United States v. Lopez

UNITED STATES v. LOPEZ Argued 26, 1995 No. 93-1260. April November 1994 Decided Court, in which O’Con- Rehnquist, opinion of the J.,C. delivered J., Kennedy, filed Kennedy, Thomas, JJ., joined. a Scalia, and nor, post, Thomas, O’Connor, J., joined, p. 568. concurring opinion, in which Stevens, J., p. post, and post, p. 584. J., concurring opinion, filed J., Breyer, filed dis- Souter, J., dissenting opinions. post, p. filed Ginsburg, JJ., joined, Souter, Stevens, and opinion, senting in which p. 615. post, Days General

Solicitor for the United the cause argued Attorney on the briefs were Assistant With him States. Deputy Wallace, Mal- General Harris, Solicitor General F De Pue. Stewart, L. and John colm John R. Carter With for the cause argued respondent. Henry Campbell, B. J. were Luden him brief Phillips, Bemporad, Adam D. Hirsh.* Carter G. and 16 Members urging were filed for *Briefs of amici curiae reversal Valentine, by Brady al. A C. William- et Debra the United States Senate Kassel; Fisher, son, by Lee Jeffrey for the State of Ohio et al. and J. Ohio, Ware, Attorney General, John Assistant Attorney P. General of Karas, Solicitor, Koppell, Simon B. G. Oliver Cordray, A State Richard Ruiz; York, for the Center to Attorney of New and Vanessa Pre- General Griswold, by Henigan, A Handgun et al. Erwin N. Dennis vent Violence Robinson; by Abrams; al. F. A for Children NOW et William and Gail Maines; by D. the Coalition for the Clarendon Foundation Ronald for Benner; by Brian Stop Gun et al. J. and the National School Violence Safety by Rapp. A Center et al. James urging were for the

Briefs of amici curiae affirmance filed National by Legislatures Barry et al. Richard Ruda and Conference State Friedman; Legal by and Pacific A for the Foundation Ronald Zumbrun Anthony T. Caso.

Briefs of were filed for Academics for the Second Amend- amici curiae Basial, Kates, Carter, Henry ment et al. Patrick J. Don B. Robert Holzer, Johnson, Olson, Joseph Polsby, J. E. Daniel Mark Nicholas Rice, Smith, Smith, Rudolph, George Charles E. B. Wallace Justin Robert Strickler, Warner, Weisberg; Texas Richard Robert for the Justice by Clayton Foundation Trotter. opinion delivered the Rehnquist

Chief Justice Court.

In the Gun-Free School Congress Zones Act of 1990, made any it a federal offense knowingly “for possess individual place a firearm at a the individual knows, or has reasonable cause to believe, is a school zone.” 18 U. S. C. (1988 V). §922(q)(1)(A) Supp. regulates ed., The Act neither activity a commercial requirement nor contains a that the possession any way be connected in to interstate commerce. authority “[t]o We hold the Act exceeds the regulate among Commerce . . . the several States . . . .” Const., I, §8, Art. cl. 3. respondent, 12th~grade 10,1992,

On March who was then a High Antonio, arrived at Edison in student, School San carrying handgun Texas, a concealed five bul .38-caliber and Acting upon anonymous tip, an lets. school authorities con respondent, carrying he the fronted who admitted that was weapon. charged He was arrested and under Texas law possession premises. Penal with firearm school See Tex. 46.03(a)(1) 1994). § (Supp. day, Ann. The next the state Code agents charges charged after re were dismissed federal by violating spondent complaint with the Gun-Free School (1988 § 922(q)(1)(A) ed., Act Zones of 1990. U. S. C. V).1 Supp. grand jury respondent

A indicted on one count of federal knowing possession in zone, of a firearm at a school violation §922(q). Respondent moved to his indict- of dismiss federal § ground 922(q) the unconstitutional as it is ment on “is beyond power Congress legislate control over our public motion, schools.” The District denied the con- Court § Congress’ cluding 922(q) “is a constitutional exercise of regulate affecting power well-defined activities “in, of, The zone” defined a grounds public, term “school or on the 1,000 or parochial private school” or “within distance of feet from the §921(a)(25). of a public, parochial private school.” grounds elementary, high commerce, middle and ‘business’ App. to Pet. for . . . affects interstate commerce.” schools jury Respondent right his to a trial. 55a. waived Cert. guilty trial, a bench found him The District conducted Court violating im- §922(q), and sentenced him to six months’ years’ supervised prisonment release. and two respondent challenged conviction based on appeal, his On § Congress’ power legislate 922(q) exceeded his claim that Appeals The Court of Clause. under the Commerce agreed respondent’s conviction. and reversed Fifth Circuit light it insufficient of what characterized as It held that, history, 922(q), legislative congressional findings “section beyond is invalid as terms, of its in the full reach Clause.” F. 3d under the Commerce importance issue, of the Because 1367-1368 (1994), and we now granted U. certiorari, 511 S. we affirm. principles. The creates Constitution with first

We start § powers. I,Art. enumerated See Federal Government pro- powers delegated “The wrote: As Madison James government are few and federal posed to the Constitution govern- State are to remain Those which defined. Federalist No. and indefinite.” numerous ments are 1961). (C. constitutionally This ed. pp. 292-293 Rossiter adopted by Framers authority the “was of mandated division Gregory liberties.” protection our fundamental of ensure (internal quotation Ashcroft, v. omitted). independence separation and as “Just marks serve Government the Federal branches the coordinate any one power in of excessive prevent accumulation power the States healthy between balance a branch, tyranny risk of reduce the will Federal Government Ibid. front.” abuse from either “[t]o power Congress the delegates to The Constitution among the foreign Nations, and regulate with Commerce I, §8, Indian Art. with the Tribes.” States, and several cl. 3. through The Court, Chief Justice Marshall, first de fined Congress’ the nature of power commerce in Gibbons (1824): Ogden, 1, 189-190 Wheat. undoubtedly,

“Commerce, is something traffic, but it is more: it is intercourse. It describes the commercial intercourse between parts nations, and nations, in regulated all its by branches, prescribing and is rules carrying on that intercourse.” power The power regulate; “is the is, prescribe the rule governed. which commerce is to be power, This congress, complete like all others vested in may itself, be exercised to its utmost extent, and acknowl- edges no prescribed limitations, other than are in the Id., constitution.” Court, however, Gibbons acknowledged power that limitations on the commerce are very language inherent of the Commerce Clause. say compre- “It is not intended to that these words completely that commerce, internal, hend which is which is carried on man or be- State, between and man a parts tween different of the same and which does State, not extend to or affect other States. Such unnecessary. certainly inconvenient, would be and is “Comprehensive ‘among’ may very is, as the word it properly be that commerce which concerns restricted to presupposes more than The enumeration States one.... something something, if enumerated; not and that we regard language, subject sentence, or the must exclusively Id., be the internal commerce of a State.” at 194-195. nearly century thereafter,

For Commerce Court’s rarely with Clause decisions dealt but the extent Con- gress’ entirely power, and almost with the Commerce Clause legislation against a limit on state that discriminated in- g., Moor, terstate commerce. e. See, Veazie v. How. (1853) (upholding monop- 573-575 a state-created steamboat 554 wholly regulation com of internal

oly it involved because (1888) (uphold merce); 1, 17, 20-22 128 S. Pearson, U. Kidd v. intoxicat prohibition manufacture of ing on the a state compre power “does not liquor ing the commerce because which purely of a State internal domestic the hend be man within State man and on between carried State”); parts Tribe, L. see also the same tween different (2d 1988). Under this Law 306 ed. American Constitutional categories precedent, that certain held Court line “manufacturing,” “production,” and “min activity such as governments, province ing” of state were within Congress beyond under the Com were thus Filburn, 111, 317 S. v. U. See Wickard merce Clause. (1942) development (describing Clause of Commerce 121 jurisprudence). Congress Act, Interstate Commerce 1887, enacted the

In Congress An- 1890, enacted Sherman 379, 24 Stat. § seq. amended, 1 et as 15 U. S. 209, C. Act, titrust Stat. regulation new of federal under ushered in a era These laws involving power. first these laws When cases the commerce negative imported Com- Court, from our this we reached approach could not cases the merce Clause “manufacturing,” regulate “production,” activities such Knight g., “mining.” Co., E. C. See, e. United States v. (1895)(“Commerce to manufacture, succeeds 156 U. S. it”); part Co., not Coal and is Carter v. Carter subject (“Mining brings matter of com- it”). disposes of merce into Simul- existence. Commerce taneously, however, that, held where the interstate Court mingled aspects and intrastate of commerce were so to- gether regulation required that full of interstate commerce regulation commerce, incidental of intrastate the Commerce regulation. g., Shreveport e. See, Clause authorized such Cases, Rate U. 342 S. Poultry Corp. States,

In A. L. A. Schechter (1935), regulations the Court struck down in- individuals an employed fixed the hours and of wages re- trastate business because the activity being regulated so, to In indirectly. lated interstate commerce only doing characterized the distinction between direct Court indirect effects of intrastate transactions interstate upon one, commerce as “a fundamental essential to the mainte- Id., of our Activities nance constitutional at 548. system.” that affected interstate within Con- commerce were directly activities commerce gress’ power; affected interstate Id., were The indirectly beyond reach. 546. Congress’ for this formal fear justification distinction was rooted that otherwise “there fed- would be no limit to the virtually eral all we should have power practical purposes centralized completely government.” Id., at 548. years later,

Two the watershed case & of NLRB v. Jones Steel (1937), U. the Court Laughlin Corp., S. upheld National Labor against Relations Act a Commerce Clause and in the challenge, the distinction process, departed from between “direct” and “indirect” effects on com interstate (“The Id., at merce. 36-38 of Con question [of scope is gress’ power] one held necessarily Court degree”). that intrastate activities that “have such a close and substan tial relation to interstate commerce their control essential or appropriate that commerce protect from burdens and obstructions” are within Congress’ power Id., at regulate. 37.

In United States v. 312 U. Darby, (1941), S. the Court the Fair upheld Labor Act, Standards stating: power “The over Congress interstate commerce is not confined to the regulation commerce among states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power over it Congress regulation make of them means appropriate to the attainment aof legitimate end, the exercise of the granted power of regu- late Id., interstate commerce.” at Dairy Wrightwood Co., S. 315 U. States v. also See (the intra to those “extends 110, 119 way with or interfere which in a substantial state activities power”). granted the exercise obstruct application upheld the Filburn, the Court In Wickard Adjustment Agricultural Act of to the of amendments homegrown consumption wheat. production to the explicitly re- The Wickard Court S., 317 U. at 128-129. effects jected direct and indirect between distinctions earlier stating: commerce, on interstate “[Ejven may though activity appellee’s it be local if may its regarded still, whatever commerce, it not as be Congress by if it exerts substantial nature, be reached irre- commerce, this effect on interstate economic might spective some effect what at such is of whether or ‘indirect.’” defined as ‘direct’ time have been earlier Id., at 125. although emphasized own that Filburn’s Court Wickard may have trivial for wheat been to the demand

contribution scope “enough him from not to remove was itself, that regulation taken where, here, contribution, his of federal similarly many together is far situated, others with that Id., from at trivial.” 127-128. Darby, Laughlin in Steel, and Wickard ushered

Jones & greatly jurisprudence ex- that an era of Commerce Clause authority panded previously under defined part, recognition great was a that In this Clause. changes way that had occurred in the business was carried country. Enterprises once on this that had been local scope. regional at most national in nature had become change But the doctrinal a view earlier also reflected artificially Commerce Clause cases had constrained the au- thority Congress regulate interstate commerce. precedents

But which even these modern-era have ex panded congressional power under the Commerce Clause power subject confirm this to outer In limits. Laughlin scope Steel, Jones & Court warned that the be interstate commerce “must considered light system government may dual be ex of our not upon tended as to embrace effects commerce so so interstate them, indirect and remote that to in view of our embrace complex society, effectually would obliterate the distinction between is national and what a com is local and create what pletely government.” S., 37; centralized U. at see also Darby, supra, (Congress may regulate at 119-120 intrastate activity that has a com “substantial effect” interstate merce); supra, may (Congress regulate Wickard, ac tivity that “exerts a substantial economiceffect on interstate commerce”). time, Since that has heeded that Court warning and undertaken to decide whether a rational basis concluding regulated activity sufficiently existed for that a g., Virginia affected interstate See, commerce. e. Hodel v. Mining Assn., Inc., & Reclamation S.U. Surface 276-280 (1981); Perez States, 146, 155-156 v. United (1971); McClung, (1964); 294, 299-301 Katzenbach v. 379 S.U. Motel, Heart Atlanta Inc. States, 241, v. United 379 U. S. of (1964).2 252-253 Similarly, (1968), Maryland Wirtz, 392 U. S. 183 power regulate Court reaffirmed that “the commerce, to though ample “[t]he indeed, broad has limits” that Court has power” grounds, Id., to enforce. at overruled other League (1976), Usery, National Cities v. 426 U. S. 833 of Metropolitan overruled Garcia v. San Antonio Transit 2 Hodel, S., See also 452 U. 311 may at (“[SJimply Congress because con particular clude that a activity substantially affects interstate commerce so”) necessarily does not (Rehnquist, J., make it concurring judgment); Motel, S., (“[Wjhether Heart Atlanta 379 U. at particular operations 273 of affect interstate sufficiently commerce to under come the constitutional Congress regulate of ultimately judicial them is a rather than a legislative question, Court”) only by can be settled finally (Black, this J., concurring).

