "when viewed in light of the dissent's expansive analysis, are devoid of substance"); id. at 577 (Kennedy, J., concurring) ("Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.").

[FN43]. See id. at 562.

[FN44]. Id. at 563.

[FN45]. Id. at 557 & n.2 (Rehnquist, J., citing Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 311 (1981) (Rehnquist, J., concurring in judgment); Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241, 273 (1964)); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring)). In Hodel, Chief Justice Rehnquist wrote that "simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so." Hodel, 452 U.S. at 311 (Rehnquist, J., concurring in judgment). Justice Black, concurring in Heart of Atlanta, wrote that the question of "whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress ... is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court." Heart of Atlanta, 379 U.S. at 273 (Black, J., concurring).

[FN46]. See, e.g., United States v. Lee, 173 F.3d 809, 811 (11th Cir. 1999) (per curiam) ("[I]f Congress, or a committee thereof, makes legislative findings that a statute regulates activities with a substantial effect on [[interstate] commerce, a court may not override those findings unless they lack a rational basis.").

[FN47]. See infra notes 48-137 and accompanying text. Were we not "lover[s] of mercy," to quote Charles Black, we would have discussed every single court case applying Lopez since its decision. Charles L. Black, Jr., Structure and Relationship in Constitutional Law 20 (Ox Bow ed., 1985) (1969). We chose instead to discuss some representative approaches to Lopez with citations to recent cases in the footnotes. For more citations see 1 Tribe, supra note 29, 5-4 n.50.

[FN48]. John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 176 (1998).

[FN49]. See United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring) ("In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.").

[FN50]. See supra note 41 and accompanying text.

[FN51]. See infra notes 85-101 and accompanying text.

[FN52]. We assume for purposes of this Article that lower courts should attempt to interpret binding Supreme Court precedent and apply it faithfully to cases that come before it. However, we note that this traditional view of lower court adjudication has been subjected to detailed inquiry and thoughtful questioning. See, e.g., Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1 (1994); Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817 (1994).

[FN53]. 169 F.3d 820 (4th Cir. 1999), cert. granted sub. nom. United States v. Morrison, 120 S. Ct. 11 (1999). The Supreme Court granted certiorari after this Article was submitted for publication.

[FN54]. Pub. L. No. 103-322, 108 Stat. 1941 (codified at 42 U.S.C. 13981 (1994)).

[FN55]. Brzonkala, 169 F.3d at 825-26 (citations omitted).

[FN56]. Id. at 826 (citations omitted).

[FN57]. Id. at 831 (citations omitted).

[FN58]. Id. at 831-32 (citations omitted).

[FN59]. Id. at 837. The Fourth Circuit went on to say,

A contrary holding would violate the "first principles" of a Constitution that establishes a federal government of enumerated powers, ... principles that the Lopez Court believed so important to its constitutional analysis that it both began and ended its opinion with a full discussion of them, ... and that even the government is forced to concede lie at the heart of the Court's reasoning in Lopez .... Lopez therefore, is emphatic that the scope of the interstate commerce power "must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."


[FN60]. 18 U.S.C. 1951 (1994). The Hobbs Act states that

[w]hosoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

Id. 1951(a).

[FN61]. See United States v. Hickman, 179 F.3d 230, 231 (5th Cir. 1999) (en banc) (Higginbotham, J., dissenting).

[FN62]. Id.

[FN63]. Id.

[FN64]. Id. at 232.

[FN65]. Id.

[FN66]. Id.

[FN67]. Id. at 233.

[FN68]. Id.

[FN69]. Id.

[FN70]. Id. at 235.

[FN71]. Id. at 237.

[FN72]. Id.

[FN73]. Id. at 237-38.

[FN74]. See id. at 238.

[FN75]. Id.

[FN76]. Id. at 239.

[FN77]. Id. at 240-41.

[FN78]. Id. at 241 (emphasis in original).

[FN79]. The dissenters quickly rejected arguments that the Hobbs Act could be construed as either a Category One or Category Two regulation. See id. at 241-42. Category Two, in the opinion of Judge Higginbotham, "encompass[ed] only vehicles that move or could move in interstate commerce and people or goods traveling in commerce." Id. at 241. Category One, moreover, cannot mean that items "in interstate commerce" could constitute a sufficient nexus for regulation; if it was, "Congress could regulate the activities, say, of people wearing clothes purchased in interstate commerce." Id. at 241-42.

[FN80]. Id. at 242.

[FN81]. Id.

[FN82]. Id.

[FN83]. Id.

[FN84]. Id. at 243; see also United States v. Wall, 92 F.3d 1444, 1456-85 (6th Cir. 1996) (Boggs, J., concurring in part and dissenting in part) (arguing that Lopez mandates that 18 U.S.C. 1955, which prohibits the operation of an illegal gambling business, but contains no jurisdictional nexus requirement and no findings of "substantial effect" on interstate commerce, be found unconstitutional).

[FN85]. Brzonkala, in fact, is the only Court of Appeals case to date to hold a federal statute unconstitutional based on a Lopez challenge. The district courts have been somewhat more active in expanding the holding of Lopez, particularly with regard to newer statutes. See, e.g., Bergeron v. Bergeron, 48 F. Supp. 2d 628, 638 (M.D. La. 1999) (striking down portions of the federal Violence Against Women Act); Hoffman v. Hunt, 923 F. Supp. 791, 807 (W.D.N.C. 1996) (striking down the federal Freedom of Access to Clinic Entrances Act), rev'd, 126 F.3d 575 (4th Cir. 1997); United States v. Parker, 911 F. Supp. 830, 834 (E.D. Pa. 1995) (holding that the federal Child Support Recovery Act, 18 U.S.C. 228, was unconstitutional), rev'd, 108 F.3d 28 (3d Cir. 1997).

[FN86]. Hickman, 179 F.3d at 244 (DeMoss, J., dissenting).

[FN87]. Id.

[FN88]. 64 F.3d 522 (9th Cir. 1995).

[FN89]. See 18 U.S.C. 844(i) (1994), which provides:

[w]hoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both ....

[FN90]. See Pappadopoulos, 64 F.3d at 525.

[FN91]. Though perhaps less trivial than most, as the Pappadopoulos's home was over 10,000 square feet in size. See id. at 524.

[FN92]. Id. at 526-27 (citations omitted).

[FN93]. Id. at 527.

[FN94]. 178 F.3d 203, 205 (3d Cir. 1999).

[FN95]. See id. at 206.

[FN96]. Id. at 209.

[FN97]. Id. at 209-10.

[FN98]. Id. at 210.

[FN99]. See id.; see also id. at 211-12:

We think that a conviction under 18 U.S.C. 844(i) must rest upon more than the dubious interstate commerce nexus of our hypothetical cup of sugar, or the ephemeral nexus of the government's carton of orange juice. "[I]n view of our complex society," supporting this conviction by so slender a thread as the government presented here would be tantamount to removing the jurisdictional requirement from 844(i). We do not believe that the Supreme Court required Congress to include a jurisdictional element under Lopez only to have courts interpret the resulting statutes in such a way as to remove it.

[FN100]. 64 F.3d 522, 528 (9th Cir. 1995); see also United States v. Johnson, 194 F.3d 657, 662 (5th Cir. 1999) (church's membership in a statewide church conference to which congregation members contributed money, forwarding of money from state church conference to United Methodist Church's national office, nationwide distribution of funds from national office to support various church-related activities, and out-of-state insurer's payment on policy of burned church formed insufficient factual basis for acceptance of guilty plea to federal crime of arson under 844(i)). In a special concurring opinion, the other two judges on the panel would have found that Congress cannot regulate by aggregating a group of distinct, discrete acts (like arson) with no other connection among them. See id. at 665-66 (Garwood, J., concurring).

See also United States v. Rodia, 194 F.3d 465 (3d Cir. 1999) (upholding federal statute criminalizing intrastate, noncommercial possession of child pornography). The defendant in Rodia challenged the constitutionality of 18 U.S.C. 2252(a)(4)(B), which prohibits the possession of child pornography that has not, itself, moved in interstate commerce so long as any of the materials (like film) used to produce it has. Despite the presence of this jurisdictional hook, the Third Circuit found that the hook alone was insufficient to uphold the statute; but while "not without misgivings in view of the breadth" of the statute, the court nevertheless upheld it, after satisfying itself that Congress could have rationally concluded that mere intrastate possession of child pornography created demand that, in turn, substantially affected interstate commerce. Id. at 468.

"A jurisdictional element," the court held, "is only sufficient to ensure a statute's constitutionality when the element either limits the regulation to interstate activity or ensures that the intrastate activity to be regulated falls within one of the three categories of congressional power [set forth in Lopez]." Id. at 473. "As a practical matter," the court concluded, "the limiting jurisdictional factor is almost useless" since anything used to produce child pornography will, at some point, have traveled within interstate commerce. Id. "At all events," the court concluded, "it is at least doubtful ... that the jurisdictional element adequately performs the function of guaranteeing that the final product regulated substantially affects interstate commerce." Id; see also id. at 472 ("A hard and fast rule that the presence of a jurisdictional element [ [guarantees constitutionality] ignores the fact that ... the jurisdictional hook may be so attenuated as to fail to guarantee that the activity regulated has a substantial effect on interstate commerce.").