Authority, to the dissent’s In response 469 U. S. 528 the limita- to enforce was that Court powerless warnings activities “[a]ll because powers tions on Congress’ [Wickard], minutest commerce, degree, in the even affecting atS., 392 U. by Congress,” be and controlled may regulated Wirtz Court replied J., dissenting), (Douglas, “[njeither nor in here the dissent had misread precedent Wickard has use a that Congress may the Court declared for broad as an excuse on commerce impact trivial relatively activities,” id., of state or private at general regulation gen- that where has said Rather, only Court “[t]he n. regulatory to com- relation eral statute bears substantial merce, minimis character the de aris- of instances individual Ibid, (first statute is of no consequence.” under ing added). emphasis three structure, have identified with this we

Consistent may regulate that Congress broad activity categories supra, Perez, 150; also at see power. under its commerce supra, Hodel, First, may regulate at 276-277. Congress e.g., See, interstate commerce. use the channels of supra, Darby, Motel, Heart Atlanta at S., 114; 312 U. (“ the channels keep authority Congress ‘[T]he uses and injurious interstate commerce free from immoral and is no sustained, longer open ques has been frequently ” States, Caminetti v. tion’ (quoting (1917))). Second, empowered regulate commerce, of interstate or per the instrumentalities protect commerce, sons or even interstate things though g., e. See, threat come intrastate activities. may only from Shreveport Cases, Rate R. Southern Co. (1914); States, v. amendments (upholding to Act used in intra as to vehicles Safety Appliance applied supra, state commerce); Perez, (“[F]or at 150 example, (18 destruction an 32), § of aircraft U. S. C. or... thefts from (18 § 659)”). interstate S. C. shipments Finally, U. Congress’ commerce includes the to ac- authority power regulate those commerce, tivities a substantial relation to interstate having Steel, S., e., Jones i. Laughlin & U. at those activities commerce, Wirtz, that affect interstate substantially supra, at 196, n.

Within this final our case has not law category, admittedly, been clear whether an “affect” or activity must “substan affect” order within tially interstate commerce in to be to it under Clause. power the Commerce Congress’ regulate ICC, Wirtz, Preseault 1, 17 (1990), with Compare (the n. 27 Court has never declared that “Con supra, use a gress relatively trivial may impact an excuse for broad of state or general regulation private activities”). conclude, We consistent with the great weight of law, our case an of analysis test proper requires whether inter affects” regulated activity “substantially state commerce.

We now turn to consider the of Congress, § of this cate- framework, enact The first two light 922(q). § of be is not gories of: authority may quickly disposed 922(q) of com- regulation use the channels interstate merce, nor is it an trans- attempt interstate prohibit of a portation commerce; the channels of commodity through § nor can be as a which Con- 922(q) justified regulation has an gress sought of interstate protect instrumentality commerce or a Thus, interstate if thing commerce. § sustained, be it under 922(q) must be the third cate- as a gory regulation an activity affects substantially interstate commerce.

First, we have wide upheld Acts variety congressional intrastate regulating economic where we have con- activity cluded that the activity affected substantially interstate commerce. include the Examples intrastate regulation coal mining; Hodel, intrastate supra, extortionate credit transactions, Perez, restaurants supra, utilizing substantial interstate supplies, McClung, inns and supra, hotels catering to interstate guests, Motel, Heart Atlanta supra, pro- homegrown consumption Wickard v. wheat, and of

duction examples no are These Filburn, pattern economic clear. Where exhaustive, but the means activity legislation substantially commerce, affects interstate activity regulating will be sustained. that reaching perhaps ex- the most far Wickard, which is Even activity, authority ample over intrastate Clause of Commerce possession activity way the of a in a economic involved gun operated a not. Roscoe Filburn a school zone does in year he raised which, involved, in Ohio, in the small farm practice his to sow winter wheat It was wheat. acres harvesting July portion of it to sell a in fall, in and after part poultry crop, on the and livestock to of it to feed consumption, making in for home to use some flour farm, seeding crops. keep future and to the remainder penalty against Secretary Agriculture him assessed a Adjustment Agricultural because he Act under the his allotment more than harvested about acres wheat designed regulate permitted. The Act was under the Act foreign moving com- in interstate and volume wheat shortages, surpluses and con- in merce order avoid prices, previously in wheat which had comitant fluctuation sustaining opinion ap- in an said, obtained. The Court activity: plication of the Act to Filburn’s primary question purposes Act in was “One price to increase the market of wheat and to end limit the volume could affect the market. thereof that hardly It can be denied that factor of such volume variability as home-consumed wheat would have a sub- price stantial influence on market conditions. This may being because condition such arise marketable overhangs by rising and, wheat the market if induced prices, price tends flow into the market and check if marketed, increases. But we assume that it is never supplies grew it a need of the man it which who would by purchases open otherwise be reflected market. wheat in this sense with wheat Home-grown competes S., commerce.” 317 U. at is a Section criminal statute that its terms has 922(q) by to do with “commerce” or nothing sort of economic any however one those enterprise, broadly define terms.3 might Section not an essential 922(q) of a part larger regulation of economic in which the activity, scheme could regulatory be undercut unless the intrastate were activity regulated. It cannot, therefore, be sustained under our cases upholding regulations activities that arise out or are connected with a commercial transaction, which viewed the aggre gate, substantially affects interstate commerce.

Second, § contains no 922(q) element jurisdictional which would ensure, through that the case-by-case firearm inquiry, possession affects question interstate For commerce. ex- in United States Bass, ample, v. 404 (1971), U. S. 336 the Court § former 18 interpreted 1202(a), U. S. C. which made it “

3 system, Under our federal possess the ‘States primary authority for Abrahamson, defining enforcing the criminal law.’” Brecht v. 507 (1993) 619, (quoting Engle Isaac, 635 107, 128 (1982)); v. 456 U. S. see States, also Screws v. (1945) United 91, 325 U. (plurality S. opinion) (“Our government national is one of delegated powers alone. Under our system federal the justice administration of criminal rests with the States except Congress, acting within scope the delegated powers, those States”). has created against offenses the United When Congress crimi already nalizes conduct by States, denounced as criminal the it effects “‘change a in the sensitive relation between federal and state criminal jurisdiction.’” Enmons, States v. 396, 410 U. S. 411-412 Bass, United States (quoting (1971)). 336, The Govern § ment acknowledges 922(q) “displaced] policy state choices in ... prohibitions its apply even in States that have chosen not to outlaw the conduct in question.” Brief for 29, 18; United States n. see also State ment of George President Bush Signing the Crime Control ofAct Weekly Comp, (Nov. 1990) (“Most Pres. Doc. egre giously, [922(q)] section inappropriately legitimate overrides State fire arms laws with a new and unnecessary policies Federal law. The re flected in provisions these could legitimately adopted by States, be the they but imposed should not upon be Congress”). States “receiv[e], crime a felon to posses[s], transport] commerce . . . firearm.” or affecting any S., at 337. The

U. Court interpreted possession compo- 1202(a) to § nent of an additional nexus interstate require was be- commerce both because statute ambiguous its “unless it will cause Congress conveys clearly, purpose be to have federal-state not deemed significantly changed Id., at 349. The Bass Court set aside the convic- balance.” had demonstrated because, Government tion although failed “to firearm, had it had show that Bass possessed Id., nexus with interstate commerce.” the requisite to reserve the the statute consti- The Court thus interpreted without whether could regulate, tutional question id., at 339, of firearms. See “mere more, the possession” Gambling Devices, v. Five States see also 4;n. (“The (1953) is old principle opinion) (plurality that this Court in our imbedded jurisprudence and deeply of decision a manner that a in requires statute will construe if lan- the statutory only constitutional questions serious alternative”). Unlike the stat- no reasonable leaves guage element Bass, no has express jurisdictional ute in §922(q) of set firearm to a discrete pos- limit its reach which might with or connection an have explicit that additionally sessions commerce. interstate effect on of consti evaluation of our independent

Although part con we of course Commerce Clause the under tutionality com even indeed congressional findings, sider legislative commerce, on interstate effect findings, regarding mittee ICC, 494 U. g., Preseault v. Government S., at see, e. its “[njeither history nor legislative the statute that concedes the ef findings regarding congressional express contain[s] ain school gun possession interstate fects upon with 5-6. We States agree for United Brief zone.” to make is not required normally that Congress Government that an activity substantial burdens as to the formal findings McClung, S., 304; 379 U. at commerce. See on interstate has see also Perez, S., 402 U. at 156 need make (“Congress [not] in order particularized findings But legislate”). extent that would enable us to evalu congressional findings ate the legislative that in judgment activity question substantially commerce, affected interstate even no though such substantial effect was visible to the naked are they eye, here.4 lacking

The Government has accumulated argues institutional of firearms expertise regarding regulation enactments. Fullilove through previous Klutznick, Cf. (Powell, J., We concurring). agree, however, with Fifth Circuit that importation previous findings here justify §922(q) especially inappropriate because the federal enactments “prior Congressional findings to the matter section speak subject [do not] 922(q) or its to interstate Indeed, commerce. section relationship new a 922(q) plows thoroughly ground represents sharp break with the of federal firearms long-standing pattern leg 3d, islation.” F.

The Government’s essential contention, is that we fine, may § determine here that is valid because 922(q) possession a firearm in a local school zone does indeed substantially affect interstate commerce. Brief United States 17. The Government argues firearm possession school zone result may violent crime and that violent crime can be to affect the the expected of na- functioning tional in two economy ways. First, the costs of violent 13,1994, We note that on September signed Clinton President into law the Violent Crime Control Law of Enforcement Act Pub. L. id., 103-322, 108 Stat. Act, 1796. Section 320904 of that amends § 922(q) congressional to include findings regarding the effects of firearm possession in and upon around schools foreign interstate commerce. The rely Government upon does not subsequent findings these aas substi tute for the absence findings of in the first Tr. Arg. instance. of Oral (“[W]e’re relying not on them word, in the strict sense of the but we think very that at a they minimum indicate that reasons can be identified for why Congress regulate wanted to particular this activity”). through of insur- mechanism substantial, and,

crime are population. throughout spread See ance, those costs are 1991). (CA9 Sec- 2d Evans, 928 F. States v. willingness to of individuals reduces the ond, violent crime perceived country to be that are within the to areas travel S., at Motel, 379 U. Cf. Heart Atlanta unsafe. guns presence argues schools that the also Government process poses to the educational threat a substantial handicapped threatening learning edu- A environment. productive citi- process, in a less turn, result cational will zenry. an effect on turn, iii would have adverse That, well-being. result, the Government As a economic Nation’s rationally Congress that argues have concluded could that § substantially 922(q) affects interstate commerce. implications pause of the Government’s

We to consider arguments. admits, under its “costs The Government regulate only reasoning, Congress all not that could crime” might to violent that lead violent but all activities crime, they tenuously regardless relate to interstate of how crime, Arg. Similarly, under the 8-9. commerce. See Tr. of Oral reasoning, Congress productivity” “national Government’s any regulate activity was related to the that it found could (in- family productivity law of individual citizens: economic custody), example. cluding marriage, child divorce, support presents in Under the theories that the Government § any 922(q), perceive limitation on federal it is difficult power, law enforcement or even in such as areas criminal historically sovereign. have been education where States accept arguments, if we we Thus, were to the Government’s pressed posit any activity by are hard an individual that Congress regulate. is' without

Although argues acceptance Breyer that Justice general fed- Government’s rationales would not authorize a any police power, identify activity eral is unable he may may regulate the States but not. Justice posits might Breyer there be some limitations on Con- gress’ power, family aspects such law as or certain suggested Post, of education. at limitations, 624. These light expansive analysis, when in viewed dissent’s are devoid substance. part, focuses, for the most on threat Breyer Justice possession poses

that firearm and near schools the edu- process potential consequences cational and the economic flowing Specifically, Post, from that threat. at 619-624. (1) gun-related the dissent reasons that is a violence serious (2) problem; problem, turn, that has an adverse effect on learning; classroom adverse effect that on classroom learning, represents in turn, a substantial threat to trade and analysis equally Post, commerce. be 623. This would applicable, subjects family if not more toso, such as law and regulation direct of education. Congress pursuant