But the court then concluded that a rational Congress could have concluded, on the basis of information available in the record, that to combat the interstate traffic in child pornography, it had to ban purely intrastate possession. See id. at 475, 477. While the Third Circuit relied on the Supreme Court's reasoning in Wickard v. Filburn, 317 U.S. 111 (1942), it was careful to heed Lopez's teaching that the Wickard aggregation rationale cannot be used to create a de facto national police power. See id. at 476. The court then articulated a chain of causation that Congress could have used to arrive at the conclusion that it did, viz., that "the possession of 'home grown' pornography may well stimulate a further interest in pornography that immediately or eventually animates demand for interstate pornography." Id. at 477. The court also carefully noted the presence of two additional factors that militated against a finding of unconstitutionality: first, that child pornography has been an area of federal regulation for over twenty years; and second, that the ban on intrastate possession, which was a 1990 amendment designed to close what was seen as a loophole, "plays a critical role in maintaining the effectiveness of the overall statutory scheme, a factor that was absent in Lopez.'' Id. at 479.

Rodia is a careful and thoughtful application of Lopez, and it is a pity that more lower courts have not followed the Third Circuit's lead. It is also an example of why our characterization of certain decisions as "weak Lopez" decisions should not necessarily be understood as pejorative. If Rodia has one flaw, it is perhaps its willingness to hypothesize a chain of causation for Congress; not surprisingly, the court managed to come up with one that satisfied its criteria. See id. at 469 ("[W]e must ascertain whether Congress 'could rationally conclude that the regulated activity substantially affects interstate commerce" ' based on facts "known or facts that could reasonably be assumed ...."). Yet the Lopez Court's unwillingness to supply a winning rationale was what distinguished it from earlier Commerce Clause decisions. Cf. Perez v. United States, 402 U.S. 146 (1971).

[FN101]. See United States v. Pappadopoulos, 64 F.3d 522, 527-28 (9th Cir. 1995).

[FN102]. United States v. Serang, 156 F.3d 910, 913 (9th Cir. 1998) (citations omitted). For a similar example, compare Judge Higginbotham's dissent (or even Judge DeMoss's concurrence) in Hickman, see supra notes 62- 85 and accompanying text, with United States v. Jennings, 195 F.3d 795, 800 (5th Cir. 1999), where the Fifth Circuit, in sustaining a Hobbs Act conviction, interpreted Lopez to allow aggregation for acts that "are of a type that, repeated many times over, would have a 'substantial effect' on interstate commerce." Again, this would seem to permit regulation of any criminal activity, since it is difficult to imagine a situation in which repeat crimes did not have an effect on interstate commerce, in a general sense.

[FN103]. See supra notes 90, 92 and accompanying text. Another district court arson case assumed that the arson statute's inclusion of a jurisdictional nexus requirement precluded an inquiry whether the arson itself substantially affected interstate commerce. See United States v. Brown, 74 F. Supp. 2d 637, 644 (N.D. W. Va. 1998) ("Because 844(i) includes an express jurisdictional element, the constitutional threshold is satisfied, and the government need only prove a minimal nexus to commerce to meet the jurisdictional requirement in this case."). The arson at issue in Brown was of a private residence; the court concluded that the house's receipt of electricity and natural gas was sufficient to satisfy the jurisdictional requirement of 844(i). See id. The court's holding ignores the fact that the Lopez Court did not indicate that the mere existence of a jurisdictional nexus requirement would be sufficient to save a statute from invalidation, as well as the fact that to allow such meager evidence to satisfy the jurisdictional nexus requirement is in tension with the Court's articulation of what we here call the "non-infinity principle."

[FN104]. Cf. United States v. Jones, 178 F.3d 479, 480-81 (7th Cir. 1999) (Easterbrook, J.), cert. granted, 68 U.S.L.W. 3321, 3325 (U.S. Nov. 16, 1999) (No. 99-5739) (upholding federal arson conviction for destruction of private home; interstate nature of residential housing market, movement of construction materials and utilities across state lines, interstate nature of home financing, and insurance all sufficiently affected by arson to sustain statute); United States v. Rea, 169 F.3d 1111, 1113 (8th Cir. 1999) (upholding arson conviction for destruction of a church; court concluded that "the Church school's use of materials purchased in interstate commerce, coupled with its use of natural gas from an out-of-state source, satisfy the jurisdictional element of section 844(i)"). But see United States v. McGuire, 178 F.3d 203, 212 (3d Cir. 1999) (holding a single bottle of orange juice that moved in interstate commerce insufficient nexus to sustain a federal arson conviction for pipe bombing of private car occasionally used in local catering business). Certiorari in Jones was granted after this Article was submitted for publication.