For if instance, can, to its Commerce power, regulate adversely Clause activities affect learning regulate environment, then, a it also can fortiori, process directly. Congress the educational could determine “significant” that a school’s curriculum has a effect on the learning. Congress extent of classroom As a result, could elementary mandate a federal curriculum for local and sec- ondary taught schools because what is in local schools has a significant learning,” “effect ibid., on classroom cf. and that, turn, has a substantial effect interstate commerce. rejects reading precedent our Breyer and ar- Justice gues “Congress rationally . . . could conclude that fall schools on the commercial Post, side of the line.” at 629. Again, any rationale lacks Breyer’s real limits be- Justice depending cause, any generality, on the level activity can upon be looked as commercial. Under the dissent’s ration- Congress just ale, easily rearing could as look at child “fall[ing] on the pro- commercial side the line” because it vides namely, equip “valuable [children] with service— they the skills need to specifically, survive in life and, more workplace.” in the Ibid. We do not doubt that nu- to regulate Commerce Clause under the has authority inter- substantially affect activities commercial merous process. affect the educational and also state authority include the does not broad, though authority, That local schools. of and every aspect each to regulate activity an intrastate whether a determination Admittedly, eases result in some noncommercial may is commercial is authority But, so as long Congress’ uncertainty. in legal Constitution, in the enumerated to those powers limited hav- as are interpreted enumerated powers so those long limits, legisla- outer congressional enforceable ing judicially will engender “legal always the Commerce Clause tion under As Justice Marshall Post, at 630. Chief uncertainty.” (1819): 4 Wheat. Maryland, v. stated McCulloch all is acknowledged government “Th[e] [federal] that it can principle, The one of enumerated powers. be now univer- it... only powers exercise granted the extent But the question respecting admitted. sally arising, is perpetually actually of granted, powers as our arise, sys- continue to as long and will probably Id., at 405. shall exist.” tem (“The enumera- Wheat., at 195 Ogden, also Gibbons v. See enumerated”). not Consti- something tion presupposes from Con- mandates this uncertainty by withholding tution that would authorize enactment police power gress plenary has I, § of 8. Congress See Art. every legislation. type ever legal uncertainty within this framework operated it Judiciary’s duty this that was the since Court determined Madison, 1 “to what the law is.” Cranch say Marbury J.). from (Marshall, C. benefit Any possible at uncertainty” this would be eliminating “legal expense of the Constitution’s of enumerated system powers. Steel, S.,

In we held that Jones & U. Laughlin under Commerce question congressional power Clause “is the same necessarily degree.” one To effect concurring opinion is the Cardozo Schechter Justice Poultry:

“There is a view of causation that would obliterate the distinction between what is national and what is local the activities of Motion at the rim is commerce. outer perceptibly, though minutely, communicated to record- ing society instruments at center. A such as ours ‘is an elastic medium which transmits all tremors throughout territory; only question its is of their (quoting S., size.’” 295 at U. United States v. (CA2 Poultry Corp., A. L. A. Schechter F. 2d 1935)(L. concurring)). Hand, J., precise formulations, These are not the nature things they they point way cannot But think to be. we possession gun a correct decision of this case. The of a activity local school zone is in no an sense economic might, through repetition any substantially elsewhere, affect Respondent sort of interstate commerce. was a local stu- dent at a school; local there is no he indication that had re- cently moved in commerce, interstate and there is no re- quirement possession any that his of the firearm have tie concrete to interstate commerce. uphold

To the Government’s contentions we here, would pile upon have to inference inference in a manner that would congressional authority bid fair to convert under the Com- general police power to merce Clause of the sort retained Admittedly, prior the States. some of our cases have steps long giving great taken down road, deference congressional supra, action. See at The 556-558. broad language opinions suggested in these possibility has expansion, additional proceed any but we decline here to fur- require To do ther. so would tous conclude that the Consti- powers tution’s presuppose enumeration of does not some- thing not Ogden, supra, enumerated, cf. Gibbons v. and that there never will be a distinction between what is Laughlin truly

truly cf. Jones & local, what national and unwilling supra, do. This we are Steel, at 30. judgment foregoing of the Court reasons the For the Appeals is

Affirmed. joins, Kennedy, with whom Justice O’Connor Justice concurring. interpret judicial struggle history the Com- sys- during from the economic the transition

merce Clause single, still market to the national knew tem Founders great emergent restraint before era counsels in our own support that the is insufficient determines Clause Court history gives power. me That national an exercise of the join today’s pause but I the Court’s decision, some about opinion I be its on what conceive to with observations these holding. necessary though limited that the author- announced national Justice Chief Marshall ity more than commerce which concerns States reaches “that power complete may itself, “is one” and the commerce that acknowledges no limi- extent, and be to its utmost exercised prescribed in the constitution.” Gib- tations, than are other (1824). Ogden, His statements bons v. Wheat. early recogni- as an authoritative can be now understood Congress grants that Clause extensive tion the Commerce power ample appropriate its ex- discretion to determine progression of cases from ercise. The our Commerce Clause present by marked, to was not a coher- however, Gibbons the interpretation; of neither the ent or consistent course for princi- technological the course advance nor foundational ples jurisprudence to the the itself were self-evident contemporary by sought disputes en- courts to resolve during principles. century adoption of

Furthermore, for almost a after the did Constitution, the Court’s Clause decisions Commerce authority legislate. Congress Rather, not concern the quite question the Court faced the related but distinct of the authority regulate of the that would be States matters power Congress within the commerce had to act. chosen simple early years Republic, fact was that in the of the Congress perceived necessity seldom to exercise its power authority in circumstances where its would be called question. into The Court’s initial was to task, therefore, permit elaborate the theories that would the States to act part where had not done so. Not the least of the problem question congres- was the unresolved whether the by question sional was exclusive, a Chief reserved Ogden, supra, Justice Marshall in Gibbons v. at 209-210. midpoint century, At the of the 19th embraced the Court principle that the States and the National Government authority regulate both have certain matters absent congressional displace determination to law or the ne- local cessity for the Court to invalidate local law because power. Cooley dormant national Board Wardens v. Philadelphia Port ex rel. Distressed Soc. for Relief of (1852). utility Pilots, How. 299, 318-321 But the of that apparent, generally solution was not at once see F. Frank- Taney furter, The Commerce Clause Marshall, under (1937) (hereinafter Frankfurter), Waite and difficulties of application persisted, Leisy Hardin, see 122-125 approach inquire

One used Court into lawfulness authority subject- of state was to draw content-based or defining matter distinctions, thus semantic or formalistic categories those activities that were commerce and those deciding were For not. instance, that State could prohibit liquor the in-state manufacture of intended for out- shipment, distinguished of-state it between manufacture and popular commerce. “No distinction is more to the common clearly expressed mind, or more political in economic and literature, manufacture] than that between and commerce. fashioning Manufacture is transformation —the of raw mate- com- functions of The of form for use. into a change rials Pearson, 128 U. S. Kidd 1, merce are different.” sur- not have would likely Though approach authority of a State’s to the question if confined vived even when not at all applied it was propitious to enact legislation, were within of what subjects different question to the quite chose when Congress national reach of the the exercise it. to confront when the began became evident Court

This the rapid enacted response economic regulation federal it Thus, in the late 19th century. industrial development in United dichotomy the manufacture-commerce relied upon Knight Co., 156 U. S. v. E. C. where a manu (1895), States the some 98% of Nation’s controlling facturers’ combination the held to be outside was domestic refining capacity sugar manufac to control Act. Conspiracies reach of Sherman or prices, ture, wages, agriculture, mining, production, on interstate “indirect” an effect had too explained, Court States, And in Adair v. Id., at commerce. the com the view (1908), the Court rejected local that, although extend to activities merce power might State, nev single within having originated the sense ac on interstate commercial ertheless had a effect practical was not a “legal The Court concluded that there tivity. connection between an employé’s membership . .. logical com a labor and the on of interstate organization carrying merce,” id., a federal statute forbid and struck down his of an because of ding discharge membership employee Employers’ Liability also in a labor See organization. Cases, 468, 497 statute (invalidating creating action common carriers for in negligence against personal sustained in course of juries employees employment, because the statute because “regulates persons they in interstate commerce and does not alone engage regulate commerce”). business interstate

571 Even before the Court committed itself to sustaining federal of legislation on broad economic practi- principles found it to it from these decisions. cality, necessary depart E. C. The Court disavowed reliance the Knight’s in Standard Oil Co. of distinction manufacturing-commerce N. States, J. v. United 221 U. (1911), declaring S. 68-69 that the “unsound.” Court likewise approach rejected Adair when in Texas Orleans of it decided, & New rationale Clerks, R. Railway Co. v. (1930), 281 U. 570-571 that S. had the to matters to Congress power regulate pertaining of railroad organization workers. In cases, another line of addressed Court Congress’ efforts to local activities it impede considered undesirable ele- interstate movement of some essential prohibiting Case, ment. In the Lottery (1903), 188 321 the Court U. S. lacked rejected argument pro- power hibit the interstate it movement of tickets because lottery had not to Hipo- power only See also regulate, prohibit. lite Co. States, v. United Hoke v. Egg (1911); States, In Hammer Dagen- U. S. hart, (1918), 247 U. S. 251 however, the Court insisted the commerce “is regulate directly contrary id., the assumed to forbid from at right moving,” 269-270, struck down on the interstate prohibition transportation in goods manufactured violation of child labor laws.

Even while it was satis- experiencing finding difficulties factory principles cases, these the Court was pursuing more sustainable and in other lines of de- practical approach cisions, particularly those of railroad involving regulation rates. In the Minnesota Rate Cases, 230 U. S. 352 (1913), the Court upheld a state rate order, but observed that Con- gress be might empowered this if regulate area “by reason of the interblending the interstate and intrastate operations interstate carriers” the regulation interstate rates could not be maintained without restrictions on “intra- Id., the former.” affect substantially

state rates which Cases, Rate in the Shreveport 432-433. And Commis- Interstate Commerce an the Court (1914), upheld con- that rates with the explanation railroad fixing sion order to interstate carriers these “extending authority, gressional embraces commerce, necessarily of interstate as instruments in matters having all control their operations the right that traffic to interstate and substantial relation such a close of that security to the or appropriate the is essential control and to the service, of the interstate efficiency to the traffic, under which interstate of conditions maintenance without molestation fair terms and upon be conducted may Id., at or hindrance.” of “commerce” interpretation confined

Even the most States, so the between the would embrace transportation than cases difficulty for the Court rate cases much less posed the Nevertheless, manufacture involving production. of a concep- of practical Court’s recognition importance confined was not altogether tion of the commerce power States, 196 U. S. & Co. United In v. the rate cases. Swift of federal anti- (1905), application Court upheld meat that occurred in law a dealers trust combination sale one trade in cattle “sent for but that restrained State that will State, from a in one with the expectation they place Id., The end their at 398. Court transit ... in another.” is that the States not technical explained among “commerce from the legal one, but a drawn course conception, practical Ibid. Taft followed the same business.” Justice Chief federal approach regulation stockyards upholding Wallace, 258 U. for the S. Speaking Stafford id., he Court, “nice and technical rejected inquiry,” the local transactions not when at issue could “be separated contribute,” id., from the movement to which at 516. they Reluctance Court all of its adopt approach cases caused inconsistencies in doctrine to persist, however. In New Deal Court addressing legislation resuscitated and indi abstract distinction between direct abandoned rect on interstate See Carter v. Carter effects commerce. (1936) (Act price regulating Co., 298 Coal U. S. wages only for “sec coal and and hours miners held to have commerce); ondary and indirect” effect on Rail interstate Co., 330, 368 road Retirement Bd. v. Alton R. pension (compulsory plan retirement and carrier railroad employees any regulation too “remote from of commerce such”); Poultry Corp. States, A. L. A. Schechter v. United (1935) (wage provision and hour law Recovery National Industrial Act had “no direct relation to commerce”). interstate mark the definitive commit case seems to Court’s practical conception

ment to of the commerce (1937), Laughlin Corp., NLRB v. & 301 1 Jones Steel U. S. applied Court where the sustained labor laws that to manu making distinguish facturing attempt facilities, no real supra, supra. Carter, Schechter, and S.,U. at 40-41. given Congress The deference has since been confirmed. (1941), Darby, 312 United States v. 116-117 U. S. Dagenhart, supra. overruled Hammer And in v. Wickard (1942), disapproved Filburn, the Court Knight E. C. and the entire line of direct-indirect and manufacture-production explaining cases, in that “broader terpretations [were] of the Commerce Clause destined to su persede “[w]hatever the earlier ones,” S., U. at terminology necessarily is used, the criterion is one of degree satisfy and must be so does defined. This not those rigid who seek mathematical or formulas. formu But such provided by great concepts las are not of the Constitu tion,” examples id., Later n. 24. of the exercise of federal where commercial transactions were the sub ject regulation include Heart Atlanta Motel, Inc. v. (1964), United States, 379 McClung, U. S. Katzenbach v. (1964), 379 U. S. 294 and Perez States, v. United 402 U. S. 146 (1971). These and like authorities within are the fair ambit regulation conception practical of commercial

of the Court’s today. by question decision in our called and are not history contains at decisions our Clause The Commerce first, as case. The relevance to this lessons of least two imprecision content-based outset, is the stated at the limits without more to define boundaries used the first but of related to second, Commerce Clause. consequence, greater as an institution is that the Court even legal system immense stake as a whole have an jurisprudence stability as it has of our Commerce Clause great operates point. with Stare decisis to this counseling evolved question call in the essential us not to force principles congressional power place respecting now regulate nature. That fun- transactions of a commercial reverting power forecloses us from restraint on our damental only understanding that would serve an of commerce to an economy, dependent upon production 18th-century then changed preced- trading practices over the but little that had against returning ing to the time centuries; it also mandates authority regulate congressional undoubted com- when judicial determination mercial activities was limited connection to an inter- matters had an insufficient that those regulate system. Congress in the commercial state can single sphere assumption market and that we have a on the economy. purpose a unified to build a stable national subject referring state In to the whole of the federal and just ago: this three Terms balance, we said sufficiently been flexible over “This framework has changes past the two centuries to for enormous allow government. in the nature of The Federal Government today un- undertakes activities that would have been imaginable in first, to the Framers two senses: because any govern- the Framers would not have conceived that ment would activities; second, conduct such and because the Framers would not have believed that the Federal Government, States, rather than the would assume such

575 conferred the Yet the powers upon responsibilities. the were phrased Federal Government Constitution by for the in broad to allow language enough expansion York United the Federal Government’s role.” New v. deleted). States, 144, 157 (emphasis not in follow, however, It does instance the Court every the lacks review authority responsibility congres- re- sional to alter the federal balance. This case attempts us to consider our in the Govern- quires place design ment of federalism the appreciate significance whole structure of the Constitution. Constitution,

theOf various structural elements in the review, checks and balances, separation powers, judicial and federalism, the last does there seem to only concerning be much and the con- existence, uncertainty respecting tent, of standards that allow the Judiciary signifi- play cant role in maintaining design contemplated by Framers. cases has resolution of Although specific proved difficult, we have derived from the Constitution workable standards to assist preserving separation Cases, checks and e. Prize 2 powers See, balances. g., Black 635 (1863); Tube Sheet & Co. v. Youngstown Sawyer, 343 U. 579 (1952); Nixon, S. 683 States v. U. S. (1974); Valeo, Chadha, Buckley (1976); v. U. INS v. S. 462 U. 919 (1983); (1986); Bowsher v. Synar, S. Plaut v. Farm, Inc., ante, These stand- Spendthrift p. ards are now well Judicial review is also es- accepted. tablished beyond question, Madison, 1 Marbury v. Cranch 137 (1803), and we differ when though its may applying prin- see, e. ciples, g., Planned Parenthood Pa. Southeastern 505 U. S. 833 its Casey, (1992), is undoubted. Our legitimacy role in preserving federal balance seems more tenuous.

There is irony this, because of the four ele- structural ments in the Constitution just mentioned, federalism was the unique contribution of the Framers to political science and political See theory. A Friendly, Foreword, Federalism: American of the The Creation (1977); Wood, G. L.

Yale J. the 524-532, 564 Though 1776-1787, pp. Republic, in the counterintuitive, it was seem may the idea surface cre the by was enhanced that freedom the Framers sight re the not “In compound one. of two governments, ation the people the surrendered America, power public and then governments, two distinct first divided between distinct and sepa among to each subdivided allotted portion arises to the security Hence a double departments. rate will control The different governments rights people. be controlled by each will the same time that other, at each 1961) (C. Rossiter ed. 51, Federalist No. p. The itself.” Gregory Ashcroft, 452, (J. Madison). 501 U. S. also v. See (1991) (“Just and independence separation 458-459 serve to of the Federal Government the coordinate branches one excessive power any accumulation of prevent the States between balance branch, healthy risk of tyranny will reduce the the Federal Government federal In tension between ... abuse from either front. New York v. of liberty”); lies the promise and state power supra, States, (“[T]he divides au at 181 Constitution for pro federal and state governments between thority is not an end just tection of individuals. State sovereignty the liberties secures to citizens ‘Rather, federalism itself: ”) (quoting derive from the diffusion of sovereign power’ Thompson, Coleman (Blackmun, J., dissenting)). accord more liberty

The two governments theory discern- for its realization two distinct and than one requires lines of one between the citizens able political accountability: the citi- Government; and the Federal the second between the Federal If, zens and the States. as Madison expected, other, Governments are to control each see State Federalist and hold each other in check No. by competing affections of the see The Federalist No. people, those citizens must have some means of which of knowing governments to the two to hold accountable for the failure perform given assign po- to function. “Federalism serves responsibility, not to v. Ticor Title litical obscure it.” FTC Federal Gov- Co., Ins. Were the regulation ernment to take over the of entire areas of tradi- having nothing do with the concern, tional state areas regulation of commercial the boundaries between activities, authority spheres and of federal and state would blur political responsibility illusory. New York would become Cf. Mississippi, supra, States, 155-169; FERC v. concurring judg- J., (O’Connor, part inability dissenting part). inment and The resultant government to hold either branch of the answerable to dangerous devolving much au- citizens is more even than too thority power. to the remote central The sure,

To be one conclusion that be drawn from could Papers Federalist is that the balance between national power political proc- entirety state is entrusted in its to the people ought Madison’s observation that not ess. “the surely precluded giving to be from most of their confidence they may due,” where discover it to be most The Federalist (C. p. 1961), interpreted No. Rossiter can be ed. say power responsibility that the essence of for a shift in upon polit- from the to the Federal State Government rests judgment, though ical he added assurance that “the State governments apprehend, could have little to because it is only sphere within a certain can, that the federal things, advantageously the nature of be ibid. administered,” judicial Whatever the role, it is axiomatic that does have substantial discretion and control over the federal balance.

For these reasons, it would be mistaken and mischievous political forget for the obligation branches to that the sworn preserve protect maintaining the Constitution in primary federal balance is their own in the first and instance. Webster-Hayne In the Speeches Debates, see The Great (E. 1879), Whipple ed. 227-272 of Daniel Webster Orations Hearings on Rights Acts, see the Civil debates over and the Commerce, 88th Committee the Senate 1732 before S. (1963), Congresses ac- have pts. some Cong., 1-3 Sess., 1st questions great responsibility to confront cepted consequences lasting proper in terms balance federal political design. of Gov- branches constitutional obligation if grave constitutional this fulfill must ernment it are that secures liberty federalism and the democratic endure. mechanisms of structural time, the absence

At the same principled task, and require undertake this officials to those upon momentary political often attendant convenience the complete argue against renunciation so, failure to do their obligation Although of all offi- judicial it is the role. the of design, respect constitutional the cers of the Government Department 440, Justice, 491 U. S. Public Citizen v. see (1981), (1989); Goldberg, 64 453 U. S. 466 Rostker v. part of our constitutional is too essential federal balance securing for plays freedom role in too vital a and structure inability other level one or the to intervene when admit us to tipped scales too far. has of Government maintaining participated past in has In the this Court exposition through judicial such of doctrines federal balance Younger g., Harris, 37 401 U. S. e. v. abstention, see, (1971); Co., 312 Tex. Pullman U. S. v. Railroad Comm’n (1943), (1941); Co., 315 Oil 319 U. S. 496 v. Sun Burford g., primacy determining e. Erie law, see, of state for rules (1938), Tompkins, the doctrine of ade- 304 64 R. v. U. S. Co. grounds, g., independent quate e. Murdock v. see, state (1875); Long, Michigan Memphis, 463 U. S. 20 590 v. Wall. (1983), jurisprudence pre-emption, see, 1032 the whole (1947); Corp., g., 218 e. Rice Fe Elevator 331 U. S. v. Santa (1992), Liggett Group, Cipollone Inc., 505 504 v. U. S. many governing jurisprudence, see, our habeas rules (1991); Thompson, McCleskey g., 722 e. Coleman v. 501 U. S. Lane, Zant, v. 489 U. S. Teague (1991); 499 U. S. v. Wainwright Rose 455 (1982); v. Lundy, (1989); v. 433 U. S. 72 Sykes, this under the Commerce principle ability preserve

Our a much supra, has See greater challenge. presented Clause history “This clause has Court’s throughout at 568-574. of its federal- the chief source adjudications regarding been affords a fairer or more and “no other ism,” body opinions test of Frankfurter 66-67. judicial qualities.” revealing it to declare as the branch whose distinctive duty But Madison, we Marbury is,” Cranch, the law v. “what to resolve of constitutional are often called upon questions not to the mechanical of bright law susceptible application The substantial element of and clear lines. political judg- Clause matters leaves our institutional ment Commerce more in when we decide to intervene doubt than capacity the Bill even clear cases, instance, though under of Rights lines are often absent in the latter class of dis- and bright American Liber- Civil County Allegheny See putes. Union, Pittsburgh ties Greater Chapter, J., concurring part concurring (O’Connor, (“We lines, to draw cannot avoid the obligation judgment) difficult lines” in constitutional often close and adjudicating we role at But our cases do not teach that have no rights). of the all Commerce Clause. meaning determining

Our the dormant Commerce Clause position enforcing is instructive. The Court’s doctrinal in that area approach Tax turns.” Oklahoma Comm’n has likewise “taken some Lines, Inc., ante, 180. Yet contrast to the Jefferson that our prevailing skepticism surrounds ability give to the text of meaning Clause, the Commerce there explicit is of our widespread acceptance enforce the dor- authority mant Clause, Commerce which we have but inferred from the constitutional structure as a limitation on the power the States. element of One our dormant Commerce Clause has been jurisprudence that the States not principle may impose regulations place that an undue burden on interstate regulations even where those do not discriminate commerce, in-state and out-of-state businesses. Brown- between See Liquor Corp. Forman Distillers v. New York State Author (1986) (citing ity, Church, Pike S. v. Bruce U. (1970)). Distinguishing reg between Inc., 137, 142 place do an undue burden on interstate com ulations that regulations depends upon not that do delicate merce and Congress judgments. True, law, if we invalidate a state can judgment, a our whereas in case announc in effect overturn transgressed authority, ing Congress has its the decision that consequential, it stands unless can re is more to demonstrate its commercial character. This vise its law circumspection with no doubt informs which difference Congress, mitigate it an Act of but does not we invalidate meaningful duty recognize limits on our Congress. power of upsets the balance to a de- us federal

The statute before assertion of the com- gree it an unconstitutional renders required. As The power, our intervention merce explains, unlike the earlier cases to come be- Justice Chief has nor their conduct neither the actors here fore the Court purposes nor the neither the character, a commercial an commercial nexus. See has evident design of the statute simple possession makes statute ante, at 559-561. grounds the school feet gun 1,000 of a within any in this interde- In sense conduct offense. criminal origin commercial an ultimate has pendent of ours world power yet the commerce said have not consequence, but we Congress attempts extension, then may If reach so far. of national inquire the exercise whether must least we at the upon of traditional state an area intrude seeks concern. is here, for it dimensions occurs of these

An interference concern of the traditional that education well established (1974); Bradley, 741-742 717, 418 v. U. S. Milliken States.

581 Epperson Arkansas, (1968). 97, v. The prox- to schools, of course schools owned and imity including oper- the subdivisions, ated States or their is the very premise circumstances, conduct criminal. In these making we have to ensure that the federal-state particular duty supra, Rice, (“[W]e balance is not Cf. at 230 destroyed. start with the that historic assumption police powers the States” are not a federal displaced by statute “unless Flor- that was the clear and manifest purpose Congress”); Growers, ida Lime & Avocado Paul, Inc. v. U. S. While it is doubtful State, that or indeed any reason any able would person, it is wise to allow argue stu policy dents to on school carry guns considerable dis premises, exists agreement about how best accomplish goal. In this circumstance, theory of our federalism utility are revealed, for the States their role may as labora perform tories for experimentation to devise various solutions where San Antonio Inde the best solution is far from clear. See pendent Rodriguez, School Dist. v. 49-50 (1973); U. S. New Liebmann, State Ice Co.

(Brandéis, J., dissenting).

If a State or determines that harsh municipality criminal sanctions are and wise necessary to deter students from car rying guns school premises, reserved powers States are sufficient to enact those Indeed, measures. over 40 States have already criminal laws outlawing posses g., sion of See, e. Alaska firearms on or near school grounds. §§ Stat. Ann. 11.61.220(a)(4)(A) 11.61.195(a)(2)(A), (Supp. 1994); (West Cal. Penal § Code Ann. 626.9 1994); Supp. Mass. Gen. Laws § 269:10(j) (1992); § 2C:39-5(e) N. J. Stat. Ann. (West Supp. 1994); Va. Code § Ann. 18.2-308.1 (1988); Wis. § 948.605 (1991-1992). Stat.