[FN105]. See United States v. Denalli, 73 F.3d 328, 330-31 (11th Cir. 1996) ("Federle's computer was not linked to any Harris computer. It was not equipped with a modem. It had no link to interstate phone lines or other interstate connections. The memoranda were not incorporated by disks or other electronic means to any Harris computers. Federle would print the memoranda on his personal printer and physically carry them to employees at Harris."). What relevance the presence or absence of floppy disks has to interstate commerce is unclear.

[FN106]. See, e.g., United States v. Anderson, Nos. CRIM.95-40065-01-SA, Civ.98-3151-SAC, 1999 WL 477234, at *1(D. Kan. May 25, 1999)(observing that "federal courts have uniformly rejected [constitutional] challenges] to federal drug laws); Dover v. United States, No. CRIM.A.96-181-1, 1999 WL 239281, at *3 (E.D. Pa. Apr. 8, 1999) (upholding challenges to federal drug laws and laws prohibiting felons possessing firearms); United States v. Ayala, 47 F. Supp. 2d 196, 197 (D.P.R. 1999) (upholding federal drug trafficking laws against Commerce Clause challenge); Kuromiya v. United States, 37 F. Supp. 2d 717, 723-23 (E.D. Pa. 1999)(upholding federal Controlled Substances Act); see also Kopel & Reynolds, supra note 41, at 78-87 (discussing drug and gun cases).

[FN107]. See, e.g., Murphy, supra note 6, at 25-26 (describing ways in which lower courts hostile to a particular Supreme Court decision have sought to thwart its implementation). Murphy writes that

lower court judges have at times: (a) interpreted Supreme Court decisions, distinguishing or explaining the case before them so that if their own policy preferences did not prevail at least they were not snuffed out; (b) carried Supreme Court decisions to an extreme which made them absurd; (c) simply ignored--whether deliberately or through lack of time or information or through Freudian slips--contrary Supreme Court decisions; (d) invited a change by the Court itself or by other branches of government by sharply criticizing Supreme Court decisions in official opinions, at bar association meetings or judicial conferences, or before congressional committees.


[FN108]. Letter from Thomas Jefferson to Thomas Ritchie (Dec. 25, 1820), quoted in Dumas Malone, 6 Jefferson and His Time: The Sage of Monticello 356 (1981).

[FN109]. See supra notes 29-47 and accompanying text. Walter Murphy noted that

[e]ven when there is no desire to sabotage high policy, the frequent necessity to exercise discretion may have a thwarting effect similar to that of deliberate misunderstanding. Just as mixed problems of language and political compromise permit and sometimes force judges to make their own policy choices in interpreting statutes, semantic difficulties and opinion compromises within the Supreme Court often allow or require the exercise of lower court discretion. In addition, even where the Court has spoken precisely on general principles of law, the work of applying these principles to new and complex situations of muddled evidence and tangled pleadings may demand ingenuity, imagination, and the insertion of value preferences which may not conform to those of the Justices. Moreover, a lower court judge may think he perceives a change in Supreme Court doctrine and thus feel confronted with the choice of following the Court of yesterday or tomorrow.

Murphy, supra note 6, at 24.

[FN110]. United States v. Hickman, 179 F.3d 230, 242 (5th Cir. 1999) (Higginbotham, J., dissenting).

[FN111]. Strong Lopez judges seem to be unconsciously following the advice of a commentator in the early 1940s, who urged lower courts to take a more dynamic or "unrestrained" view of precedent in light of the Supreme Court's reorientation following the upheavals of the 1930s. See Note, The Attitude of Lower Courts to Changing Precedents, 50 Yale L.J. 1448, 1450 (1941). Realization of the Court's vision, it was noted, could only be effected if lower court judges adopted a "progressive view" and wrote opinions that "look [[ed] beyond what occurred yesterday to what ought to prevail today or, at least, to what will prevail tomorrow." Id.