Other, more practicable means to rid the schools of guns bemay thought by citizens of some States to be prefera- ble for the safety welfare of the schools those States are Confer- Brief for National See with maintaining.

charged (in- et al. as Amici Curiae 26-30 Legislatures ence of State friction causes into local problems of federal officials jection and local gov- of state accountability and diminishes political to inform on ernments). include inducements These might or confisca- leads to arrests the information where violators Weapons Launch Lima, Schools May see guns, tion ed., 13, East Jan. Times, Ventura Line, Cty. Los Angeles Hot in Tucson for on Guns Tips 1995, Bl, 5; col. Reward p. 7, 1995, B2; p. programs The Arizona Jan. Schools, Republic, with some surrender guns voluntary encourage to to Save Zaidan, Akron Rallies see amnesty, provision Swift, 2, IB; Legis- Dealer, 1995, The Plain Mar. Youths, p. Streets, Hartford to Guns Off Plan Get lators Consider A4; parents 29, 1992, Courant, p. penalties imposed Apr. g., see, e. Okla. child, for failure supervise or guardians 1995) who allow 21, § 858 Stat., (Supp. (fining parents Tit. §39- Ann. school); at Tenn. Code students to firearm possess 1992) (misdemeanor to allow stu for parents 17-1312 (Supp. school); Shooter: Gov. dent firearm Straight possess Pitts Assault Weapons, Reasonable Plan Control Casey’s bill); B2 Bai 14,1994, Post-Gazette, p. (proposed Mar. burgh Los Legislators’ Agenda, Anti-Crime ley, Top Measures ed., 1994, Bl, col. 2 Times, p. Mar. Orange Cty. Angeles Plans Local (same); Tighten New Could Gun-Control Krupa, Law, 20,1993, 29; The Boston laws Globe, June p. providing g., e. students, see, for suspension expulsion gun-toting 1994); § 16-1-24.1 § Ala. Code Ind. Code (Supp. 20-8.1-5-4(b)(1)(D) 158.150(1)(a) (Michie (1993); § Stat. Ann. Rev. Ky. § for ex 1992); (1994), Wash. Rev. Code 9.41.280 or programs Martin, with see assignment facilities, pulsion special Leg islators Poised to in Schools, Take Harsher Stand on Guns (automatic The Seattle Bl Times, Feb. p. year-long for students with expulsion intense guns semester-long reentry program).

The statute now before us forecloses the from ex States their perimenting own in an area exercising judgment to which States claim lay by right history expertise, and it does so an the realm of regulating beyond activity commerce in the and usual of ordinary sense that term. The of this tendency statute to in state areas displace regulation of traditional state concern is evident from its territorial op eration. There are 100,000 over and secondary elementary schools in the Education, United of States. See U. S. Dept. National Center for Education Statistics, of Educa Digest (NCES 1994) (Tables 94). tion Statistics 73, 94-115, 63, Each of these now has an invisible federal zone extending (often 1,000 feet beyond boundaries irregular) school In property. some communities no doubt it would be difficult to without navigate on those zones. Yet infringing these throughout areas, school officials would find their own programs in prohibition guns danger displace ment by federal authority unless the State chooses to enact a rule. parallel

This is not a case where the of federalism has etiquette been violated a formal command from the National Gov- New ernment the State to directing enact a certain cf. policy, York States, 505 U. S. 144 (1992), or to its organize governmental cf. FERC v. Missis- functions in a certain way, sippi, 456 U. atS., 781 (O’Connor, J., concurring judgment part dissenting part). While the intrusion on state sovereignty not be may as severe in this instance as in some of our recent Tenth cases, Amendment the intrusion is none- theless significant. Absent a connection stronger or identi- fication with commercial concerns that are central to the Commerce Clause, that interference contradicts the federal balance the Framers and that this designed Court is obliged to enforce.

For these reasons, I in the join opinion and judgment the Court. Thomas, concurring.

Justice the Commerce today properly concludes The Court gun authority prohibit Congress grant not does Clause attempted to do school,as it possession feet of a within 1,000 101-647, L. Pub. Zones Act in the School Gun-Free sepa- majority, Although join I write I 104 Stat. rately far from law has drifted our case observe that fu- understanding In a original of the Commerce Clause. juris- temper ought our Commerce Clause case, ture we more of our prudence makes sense that both in a manner original to the under- more faithful law and is recent case standing Clause. may regulate only not “Com

We have said that among I, States,” Const., Art. the several merce . . . § anything effect” that has “substantial but also cl. logical extreme, test, if taken its commerce. This such aspects “police power” of give Congress all over would grips Unfortunately, have never come to we American life. implication Al our effects formula. of substantial with this applied though supposedly effects have the substantial we readings always rejected past years, we have test for the 60 power scope that of federal and the of the Commerce Clause police power; permit Congress cases to exercise a our would power. quite are real limits to federal are clear that there States, 144, See New York v. United (“[N]o ‘[t]he disputes proposition that Constitution one the ”) powers’ (quoting a Federal of limited created Government (1991); Gregory Maryland 501 U. v. S. Ashcroft, (1968); Laughlin Wirtz, 392 NLRB & v. Jones Georgia, Corp., Cf. Chisholm v. Steel 301 S. U. J.) (“Each (1793) (Iredell, 419, 435 State the Union Dall. sovereign powers is the It must neces to all reserved. sarily any so, be have no claim to because the States them”) authority but the have such as States surrendered to deleted). (emphasis point, major Indeed, on this crucial the ity agree principle: Breyer and Justice The Federal power. nothing approaching police Government has Com- pare post, ante, 556-558, with at 624. principal that limits

While dissent concedes there are power, sweeping to federal nature of our current test argue Congress regulate gun to enables dissent that can possession. regulate But it seems me that the by authority encompass “commerce” can no means over mere gun any possession, empowers more than it the Federal Gov- regulate marriage, littering, cruelty ernment ani- throughout quite mals, the 50 Our States. Constitution properly such leaves matters to not- States, the individual withstanding these activities’ effects interstate com- Any interpretation merce. Commerce Clause suggests regulate even could is such matters need reexamination. appropriate In an case, I believe that we must re- further eye our consider “substantial effects” test with an toward constructing history a standard that reflects text totally rejecting the Commerce Clause without our more jurisprudence. recent Commerce Clause Today, merely support however, I the Court’s conclusion history with a discussion of the text, structure, analysis early My Commerce Clause an our case law. goal simply departed is to show far how we have from the original understanding and to demonstrate that the result today we post, reach no means “radical,” see at 602 dissenting). point J., I also want to out ne- (Stevens, cessity refashioning a coherent test that does not tend to “obliterate the distinction between is what national and what is completely government.” local and create a centralized Laughlin Corp., Jones supra, & Steel at 37.

I original At the time the Constitution ratified, was “com selling, buying, bartering, merce” of consisted and as well as transporting purposes. for these 1 Johnson, See S. A Die (4th 1773) (defining Language

tionary English ed. of the exchange thing an one for of “Intercourse; as traffick”); Bailey, thing; interchange any N. trade; other; (26th Dictionary English ed. Etymological An Universal (“trade Dictionary 1789) Complete traffic”); A Sheridan, T. (6th 1796) (“Exchange of English Language one ed. of the traffick”). understanding This thing trade, another; for literally etymology word, which support in the finds English Diction 3 Oxford merchandise.” See “with means “merchandise”). 1989) (2d (com ary “with”; ed. merci— — discussed and Anti-Federalists fact, Federalists In when they period, during often the ratification Clause Commerce sense) (in selling/bartering in and commerce trade its used (J. (as Jay) p. 22 terchangeably. 4, The Federalist No. See friendship serting our when our cultivate that countries will Government);1 regulated by id., prudently Federal “trade” (A. Hamilton) “competitions (discussing 7, 39-40 No. at “regulations resulting from state States commerce” between (J. Madison) trade”); (asserting that it 40, id., No. “acknowledged object that the of the Convention .. . anwas general gov regulation to the trade should be submitted ernment”); Farmer No. in Pam of Federal Lee, Letters (P. phlets States 319 Ford of the United on the Constitution 1888); People of the State Smith, An Address to the ed. id., New-York, at 107. expect, used in the term “commerce” was

As one would productive such as manufac- activities contradistinction to example, turing agriculture. Hamilton, Alexander agriculture, repeatedly commerce, manufactur- treated g., ing separate See, The Federalist endeavors. e. three (referring “agriculture, commerce, manufac- 36, at 224 No. tures”); (distinguishing commerce, arts, id., at 133 No. industry); (asserting id., at interests). that commerce and No. agriculture have The same distinctions shared E. All references to The Federalist are to the Jacob Cooke 1961 edition. g., See, e. ratification conventions. made the state were on the Adoption in the State Conventions Debates Several 1836) (hereinafter (J. ed. 57 Elliot the Federal Constitution of id., at 336 Debates) (T. convention); Dawes at Massachusetts convention). (M. York New Smith into commerce sense of Moreover, a modern interjecting and structural textual significant generates the Constitution “commerce” one cannot replace For example, problems. manufacturing. such a different type enterprise, with take cannot car, assembly a manufacturer produces When Tribes.” the Indian nation” or “with “with foreign place or other nations from different Parts come States may time, at one been the flow of commerce hence have may Agricul- at a discrete site. place takes manufacturing but of goods; involve the ture and manufacturing production articles. traffic in such commerce encompasses the term also that The Port Preference Clause suggests busi- rather than denoted sale and/or transport “commerce” Preference Clause, “[n]o that According ness generally. or Revenue be Commerce given any Regulation shall S. of another.” U. the Ports of one State over those is to conceive Const., I, § Art. cl. 6. it possible Although one that farming prefer regulations manufacturing that over the more natural another, reading port from its prohibits using Clause Congress favored channel commerce certain through ports. ain

The Constitution not uses the word “commerce” only does narrower sense than our case law it also suggest, might has over authority not that support Congress proposition all activities commerce. affect” interstate “substantially does not may Commerce Clause2 state Congress speak perhaps Even to “the Commerce the actual Clause” obscures scope original matter, Congress of that As an not have au Clause. did commerce; thority regulate only “regulate all could Commerce States, foreign Nations, among with the Indian several with § 8, Const., I, U. Although precise Tribes.” S. Art. cl. 3. line between with affect commerce substantially matters that “regulate States, and with the several Nations, and among foreign itself tempo In the Constitution contrast, Indian Tribes.” that “affect” Congress’ amendments would rarily prohibited or to the slave trade to or restrict lack of authority prohibit Clearly, Art. V. direct taxation. enact unproportioned that contained have a Constitution Framers could drafted that commerce” Clause had affects interstate “substantially been their objective. Clause,'

In to its under the Commerce addition powers “neces- enact laws as are to such has Congress authority its to power regu- to into execution carry and sary proper” Const., the several late commerce States. among of con- this I, 8, understanding § Art. cl. 18. But on Court’s two of Con- Clauses, many these under gressional power I, 8,§ are wholly under Art. other enumerated gress’ powers all matters After if all, regulate superfluous. Congress may commerce, is no need for affect there substantially enact bankruptcy that Congress may Constitution specify fix the and laws, 4, weights or coin and standard money cl. coin or counterfeiters of United States measures, cl. punish Likewise, would not need the securities, cl. 6. Congress roads, and post to establish offices separate authority post cl. 7, or to cl. grant patents “punish copyrights, Seas,” Piracies and cl. 10. high Felonies committed It not even raise and an might power need support els. 12 and Army Navy, fewer would en- people in commercial if gage that a shipping they thought foreign could expropriate Indeed, their with ease. property if could matters that affect Congress regulate substantially commerce, interstate there would have been no need to spec- interstate/foreign purely commerce and intrastate commerce was hard to draw, the attempted Court adhere to years such a line for the first 150 infra, of our Nation. See at 593-599. regulate ify com- can international trade and surely understood, merce with the Indians. As the Framers substantially other branches of trade affect interstate these commerce. § simply, (including portions much if I,

Put not all of Art. itself), surplusage if Clause would be Con Commerce authority gress given been over that substan had matters interpretation tially affect interstate An of cl. 3 commerce. § superfluous simply that makes the rest of 8 cannot be cor jurisprudence Yet this has rect. Court’s Commerce Clause just interpretation: power an have endorsed such The we § Congress I, accorded has swallowed 8.3 Art. appended

Indeed, if a “substantial effects” test can be why every the Clause, the Commerce not to other of singling out Federal Government? There is no reason for special Accordingly, the Commerce Clause for treatment. Congress regulate “substantially af- could all matters that Army Navy, bankruptcies, collection, fect” and ex- the tax §8 penditures, and so In all case, on. that the Clauses mutually overlap, something Founding we can assume the Fathers never intended. authority scope congressional

Our construction of the problem turning coming has the additional close to Tenth Amendment on its case law could be read head. Our powers expressly pro- to reserve to the United all not States by together, hibited the Constitution. Taken these funda- problems very mental should, least, textual at the convince us that the “substantial effects” test should be reexamined. powers There are other granted I, 8,§ to Congress outside of Art. that may wholly superfluous become as well due to our distortion of the Com instance, merce Clause. For Congress plenary power has over the Dis trict of Columbia and the Const., I, 8, § territories. See U. S. Art. cl. IV, 3,§ and Art. grant cl. 2. The comprehensive legislative power over Nation, certain areas of the conjunction when read in with the rest of Constitution, further confirms that plenary was not ceded authority over the whole Nation.

II campaign during exchanges reveal ratification The fed- relatively and of Clause limited reach of Commerce Founding power generally. confirmed Fathers eral (even many have sub- matters that would of life most areas commerce) the reach would remain outside effects on stantial affairs would continue Such Federal Government. of the of the control States. under the exclusive be Early commerce, manufactur- Americans understood intimately agriculture, ing, were activities, while distinct dependent other—that each “substan- on each related produced tially items all, After affected” the others. primary articles of com- were the farmers and manufacturers as a result was more robust merce at the If commerce time. superintendence, could and manufacturers farmers of federal attempted Ellsworth Connecticut Thus, benefit. Oliver regulating commerce. the benefits of farmers of convince ready depend property demand and riches on a “Your you annually spare,” produce generous price he can for the flourishes and exist “where trade and these conditions wrote, produce freely export the can when the merchant highest price. country” pay A Land- nations that will 1787, in 3 Docu- Courant, 5, Nov. 1, holder No. Connecticut mentary History 399 the Ratification Constitution 1978) (hereinafter (M. History). Documentary Jensen ed. (A. Hamilton) (“[Dis- The Federalist at 219 See also No. cerning citizens are well aware that the mechanic and manu- enterprise facturing arts the materials of mercantile furnish immediately industry. Many and of them indeed are con- operations They that nected with the of commerce. know friend”); patron id., the merchant is their natural at 221 (“Will disposed not the be to cultivate merchant... ... manufacturing interests of the mechanic and arts to which allied?”); nearly Jerseyman: his commerce is so A To the Citi- Jersey, Mercury, 6,1787, zens of New Trenton in 3 Doc- Nov. umentary History (noting agriculture that will serve as commerce”); Jersey Journal, Marcus, The New a “source of (both farmer id., the mechanic and the 14, 1787, Nov. commerce). prosperity Davie, William from the benefit delegate Convention, illustrated the to the North Carolina [agriculture “Commerce, sir, is the nurse of close link best: planter manufacturing]. furnishes the The merchant himself, articles as he cannot manufacture with such produce. Agriculture cannot finds him a market for his mutually depend- languishes; they if commerce are flourish ent on each other.” Debates 20. despite being agriculture, that manufac-

Yet, well aware turing, substantially commerce, affected and other matters founding generation authority over all these did not cede Congress. Hamilton, instance, for acknowl- activities regulate agri- edged that the Federal could not Government culture and like concerns: justice private the citi-

“The administration of between agriculture supervision State, zens of the same things nature, and of other concerns of a similar all those proper provided in short which are to be local legislation, ju- general can never of a be desirable cares risdiction.” The Federalist No. at 106. unlikely

In the event that the Federal Government would attempt authority matters, to exercise over such its effort nugatory.” “would be as it would troublesome as be Ibid4 (E. convention) (The Virginia pro Cf. Debates 40 at the Pendleton posed local, Federal Government “does particu not intermeddle with the Congress legislate lar affairs of the states. Virginia? Can for the state of Can make a law altering transferring property, [it] the form of or the rule id., (J. descents, Virginia?”); Virginia at 553 Marshall at the conven tion) (denying Congress affecting could make “laws the mode of trans ferring property, contracts, claims, or between citizens of the same state”); (A. Hamilton) The Federalist No. (denying at 206 change tax); could laws of pre-empt descent or could a land A Native Virginia: upon Observations Proposed Government, the Plan of Federal 2, Apr. 1788, (States in Documentary History 9 authority have sole property”). over “rules of power

The comments of Hamilton and others about federal truth the reflected the well-known that new Government only powers the limited and would have enumerated found (A. g., 2 e. Debates See, the Constitution. 267-268 Hamil- Convention) (noting ton at York that there would be New just rejecting the cause for Constitution if it would enable [a State’s] abrogate “alter, the Federal Government ... [or] penetrate the and criminal institutions recesses civil respects, private in all conduct life, control, domestic (J. individuals”); Madison); No. 45, The Federalist (J. Madison) Convention); (Virginia R. Debates 259 Sher- Huntington, Sept. Ellsworth, Letter to Governor man & O. Documentary History Speech 352; 1787, Wilson, in 3 J. 26, id., Yard, House Oct. at 167-168. the State they Agriculture since were not surren- manufacture, Government, were state concerns. See dered to the Federal (A. Hamilton) (observing 212-213 34, at The Federalist No. encouragement agriculture and manu- that the “internal object expenditure). of state Even before was an factures” apparent it Amendment, was that passage of the Tenth only granted” powers possess those “herein would § I,Art. of the Constitution. the rest . grant au- was meant federal Constitution Where the activity substantially affecting interstate thority an over contains an enumerated commerce, the Constitution activity. knew Indeed, the Framers particular that over § powers in dealt with many enumerated of the other that substantially commerce. affected interstate matters bankruptcy power spoke as instance, Madison, regulation of com- “intimately connected with being Hamilton Likewise, at 287. No. The Federalist merce.” people or even “[i]f commercial to be a urged we mean as soon we must endeavour side, Atlantic on our secure be navy.” Id., 24, at 157. possible to have No. Founding aware what Fathers were well short, In realities.’” See “‘economic . . . principal dissent calls

593 post, (quoting at North American Co. v. J.) (Breyer, (1946)). though boundary SEC, 327 Even may ignore between commerce and other matters “economic arbitrary reality” some, and thus seem to we artificial respect must nevertheless a line that not constitutional does grant Congress power substantially over all that affects in- terstate commerce.

Ill early principal understanding If the dissent’s of our case might law were there some this correct, be reason doubt original understanding view of the Ac Constitution. cording opinion dissent, to that Chief Justice Marshall’s Ogden, (1824), Gibbons v. 9 Wheat. established that Con gress may “significantly control all local activities affect that post, excep commerce,” interstate And, at 615. “with the wrong subsequently tion of one turn has corrected,” this “traditiona[l]” interpreting been the method the Com (citing Post, merce Clause. Gibbons (1941)). Darby, States 100, 116-117 my wrong holding In view, the dissent is about reasoning of Gibbons. this Because error leads the dissent years to characterize first of this Court’s case law as “wrong compelled a put years I turn,” feel the last 50 proper perspective.

A In Gibbons, the Court examined whether a federal law ships engage “coasting that licensed pre- in the trade” empted granting 30-year a New monopoly York law to Rob- Livingston ert navigate and Robert Fulton the State’s waterways steamship. concluding In that did, it Congress Court regulate noted “navigation” that could be- “[a]ll uniformly cause America ... has understood, word comprehend navigation. ‘commerce,’ to It was so under- stood, and must have been so understood, when the constitu- tion was framed.” 9 Wheat., at 190. The Court also ob- “among over commerce

served federal com- regulate could several meant States” Because a portion within State. merce partly conducted almost would foreign commerce of interstate States, federal power one or more take within always place would necessarily and commerce over interstate foreign Id., at extend into the 194-196. States. to make clear time, took pains

At same the Court great the “which is com- could not regulate commerce that Congress man man on between internal, which is carried pletely State, the same different State, parts or between Id., at 194. other States.” not extend to or affect which does not that the Constitution Moreover, might while suggesting commerce, interstate or foreign to regulate States permit laws, laws, quarantine the observed that “[inspection Court laws for as regulat- health well every description, laws but a of a were small part the internal commerce State” ing surrendered to not “of that immense mass of . . . legislation Id., From an mo- early general government.” notion that can ment, Congress regu- the Court the rejected the commerce. That late that affects interstate everything in- the numerous state commerce the States and internal had substantial effects and health laws spection, quarantine, Nevertheless, be on interstate cannot doubted. commerce the were not “surrendered to they general government.” the first miscon course, Of dissent is not principal Gib strue For has stated that Gibbons. instance, Court bons with “described federal commerce a breadth power Filburn, Wickard never exceeded.” 317 U. yet S. States, also Perez v. 402 U. See S. Wickard, Darby that (claiming with “the broader view of the Chief Commerce Clause announced Justice restored”). I Marshall had been this misread believe Gibbons. stems from two ing statements First, the Court made the uncontroversial claim that federal does not “commerce” that “does power encompass not Wheat., extend to affect other at 194 States.” added). (emphasis principal From this statement, activity dissent infers that an interstate whenever affects necessarily regulate commerce, it follows that can such course, activities. Of Chief Justice Marshall said no thing such and the inference dissent makes cannot be drawn. “affect[s]” interpretation

There is a better much lan- guage: Because Court had earlier noted that the com- wholly merce did not commerce, extend to intrastate acknowledging although the Court was the line between interstate/foreign intrastate and be would difficult authority draw, federal not could be construed to cover purely intrastate commerce. Commerce that did not affect “among another State could never said to be be commerce the several States.” adopt reading,

But even if were one to the dissent’s the language, “affect[s]” permits Congress regulate at to most, only substantially intrastate commerce that affects inter- foreign state and There is commerce. no reason believe that asserting Congress Chief Justice Marshall was that regulate could all activities affect that interstate commerce. See ibid.

The second source of confusion stems from the Court’s praise power for the Constitution’s division of between the States and the Federal Government: genius government

“The and character of the whole be, seem to applied that its action is to be to all the external concerns of nation, the and to those internal generally; concerns which affect the States but not to completely those particular which are within State, which do not affect States, other and with which it is necessary not purpose for executing interfere, the general powers some of government.” the of the Id., at 195. making merely un the well was passage, the Court

In this of “na matters commits point the Constitution derstood the Congress matters to “local” and leaves concern to tional” Congress saying that whatever was not The Court States. object of federal an becomes matter is a national believes enumerated are concern of national The matters control. copyrights, patents, uni taxes, war, the Constitution: types bankruptcy, com of naturalization form rules § em generally Gibbons’ I,Art. 8. so See merce, and on. many regulate Congress not could phatic statements that did not that the Court confirm that affect matters Congress granting control as Clause read the Commerce generally.”5 Gibbons “affect the States matters that over principal would dissent simply the as cannot be construed have it.

B prior Deal that charac- New aware of no cases I am flowing Clause from Commerce terized My review sweepingly effects test. our substantial as does effects test is that the substantial case law indicates century. innovation of the 20th but an writing Marshall, Gibbons, Chief Justice Even before (1821), Virginia, noted 6 Wheat. 264 Cohens v. Court punish general right Congress murder com had “no any it was and that States,” id., mitted within generally,” congress punish id., at felonies “clear that cannot only qualification could was that Court’s pow enjoyed plenary places where it enact such laws for Id., at 426. over District of Columbia. instance, ers—for robbery, gun ordinary murders, or or Thus, whatever effect (or any might possession on have on interstate 5 opinions during Chief Justice Mar of the other Commerce Clause None Clause, even tenure, “dormant” Commerce shall’s which concerned the substantially authority af Congress over all matters suggested that had (1827); Will Maryland, fecting commerce. See Brown v. 12 Wheat. 419 Co., 2 Pet. 245 son v. Black Bird Creek Marsh

597 concern) other of federal was irrelevant to the subject ques tion of power.6 congressional Dewitt,

United States (1870), 9 Wall. marked the first time the Court struck down a federal law as the exceeding the Commerce In a power conveyed Clause. by two-page the a law Court invalidated nationwide opinion, prohibiting all sales of and In so the illuminating doing, oils. naphtha Court remarked that Commerce “has been Clause always terms; as understood limited its and as a virtual denial of with interfere the internal trade and business any power Id., law in separate States.” 44. The question was which could have con- “plainly regulation police,” stitutional where had exclusive application-only Congress Id., such also authority, territories. at 44-45. See Tax (1867) Cases, License 462, Wall. 470-471 (Congress cannot interfere with the internal commerce and business Cases, State); Trade-Mark U. S. 82 (Congress noting Act, It Congress, is worth in the first federal criminal did prohibitions against not establish nationwide and murder the like. See 30, 1790, 9, Apr. sure, Act of Congress ch. Stat. 112. To be outlawed murder, manslaughter, maiming, larceny, only and but when those acts were either territory part committed on United States not of a State or Const., on high I, § seas. See Ibid. Art. cl. 10 (authorizing seas); §3, piracy and high IV, outlaw felonies on Art. cl. 2 (plenary authority over United territory property). States When Congress did laws, enact pursuant nationwide criminal it acted to direct grants authority Compare found Apr. Constitution. Act of §§ supra, (prohibitions against 1 and 14 treason the counterfeit ing securities), Const., of U. S. with U. S. I, § 8, Art. cl. (counterfeiting); III, 3, (treason). § Art. cl. 2 Notwithstanding any substantial effects that murder, kidnaping, possession gun might have had com interstate merce, Congress understood that it could not establish nationwide prohibitions. Likewise, there were no early laws in Congresses regulated manufacturing agriculture. any Nor was there pur- statute that ported regulate activities with “substantial effects” on interstate commerce. may not estab- regulate and thus internal

cannot registration). trademark lish national (1895), Knight Co., E. C. In States v. United monopolize attempts the manu- to held mere that this Court regulated pursuant sugar to the Com- could not be facture of Raising of the discussions echoes Clause. merce relationship regarding com- between intimate Framers manufacturing, that declared the Court merce “Com- part Id., it.” manufacture, and not merce succeeds approvingly quoted Kidd from v. The also at 12. Court (1888): S. Pearson, 128 U. popular mind, common to the distinction is more

‘“No political clearly expressed liter- in economicand more and commerce manufacture than between ature, that [commerce] includes it be the term If held that .... regulation intended manufactures as are of all such subject in the fu- commercial transactions to be the impossible deny also include that it would ture, it is contemplate productive same industries all thing. be would in- result would be only power regulate, not manufac- ... with the vested raising, agriculture, horticulture, also stock tures, but mining every branch of short, fisheries, domestic —in 14., industry.’” Knight, supra, human E. C. types production power “com- If to these federal extended paratively operations little of affairs would be business Newberry Id., left for state at 16. also control.” See (1921)(“It States, 256 is settled ... that regulate foreign interstate and commerce does agricul- not reach whatever is essential Without thereto. manufacturing, mining, etc., exist, commerce could not ture, subject fact does but this not suffice to them to control agriculture, Congress”). manufacturing, Whether or not substantially or other matters affected interstate commerce was irrelevant. recently