The writer identified three types of cases which ought not serve to bind the lower courts. First, "cases whose foundations have been seriously shaken, even though they remain technically 'good law'." Id. Second, and "[s] imilar [to those cases] which hang in the air, with the ground cut from under" are "unoverruled decision[s], ravished by the passage of time and existing in a strange new environment." Id. at 1452. Finally, "a time- worn decision which has been chipped away by constant distinguishment and contradiction" was likewise "to be disparaged as precedent." Id. at 1453.

It would be somewhat ironic if strong Lopez courts adopted this unrestrained approach to precedent as a way to dismantle the New Deal edifice with which the writer was in obvious sympathy.

[FN112]. See Merritt, supra note 3, at 730 (characterizing the concurring opinion as "cautious in endorsing Lopez's result" and as having "made clear that they would not question any of the Court's prior decisions upholding commercial regulation.").

[FN113]. See, e.g., United States v. Garcia, 68 F. Supp. 2d 802, 813 (E.D. Mich. 1999) (finding jurisdictional facts alleged by government insufficient to withstand an as-applied challenge to a federal statute prohibiting violent crimes in aid of racketeering activity). The weaker reading of Lopez seems to appeal to many scholars who recognize the importance of the non-infinity principle, but are not ready to man the barricades with Justice Thomas. Professor Merritt, for example, finds much in Lopez to recommend it. It is a warning to Congress, which "has not proven particularly sensitive to the boundary between state and federal power, especially in enacting federal criminal laws." Merritt, supra note 3, at 691. Moreover, "Lopez has stimulated some lower courts to interpret statutory language more cautiously," with the result that future courts might "narrow slightly the scope of federal criminal statutes" as opposed to "wholesale invalidation of portions of the U.S. Code." Id. at 713. But, writes Merritt, "any extension of Lopez would face an uphill battle." Id. at 729.

Philip Frickey, likewise, sees an important, if limited, role for Lopez. See Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 Case W. Res. L. Rev. 695 (1995). Professor Frickey argues that Lopez may contain "a plausible technique to encourage appropriate congressional procedures and consideration" akin to the "somewhat more searching review of legislative processes and outcomes [applied] in noneconomic cases ... involv[ing] personal equality rather than the structures of federalism." Id. at 697- 98. This could occur, he argues, through the development of what he and William Eskridge elsewhere termed "'quasi-constitutional law'--the use of techniques to nullify the force of congressional action without outright declaring it unconstitutional." Id. at 720 (citing William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992)). Weak Lopez courts might do this by, for example, reading federal criminal law statutes narrowly, as Professor Merritt (and the cases) suggests. Lopez may also, according to Professor Frickey, provide the opportunity for the Court to apply to federalism controversies a standard of review akin to the Court's rational-basis-with-bite standard applied in cases like Romer v. Evans, 517 U.S. 620 (1996) (striking down Colorado constitutional amendment banning the passage of civil rights legislation benefiting homosexuals) and City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (striking down local requirement of special use permit for operation of home for the mentally handicapped). See Frickey, supra, at 725-29.

We would add that even a vigorous application of Lopez that circumscribed congressional power under the Commerce Clause would not necessarily result in "chaos" or in a declaration of "war on Congress" by lower courts. See Jeffrey Rosen, Hyperactive, New Republic, Jan. 31, 2000, at 20. The Commerce Clause is not the only conceivable basis for the passage of many congressional acts--it has simply been a convenient catch-all since 1937. There are seventeen other powers from which Congress may choose when it seeks to legislate, see U.S. Const. art. I, 8, cls. 1-2, 4-18, at least seven of which (besides the Commerce Clause) are commercial in some respect. See id. 8, cls. 1-2, 4-8 (enumerating the powers to lay and collect taxes, to pay debts and spend for the general welfare; borrow money; establish uniform bankruptcy laws; coin and fix the value of money; punish the counterfeiting of government securities; to establish post offices and post roads; and grant patents, respectively). Moreover, Congress may pass all laws "necessary and proper" for the execution of those powers. Id. 8, cl. 18. This gives Congress tremendous power, and might furnish an alternative constitutional source of power for some laws that it passed under the Commerce Clause.

To take but one example, the federal statute criminalizing loansharking in Perez v. United States, 402 U.S. 146 (1971), was passed not only under the Commerce Clause, but also under Congress's power to make uniform laws of bankruptcy. See Pub. L. No. 90-321, 201(a)(4), 82 Stat. 159 (1968) ( "Extortionate credit transactions directly impair ... and frustrate the purposes of the laws enacted by the Congress on the subject of bankruptcies."); see also id. 201(b) (setting forth congressional finding that the statute was "necessary and proper for the purpose of carrying into execution the powers of Congress ... to establish uniform and effective laws on the subject of bankruptcy"). Far from rewarding mere congressional cleverness, we think, like Professor Frickey, that this would further encourage deliberation and serious debate about the limits of federal power and its proper scope. The more legislation of dubious constitutionality is stopped in Congress, or at the President's desk, the less the Supreme Court is brought into conflict with those branches. One might conclude that the road to judicial restraint begins in both houses of Congress.

[FN114]. See Merritt, supra note 3, at 729 ("Chief Justice Rehnquist's opinion for the majority ... indicates little inclination to expand Lopez.").

[FN115]. See supra note 5.

[FN116]. See, e.g., United States v. Threadgill, 172 F.3d 357, 372 (5th Cir. 1999) (upholding challenge to 18 U.S.C. 1955; "Lopez is significant because it limits Congress's ability to regulate intrastate activities not related to the channels or instrumentalities of interstate commerce ... nothing in Lopez purports to announce any broader rule."); United States v. Vong, 171 F.3d 648, 654 (8th Cir. 1999) ("Lopez invalidated [the Gun Free School Zones Act] because the statute did not contain an express jurisdictional nexus to interstate commerce.").

[FN117]. See, e.g., United States v. Guerra, 164 F.3d 1358 (11th Cir. 1999) (upholding Hobbs Act, 18 U.S.C. 1951); United States v. Taylor, 176 F.3d 331 (6th Cir. 1999) (same); Vong, 171 F.3d at 654 (same); United States v. Luna, 165 F.3d 316 (5th Cir. 1999) (upholding federal law prohibiting knowing possession of a stolen firearm); United States v. Rea, 169 F.3d 1111, 1113 (8th Cir. 1999) (upholding federal arson statute); United States v. Jones, 178 F.3d 479, 481 (7th Cir. 1999) (same); United States v. Lee, 173 F.3d 809 (11th Cir. 1999) (per curiam) (upholding 18 U.S.C. 1955, prohibiting the operation of an "illegal gambling business"); Threadgill, 172 F.3d at 372 (same); United States v. Boyd, 149 F.3d 1062 (10th Cir. 1998) (same); United States v. Zizzo, 120 F.3d 1338 (7th Cir. 1997) (same); United States v. Wall, 92 F.3d 1444 (6th Cir. 1996) (same); see also United States v. Ables, 167 F.3d 1021 (6th Cir. 1999) (affirming the previous decision in Wall); United States v. Owens, 159 F.3d 221, 226 (6th Cir. 1998) (refusing to revisit Wall). For a list of citations of challenges to pre- and post-Lopez statutes, see Wall, 92 F.3d at 1483-84 & nn.57-62 (Boggs, J., dissenting).

[FN118]. See, e.g., Zizzo, 120 F.3d at 1350 (seeing "no reason to retreat from" a pre- Lopez determination that Congress had a rational basis for regulating intrastate illegal gambling businesses); Wall, 92 F.3d at 1451 (majority arguing that Lopez did not mandate invalidation of 18 U.S.C. 1955). The Wall court added, "Until the Supreme Court provides a clearer signal or cogent framework to handle this type of legislation [i.e., Category Three regulations], this court is content to heed the concurrence of two Justices that the history of Commerce Clause jurisprudence still 'counsels great restraint." ' Id. at 1452 (quoting United States v. Lopez, 514 U.S. 549, 568 (1995) (Kennedy, J., concurring)); see also, e.g., United States v. Hallmark Constr. Co., 14 F. Supp. 2d 1069, 1075 (N.D. Ill. 1998) (declining to reexamine decisions authorizing federal regulation of intrastate bodies of water frequented by migratory birds; "the court declines to anticipate a departure from what might still be correctly viewed as the law of this circuit"); Solid Waste Agency v. United States Army Corps of Eng'rs, 998 F. Supp. 946, 951-52 (N.D. Ill. 1998) ("[W]hile the Lopez decision may help to define the outer limits of federal commerce clause jurisdiction, it does not signal a retreat from the constitutional principles set forth in Wickard and its progeny."). Even strong Lopez cases express disappointment at the Supreme Court's lack of guidance. See Wall, 92 F.3d at 1456 (Boggs, J., dissenting) (lamenting the fact that Lopez's "analytical framework, particularly in relation to the sub-parts of the 'substantial effects' test, is not laid out as clearly ... as it might have been").

[FN119]. See United States v. Hall, 171 F.3d 1133, 1138 (8th Cir. 1999) (upholding federal statute prohibiting knowing possession of an unregistered silencer).