As as 1936, Court continued to insist that the wholly Commerce Clause did not reach the internal business of the States. See Co., Carter v. Carter Coal 298 U. S. (1936) (Congress may regulate not mine labor because relation”); “[t]he employer employee relation of is a local Poultry Corp. see also A. L. A. Schechter States, v. United (1935) may (holding Congress 543-550 not regulate intrastate sales of sick chickens or the labor of em- sales). ployees poultry involved in intrastate The Federal simply subjects regardless Government could not reach such of their effects on interstate commerce. simple point:

These cases all establish a From the time of the ratification of the mid-1930’s, Constitution to the it was widely granted Congress understood that the Constitution only powers, notwithstanding limited the Commerce Clause.7 question wholly sepa Moreover, there was no that activities gun possession, beyond rated from business, such as were power. anything, “wrong the reach of the commerce If departure turn” was the Court’s dramatic in the 1930’sfrom century precedent. and a half of IV Apart vintage corresponding from its recent and its lack any grounding original understanding in of the Consti- tution, the substantial effects test suffers from the further sure, congressional To be power pursuant to the Commerce Clause was alternatively narrowly described less narrowly or during more this 150- year period. Compare Coombs, States 12 Pet. (commerce power acts, “extends to land, such done on which interfere with, obstruct, prevent or the due power exercise of the regulate [inter state and international] stealing commerce” such goods from a beached ship), with Co., United States Knight v. E. C. (1895) (“Con 1, 13 sell, buy, tracts to exchange goods transported to be among the several States, the transportation and its may regulated, instrumentalities ... be but this they is because part commerce”). form of interstate trade or Dur ing period, this however, this Court never held that regu could everything late that substantially affects commerce. Congress police grant over appears it

flaw that any argument if there were oral asked at When the Nation. at a was Clause, the Government limits to the Commerce principal Arg. Likewise, words. Tr. Oral loss for muster it cannot limits, are but insists that there dissent implic- example. dissent Post, Indeed, at 624. even one reading it criticizes itly no when has limits its concedes uncertainty “threatening] legal in an area of the Court reasonably Post, at 630. well settled.” . seemed law that. . certainty: advantage It dissent’s standard The one regu- may analysis everything be that under its is certain guise of the Commerce Clause. lated under part, in flaw, this test suffers from The substantial effects principle.” “aggregation so-called Under of its because Congress regulate whole can statutes, of activities” “class “inter- categories not either that are themselves of activities applying we test, effects ask In or “commerce.” state” substantially af- as a whole the class of activities whether specific activity any commerce, not whether interstate fects when considered isolation. the class has such effects within (if Maryland class of activ- Wirtz, S., at 192-193 392 U. See ” “ may power,’ courts not of federal ities is ‘within reach trivial) Darby, (quoting applications individual excise 120-121). at S.,U. stopping aggregation principle no clever, is but has Suppose agree gun possession

point. within all would that substantially commerce, of a not affect 1,000 feet school does (knives, weapons generally possession but of etc.) brass Under our substantial ef- knuckles, nunchakus, does. single gun though out doctrine, fects even cannot possession, prohibit weapon possession generally. it can always enough broadly But one can draw the circle to cover activity that, not have an when taken would sub- isolation, jurisprudence, stantial effects on commerce. Under our if Congress passed “substantially an omnibus affects interstate purporting regulate every aspect commerce” statute, apparently existence, human the Act would be constitutional. trivial sections may govern only though particular Even matters the statute activities, aggregate regulates affect commerce. substantially V of the understanding This extended discussion original half law does not necessarily our first and a of case century abandonment of our more recent opini wholesale require test that our substantial effects It reveals simply ons.8 and from our early far removed from both the Constitution not be viewed law and that should case Court’s opinion turn” that must be corrected as “radical” or another “wrong also that we ought in the future.9 The analysis suggests our Commerce Clause temper jurisprudence. understanding, I Although might willing original I return be many day in the to undertake

recognize that believe that it is too late years. Consideration of stare past fundamental reexamination may wipe the interests convince us that we cannot decisis reliance slate clean. v. New majority’s opinion fairly compared Nor can the be to Lochner York, J., dissenting). (Souter, post, 198 U. S. 45 See at 604-609 cases, process” recent due to Unlike Lochner and our more “substantive “judicial policy judg day’s only decision the Constitution and hot enforces Notwithstanding post, See at 607. dis ments.” Justice Souter’s cussion, only but an inevitable “‘commercial’ character” is not a natural “ground post, (emphasis of at 608 Commerce Clause distinction.” See added). Our invalidation of the Gun-Free School Zones Act therefore falls comfortably proper reviewing legislation within our role in federal to de congressional by termine if it exceeds the Constitu authority as defined put [Congress] tion itself. As John Marshall it: “If were to amake law by any powers enumerated, not warranted of the it would be considered by judges infringement as an they of the Constitution which are to (before guard They .... would declare it void.” 3 Debates 553 (J. Virginia convention); ratifying 44, see also The Federalist No. at 305 Madison) (asserting that if powers by exercises “not warranted meaning” judiciary [the true Constitution’s] will defend the Constitu tion); id., (A. Hamilton) 78, No. (asserting justice at 526 that the “courts of to be are considered as the bulwarks of against legis a limited constitution encroachments”). Where, here, lative there or controversy, is a case “misstep,” post, there can be no enforcing the Constitution. our to repudiate willing Justices are dissenting Unless the federal nature of the limited of understanding long-held recon- be too, willing must that they, I would think power, If we wish case. in a future effects test substantial sider the not cede police power to a does to be true Constitution bound- Clause’s Government, our Commerce the Federal “ ‘commensurate as being be “defined” cannot aries simply ” to let intended self-consciously needs’ or the national with economic itself against “‘defend Government the Federal of the destructive inimical or decrees forces that Congress ” post, J., dissent- at (Breyer, See national economy.’ SEC, 327 U. 705). American Co. v. S., at North ing) (quoting It is a no test at all: of federal power Such a formulation blank check. our we must modify I think juncture,

At an appropriate enough it is Today, easy Clause jurisprudence. Commerce not empower Congress does certainly that the Clause say feet of a school. 1,000 within to ban gun possession Stevens, dissenting. Justice Na foreign future with

The welfare of our “Commerce § Const., I, 8, Art. States,” several tions, among education on the character cl. is vitally dependent with Justice I therefore agree entirely our children. Breyer’s has ample power explanation why Congress firearms in or near just possession prohibit schools — from harms posed as it the school environment may protect I also controlled substances such as asbestos alcohol. of the radical char with exposition Justice Souter’s agree with the discred acter of the and its kinship Court’s holding version of substantive due Cf. ited, pre-Depression process. City Tigard, (1994) (Ste Dolan 4 05-411 I vens, J., believe, however, Court’s dissenting). decision merits this additional extraordinary comment. are both and articles that can Guns articles be used to restrain commerce. Their is the con possession

603 either sequence, directly indirectly, activity. commercial In commerce in my judgment, Congress’ power regulate firearms includes guns prohibit possession use; at location because of it their harmful any potentially follows that also their necessarily prohibit Congress may markets. The market for the possession particular pos is, session children handguns by school-age distressingly, substantial.* Whether or not the national interest in elimi that market would justified have federal nating legislation 1789, it does surely today. Souter,

Justice dissenting. In congressional under reviewing legislation Com merce we defer is Clause, to what often a merely implicit sub congressional its addresses a judgment regulation interstate “if is ject there substantially affecting for Hodel v. rational basis such any Virginia finding.” Inc., Assn., & Reclamation Mining 264, 452 U. S. Surface ICC, Preseault v. (1981); (1990); 494 U. see Mary 1, 17 S. Wirtz, land U. Katzenbach 183, (1968), v. S. quoting McClung, v. 303-304 If that congres sional is reason, determination within the realm of “the only for remaining question judicial is whether ‘the means inquiry chosen by Congress to the reasonably [are] end adapted per mitted Constitution.’” Hodel v. Virginia Surface by Assn., Inc., & Reclamation Mining at supra, quoting Motel, Heart Atlanta Inc. States, v. (1964); ICC, also Preseault see at 17.1 supra, *Indeed, there is evidence that firearm by manufacturers —aided a fed grant specifically

eral targeting schoolchildren as consumers dis —are tributing, schools, hunting-related styled videos “educational materials grades 12,” four through Herbert, Reading, Writing, Reloading, N. Y. Times, 14, 1994, A23, Dec. p. col. 1. case, In this question no has ends; been raised about means and only issue about the effect of guns school zone on commerce. legislative rationally deferring based practice

The of judicial FCC v. paradigm restraint.” judgments of “is a (1993). In 307, 314 Communications, Inc., 508 U. S. Beach it our Clause, reflects judicial the Commerce review under competence respect of the institutional assigned subject expressly and our to it the Constitution a Congress’s legitimacy appreciation comes from of the open accountability dealing to a political in with matters range possible id., Hodel 313-316; at v. of choices. See wide supra, Mining Assn., Inc., Virginia & Reclamation Surface Co., 304 S. Products U. 276; States v. Carotene at (1938); Optical Okla., v. Lee cf. Williamson 147, 151-154 of 483, 488 Inc., 348 U. S. however, brief overview of thus, as even a It not ever was past century history during reminds Clause Commerce competence primacy respect for the modern us. The only affecting developed Congress in commerce matters chastening experiences, most when of this after one Court’s untenably expansive perforce repudiated an earlier and it congressional judicial derogation conception review history’s sequence power. will serve to A look at today’s tugs leading course, decision the Court off show how developments suggest opportunities for further it to with the rule of restraint which the would be at odds wisely still states adherence. Court

I Notwithstanding recognition of a broad com Court’s (1824) Ogden, 1, 196-197 merce Gibbons v. Wheat. J.), (Marshall, Congress saw C. few occasions exercise that power prior generally 2 Reconstruction, Warren, see C. (rev. Supreme History Court United States 729-739 1935), really passage ed. and it was Interstate opened age congres Act Commerce of 1887 that new authority Commerce sional reliance on the Clause for to ex general police powers level, id., ercise at the national see at fair amount the Court upheld Although 729-730. see, power, the commerce within being ensuing legislation g., Wallace, (1922) an e. (upholding S. 495 258 U. Stafford industry); meat packing in the trade practices Act regulating Shreveport Cases, Rate Inter (upholding interstate and order to equalize Commerce Commission state supra, Warren, 729- rates); rail see intrastate generally to 1937 is better of the century turn 739, the from period notions formalistic a series of cases highly noted for applying and economic legis social invalidate federal of “commerce” g., Co., 238, e. v. Carter Coal Carter 298 U. S. lation, see, in (1936) labor Act unfair practices 303-304 prohibiting (striking not and “production,” of “mining” coal industry regulation Poultry Corp. v. United A. A. L. Schechter “commerce”); States, (1935) 495, (striking congressional 545-548 only interstate commerce of activities affecting regulation Dagenhart, (1918) Hammer v. U. 251 247 S. “indirectly”); Act in interstate prohibiting shipment (striking child labor because at factories using manufactured goods “commerce”); Adair not the Act regulated “manufacturing,” States, 208 U. S. 161 (1908) v. (striking protection “commerce”). labor union as outside membership subject congres- These restrictive views of commerce in limiting the Court’s activism sional complemented It regulation. of state economic the enforceable scope the Court most this same during period familiar history economic legislation invalidated state social and routinely of Fourteenth Amendment under an expansive conception g., Liggett e. K. Louis Co. due v. See, substantive process. Baldridge, (1928) state 278 105 law (striking requiring U. S. Coppage owners to be licensed as pharmacists); pharmacy Kansas, (1915) v. 1 state law (striking prohibiting from not to their employers requiring employees agree York, Lochner New 198 U. labor S. join organizations); maximum state law (striking establishing working bakers). Tribe, hours L. American Consti- See generally 1988). (2d The of judicial Law 568-574 ed. fulcrums tutional in the notions of liberty prop- review these cases were whereas economics, characteristic of laissez-faire erty turned on what was ostensibly Commerce Clause cases limit but under each conception structural of federal power, for the first third review the Court’s character judicial of a scrutiny showed itself century exacting judicial economic ends and of the legislative choice of legislature’s means to reach selected them. coincidental, then,

It not that sea changes was merely of its under the Due Proc- Court’s conceptions authority virtually together, ess and Commerce Clauses occurred Parrish, with Hotel S. West Coast Co. v. U. NLRB v. Jones & Steel U. S. 1. See Laughlin Corp., and the Stern, Commerce Clause National Economy, 1933-1946, In Harv. L. Rev. 674-682 West Hotel, Coast the Court’s of a due challenge rejection process to a state law minimum for women and children fixing wages marked the abandonment of its of expansive protection contractual Two weeks later, freedom. Jones & Laughlin affirmed to authorize NLRB congressional power unfair The injunctions against labor Court’s find- practices. that the ing had a direct effect on regulated activity enough commerce has since been seen as the abandon- beginning ment, for of the formalistic distinction practical purposes, between direct and indirect effects.