[FN120]. See, e.g., United States v. Arena, 180 F.3d 380 (2d Cir. 1999) (upholding Hobbs Act conviction of antiabortion activists for butyric acid attack on abortion clinic).

[FN121]. See Gillespie v. City of Indianapolis, 185 F.3d 693, 694 (7th Cir. 1999) (upholding constitutionality of federal law prohibiting the possession of a firearm "in or affecting" interstate commerce by persons convicted of domestic violence offenses).

[FN122]. See supra note 117 (listing cases upholding older statutes); see also Kopel & Reynolds, supra note 41, at 87-104 (canvassing decisions from the first two years following Lopez).

[FN123]. But see infra note 138 (cautioning against reading too much into certiorari denials).

[FN124]. The reluctance of courts to read Lopez broadly where doing so might increase the chances of criminal defendants escaping punishment is an excellent illustration of why members of Congress should not blithely ignore constitutional concerns when passing legislation, on the theory that the courts will correct their mistakes. Former Texas Congressman Bob Eckhardt made an impassioned plea to his House colleagues on this point while debating an omnibus crime bill in 1970. Arguing that constitutionally dubious provisions should be corrected before passage, he declared,

I cannot vote for this bill when it contains patently unconstitutional provisions because I swore when I was seated in this House to support and defend the Constitution. Every one of us is as much under that duty as is a member of the Supreme Court.


I have heard it argued on this floor that if a law is unconstitutional the Supreme Court will correct it, that we need not worry about it, that we should press as far as we can toward the general objective of the statute and let the Supreme Court worry about unconstitutionality. Let me tell you what is wrong with that argument:

There is a grave and important difference and result if the constitutional language is stricken at the court level, particularly in the field of criminal law. In order to correct the constitutional defect the court must take action in a specific case by reversing a conviction of a person who is at least potentially a dangerous criminal.

116 Cong. Rec. 35288 (1970) (remarks of Rep. Eckhardt). The flip side of Congressman Eckhardt's argument is that this reluctance to overturn a criminal sentence will work an injustice on criminal defendants, who have been convicted and sentenced under unconstitutional laws that courts were nevertheless reluctant to overturn. On the other hand, cases like Lopez and Flores could be understood in another light, as one of us has oh-so-sagely opined. See Ted Gest, Taking Congress Down Three Pegs, U.S. News & World Rep., July 7, 1997, at 33. ("'Congress is passing dumber laws,' says law Professor Glenn Reynolds of the University of Tennessee, 'and the court is less willing to give it the benefit of the doubt." ')

[FN125]. See, e.g., United States v. Wall, 92 F.3d 1444, 1448 (6th Cir. 1996) ("Criminal defendants across the country have exploited ... Lopez in hopes that the statutes underlying their convictions will ... be invalidated," but noting that "[m]ost courts have resisted urgings to extend Lopez beyond [[the Gun Free School Zones Act].").

[FN126]. See supra notes 103-104, 105. Don't take our word for it. On LEXIS or WESTLAW, simply search for references to Lopez in drug or firearms cases. The results will not suggest that courts of appeal judges are functioning as philosopher kings.

[FN127]. See, e.g., Walter F. Murphy, Lower Court Checks on Supreme Court Power, 53 Am. Pol. Sci. Rev. 1017, 1018 (1959) ("The Supreme Court typically formulates general policy. Lower courts apply that policy, and working in its interstices, inferior judges may materially modify the High Court's determinations.") (citations omitted).

[FN128]. As Walter Murphy has observed, "Even where a judge wishes to hew strictly to the High Court's line he may be left in doubt as to what was dogma and what was dicta" owing to the "multiple threads running through an official opinion which are inconsistent with the dominant pattern of thought." Id. at 1018 n.3.

[FN129]. See, e.g., Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 3-61 (1999); Cass R. Sunstein, Legal Reasoning and Political Conflict 35-62 (1996) (celebrating "incompletely theorized agreements"); Cass R. Sunstein, The Supreme Court 1995 Term--Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996). Professor Sunstein is writing in the vein of the late Alexander Bickel, whose book celebrated "passive virtues" at the Supreme Court's disposal to avoid making hasty or premature pronouncements of constitutional principles. See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 111-98 (2d ed. 1986) (1962). The judicial godfathers of the "legal process" tradition in which Bickel was steeped were Justices Brandeis and Frankfurter. See, e.g. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-48 (1936) (Brandeis, J., concurring)(articulating rules of judicial self-restraint developed by the Court to avoid resolution of constitutional questions). For misgivings about passive virtues, see Gerald Guinther, The Subtle Vices of the "Passive Virtues" --A comment on Principle and Expediency in Judicial Review, 64 Column L. Rev. 1 (1964).

[FN130]. See Jeffrey Rosen, The Age of Mixed Results, New Republic, June 28, 1999, at 43.

[FN131]. Id. at 44.

[FN132]. Id.

[FN133]. Id. at 45.

[FN134]. Id. at 44.

[FN135]. Id. at 45.

[FN136]. Id. at 46.

[FN137]. Id.

[FN138]. Some scholars have suggested that we got our answer in the weeks after Lopez, and that the Court signaled that it intended the impact of Lopez to be limited. In her commentary on Lopez, Professor Merritt notes that there was a flurry of denials of certiorari in the months after Lopez. See Merritt, supra note 3, at 735-38. "An activist court," she commented, "either reading Lopez broadly or anxious to narrow the Commerce Clause further, easily could have remanded ... cases for further consideration." Id. at 738. "The denial of these [cases]," she continued, "suggests that the Court was content to retreat from the Commerce Clause once Lopez had been decided." Id. On the other hand, one might point to other of the Court's decisions, like Boerne, Printz, Seminole Tribe, and its progeny, which suggest that the Court was indeed serious about reinvigorating principles of federalism. See supra note 5. Moreover, it would not necessarily be out of character for the Supreme Court to deny certiorari in cases that, in the opinion of the Justices, had not had sufficient time to "percolate" in the circuits or do not present the Court with as good a fact situation as other cases reported to be "in the pipeline" and due to "bubble up" sooner or later. See H.W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court 230-39 (1991). Moreover, Perry is cautious in answering the question whether a vote to grant certiorari is a vote on the merits of the underlying case. See id. at 268- 70.

[FN139]. As the Court attempts to clear up the confusion spawned by Lopez, the Justices might consider Walter Murphy's conditions of effective Supreme Court policy-making. See Murphy, supra note 6, at 93. First, make "an unambiguous commitment to a policy" through "an unambiguous commitment unambiguously stated." Id. Publicize the commitment so that "evasion or resistance [can] be discovered and thwarted." Id. Third, make sure that the judge or judges charged with the implementation of that policy "have the authority and power to do so" and be "safe from political reprisal[s]." Id. Finally, leave "no doubt about the Court's authority to ... formulate the general policy involved" by satisfying "all the technical requirements of jurisdiction and standing ...." Id.

[FN140]. The following comments have been influenced by Professor Joseph Goldstein's plea that the Supreme Court eschew ambiguity in its opinions and strive to write honestly and clearly, so that readers understand what an opinion means. See Joseph Goldstein, The Intelligible Constitution 111-33 (1992). Professor Goldstein's "canons of comprehensibility" instruct the Court to (i) use simple and precise language; (ii) write with clarity and candor; (iii) acknowledge and explain deliberate ambiguity; (iv) fairly characterize each others' opinions; and (v) incorporate important material into the text, rather than in footnotes. See id.

[FN141]. See Merritt, supra note 3, at 747 ("Numerous signs from the Supreme Court ... suggest that Lopez is at or near the high water mark, but future decisions are needed to confirm that.").

[FN142]. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 552-56 (1985) (suggesting the structural features of the Constitution receive adequate protection in the processes of the political branches themselves and that such protection is sufficient).

[FN143]. See supra note 124 (statements of Rep. Bob Eckhardt).

[FN144]. By this we do not mean to undervalue the importance of individual justice and the obvious rule of law. As Randy Barnett has forcefully pointed out, the legitimacy--and ultimately the stability--of our society depends greatly upon both. See Randy E. Barnett, Foreword: Guns, Militias, and Oklahoma City, 62 Tenn. L. Rev. 443 (1995).

[FN145]. See Glenn Harlan Reynolds, Chaos and the Court, 91 Colum. L. Rev. 110 (1991); 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) (arguing that relationship among Supreme Court, Congress, lower courts, and administrative agencies should be understood as complex and perhaps even chaotic). For a more traditional take on the committee-like aspects of the Court see Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 Yale L.J. 82 (1986).

[FN146]. See Frances Lee Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship, 74 Cornell L. Rev. 993, 1014-18 (1989).

[FN147]. In Boerne, for example, Justice Kennedy, who concurred in Lopez, wrote an opinion that contained very explicit guidelines--of the sort absent in Lopez--for Congress to consider when exercising its remedial powers under section 5 of the Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S. 507, 529-35 (1997).