In the these years following decisions, deference to legisla tive policy on commercial judgments became regulation the powerful theme under both the Due Process and Commerce Clauses, see United States v. Carolene Products Co., 304 atS.,U. 147-148, 152; United States v. Darby, U. S. 119-121 (1941); United States v. Co., 315 Wrightwood Dairy U. S. 118-119 (1942), and in due course that deference became articulate in the standard of review. In rationality due process the litigation, Court’s statement of a rational States Carolene v. United quickly. basis test came See v. Lee Optical Williamson also Co., Products 152; at see supra, o., The formulation supra, C parallel at 489-490. complete because later, only test came Clause Commerce and ac dichotomy effects elimination of direct/indirect v. Fil Wickard doctrine, of effects the cumulative ceptance States v. burn, United (1942); 111, 125, 127-129 far settled Co., 124-126, at so Dairy supra, Wrightwood as to over commerce issues of congressional pressing a test for without need phrase leave the Court any years legislative judgments. to rational deferring explicitly congressional however, challenge moment with came, discrimination racial authority to prohibit Commerce Clause Court accommodation, simply when the in places public “where we cases had implied: made what the earlier explicit testimony of the facts find that the legislators, light regu a chosen them, finding before have a rational basis for commerce, our scheme necessary protection latory McClung, end.” Katzenbach v. at an investigation supra; Darby, States v. 303-304, S., discussing U. States, S., 379 U. Motel, Inc. United see Heart Atlanta as under due Thus, commerce, process, at 258-259. under the recognition basis review rational expressed adoption for eco subjecting basis the Court had no sustainable judgments, nomic as such to regulation judicial policy back has no more turned half the Court past century (as review in the direction formalistic Commerce Clause was of commerce deciding sufficiently whether regulation direct) it has substan reasserting than inclined toward (as Lochner due pro tive of in the inflated authority process e. See, of v. g., Maryland tection contractual autonomy). States, 402 U. Wirtz, Perez United S., 190, 198; at S. U. v. Hodel Mining & Virginia Surface (1971); 151-157 Inc., Assn., Reclamation S., 452 U. at

II at both the however, a backward old today, glance There is treats deference under the rationality as the Court pitfalls, commercial or rule as gradation according subject nature of the immediate of the chal- subject noncommercial ante, See The distinction lenged 558-561. regulation. between is is not looks what commercial what patently much like the old distinction between affects directly what what it And the only touches act indirectly. the level of deference a line be- calibrating drawing by tween what commercial and what is less patently purely so will resemble the how much probably process deciding interference with freedom Thus, contractual was fatal. it seems fair to ask whether the taken the Court step by today does but a return to anything portend the untenable juris- from which the prudence Court extricated itself almost 60 years answer is not To be ago. sure, the reassuring. occasion for today’s decision reflects the end, not century’s its But if it seems anomalous that the beginning. of the United States has taken to school regulating yards, the Act in is still no more question remarkable than probably state of bake regulation In shops years event, ago. any there is no reason to the Court’s hope qualification rational basis review will be any more successful than the efforts at substantive economic review made our prede- cessors as the century began. Taking Court’s opinion Breyer on its terms, own has both explained Justice hopeless porosity “commercial” character as a ground Commerce Clause distinction in America’s connected highly and the economy, of this inconsistency with categorization our rational basis from precedents the last 50 years.

Further glosses rationality review, moreover, be may in the offing. Although this case turns on commercial char- acter, the Court gestures toward two other considerations it might sometime entertain in rational applying basis scrutiny (apart statutory obligation supply from a inde- element): pendent jurisdictional proof congres- of a does the subjects regula- sional statute deal with traditional state findings explicit tion, and does the statute contain factual supporting implicit the otherwise determination that activity regulated substantially affects interstate commerce? again, any appeal may Once these have de- considerations pends ignoring painful lesson learned in for nei- suggestions square ther the Court’s would with rational scrutiny. basis

A The Court observes that the Zones Act Gun-Free School operates traditionally subject legislation in two areas the States, education and enforcement of criminal law. The suggestion is either that a connection between commerce and subjects power remote, these or that the commerce is sim- ply subjects weaker when it touches on which the States historically primary legislators. sug- have been the Neither gestion may may is tenable. As for remoteness, it or not be wise the National Government to deal with education, surely but Justice has demonstrated that the com- Breyer prospects mercial of an illiterate State Nation are not rosy, argument hijack- and no be should needed to show that ing shipments cigarettes interstate can affect commerce substantially, though traditionally pros- even the States have robbery. ecuted And as for the notion that the commerce gets customary diminishes the closer it state con- flatly rejected, cerns, long ago. that idea has been not power, plenary. The commerce we have often observed, is Virginia Mining Hodel v. Assn., & Reclamation Surface supra, Darby, Inc., 276; at v. S., 114; States at U. Metropolitan see Authority, Garcia v. San Antonio Transit (1985); Ogden, 549-550 Gibbons 9 Wheat., put way 196-197. speaking Justice Harlan it this for the Maryland Court v. Wirtz: Federal in the implied doctrine no general

“There is national governments, the two that Constitution not to inter- so as its powers to exercise state, are each full exercise of powers free and with the fere Government, Federal that clear other. . . . [I]t override may a delegated power, within acting when ago As long interests .... state countervailing state to rest the contention [1925], put the Court the impor- ‘outweigh’ constitutionally might concerns regulating valid federal statute tance of an otherwise (citations and inter- S., 195-196 at commerce.” 392 U. omitted). marks quotation nal v. Gregory 114; at Darby, supra, also United States v. See States v. Carolene (1991); United 452, 460 501 U. S. Ashcroft, Co., 304 U. S., 147. Products at in the our reasoning any contrary authority is there

Nor in some instances rules clear statement cases imposing alter the state-national that would significantly legislation statement congres- a clear In the absence balance. to am- we have refused interpret design, example, sional legisla- to limit fundamental state federal statutes biguous at 460-464, supra, Gregory Ashcroft, tive v. prerogatives, that such through our being prerogatives, understanding as a are sovereign,” “powers State defines itself which “a 501 U. interfere,” S., does not with which Congress readily Likewise, faced with two inter- 460, plausible when at we of a criminal will statute, generally federal pretations to an in- take that does not force us impute the alternative full commerce tention to use its Congress regu- late conduct States. traditionally ably regulated by Enmons, United 396, (1973); 411-412 States v. U. S. See Bass, Rewis United States (1971); v. 349-350 U. S. States, v. United rules, however,

These are rules of merely clear statement relied interpretation, only be when the statutory upon Culbert, United States v. terms allow, statute Gregory supra, Ashcroft, (1978); 379-380 see 470; v. at supra, Bass, United States v. 346-347, at cases im historical reluctance to trench on plicating Congress’s state or to enter into legislative prerogatives spheres already Gregory supra, Ashcroft, occupied by States, v. at 461; supra, Bass, United States see Rewis v. 349; supra, States, at 811-812. are rules They for determining intent when legislation leaves intent subject question. But our hesitance to presume has acted to (when alter the state-federal status with a quo presented alternative) plausible has no relevance whatever to the en- whether it has quiry the commerce to so to do the power standard of review when judicial has Congress definitely meant to exercise that Indeed, allow our hesi- power. tance to affect the standard of review would inevitably de- into the sort of generate substantive review that the policy Court found indefensible 60 The years Court does not ago. (and maintain) assert could not that the commerce plausibly is power wholly devoid of congressional authority speak of any subject concern; traditional state if but congres- sional action is not forbidden when absolutely it touches such a it subject, will stand or fall on the Court’s depending view of the of the strength legislation’s commercial justification. And here once again raises history its objections that the Court’s previous essays overriding congressional policy choices under the Commerce Clause were ultimately seen to suffer two fatal weaknesses: when with Acts of dealing (as Congress distinct from state legislation to review subject under the theory dormant commerce power) nothing the Clause compelled activism, judicial about nothing as an judiciary institution it made a superior source policy on the subject Congress dealt with. There is no reason to expect lesson would be different another time.

B The findings. about legislative questions There remain view, 1342, 1363-1368 2 F. 8d expressed Court Appeals have been well (CA5 might in this case that the result 1993), findings guns if had made explicit different Congress commerce, and interstate effect on have a substantial schools ante, see that position, does not repudiate Court today have sub findings aided such court at 562-563. Might (or, an scrutiny exacting put to less this legislation jected if to such findings have deferred a court should way, other them)?2 answer to either question had made Congress are impor matter findings be no, although general must cases. for in difficult tant and to be hoped with a hard job, to look help It is natural only the commerce has exceeded a claim that reviewing in others. A chal- than is in some cases much harder haul- of interstate garbage regulation lenge congressional regula- resolve; congressional review would be easy ing difficult, both is more in school yards tion of gun possession less obvious and the link to interstate because In a relevant facts. initial ignorance because our to consider Court, (perhaps), I see no reason not Unlike the would findings, helpful reviewing in the chal Congress’s they might be insofar statute, legislation. later See the lenge though adopted this even in to 103-322, of Pub. L. Control and Law Enforcement Act Violent Crime (“[T]he § in 320904, 108 of violent crime school zones Stat. 2125 occurrence country; quality a the in our . . . has resulted in decline in education impact on commerce and this decline . . . has an adverse interstate the States; foreign Congress power, . commerce of the . . has under Constitution, provisions of the the interstate commerce clause and other safety integrity and of the Nation’s to enact measures to ensure the subsection”). findings, however, go The no schools enactment this expressing obviously implicit legis than what is in the substantive further lation, conclusory generality virtually nothing at such a level of as to add certainly judgment the record. The General exercised sound Solicitor placing significant particular afterthoughts. no reliance on Tr. of these Arg. 24-25. Oral one, we may

case this have to hard comparable dig make about what could Congress responsible judgment close, because the case be reasonably find, because may tend be familiar not to with the facts that judges may may not make it But close. while the ease of review vary may from it case, case to does not follow that standard of the review should much less fact vary, explicit findings even directly would address the standard. courts,

The for the as all not whether as question agree, is in fact that a predicate legislation Congress found partic- ular affects interstate The activity substantially commerce. such a no reason to legislation implies and there is finding, entertain claims acted ultra vires intention- Congress Nor is ally. whether was question correct Congress so finding. is whether only question legislative Vir- is within the realm of reason. See Hodel v. judgment ginia Assn., Inc., Mining & Reclamation S., 452 U. Surface Katzenbach at 276-277; S., at 303-304; v. 379 U. McClung, Railroad Retirement Co., Bd. Alton R. v. 295 U. 391- S. FCC v. Beach Com- J.,C. cf. (Hughes, dissenting); munications, Inc., (in S., at U. protection equal context, “those attacking rationality legislative classification have the burden to negate every conceivable basis which it is it[;] ... irrelevant might support entirely for constitutional purposes whether the conceived reason for the challenged distinction motivated actually legisla- ture”) (citations and internal Fer- omitted); marks quotation guson Skrupa, Williamson (1963); 731-733 Co., v. Lee Optical S., U. 487. Congressional findings do not, however, address directly the question reasonable- ness; they tell what us found, has actually not what it could If, find. rationally indeed, the Court were to make the existence of explicit congressional findings dispositive some close or difficult cases other something than rationality review would be afoot. The resulting congressional obliga- tion its justify choices on policy the merits would imply (and, the justification to review authority

either a judicial wisdom) require choices, authority of those hence, deliberateness, of some high degree act with Congress review But would be evidence. findings which express old judicial preten- be the wisdom would just congressional for delib- in and review and abandoned sion discredited an Act of as as unconstitutional would be patently erateness a Such from this Court. long opinions mandating as an function merely would requirement process legislative under of legislation of the merits for covert review excuse or less arbitrarily and more never expressed standards case, rationality in any such a regime, Under applied. of the past. be a thing of review would standard the ration- that courts hand, applying the other to say On not, course, is to findings not defer may standard ality have fact, in are They may, pointless. say findings for, establishing look courts what to value in telling great review, citing reference for least one frame of at research underlying authority. to factual Justice Breyer’s undertaking; help was necessarily major dissent the risk that judi- shrinks incidentally and it not welcome, across public miss material scattered cial research will record. Con- domain or buried under pounds legislative this than on a more plane gressional findings particular earned judicial would have record illustrates accordingly as rational day long But thanks do not carry thanks. for the and I would not allow touchstone, is the possibility ante, as the Court’s possibility, opinion may, have addition of could findings principle congressional affected the fate of the statute here.

Ill Breyer’s beyond Because Justice demonstrates opinion re- doubt that the Act in any question passes rationality view that the Court continues to decision today’s espouse, be seen as its and its may only reasoning sugges- misstep,

615 not with standard, tions in but quite gear prevailing I hardly otherwise, an would I epochal case. not but argue would raise a Not case has come in caveat. every epochal Laughlin Jones & did not trappings. reject epochal in words; direct-indirect standard so it said the many just relation matter commerce was regulated subject S., direct U. at But we enough. 301 41-43. know what happened.

I respectfully dissent. Justice whom Breyer, Stevens, with Justice Justice Ginsburg Souter, and Justice join, dissenting. issue this case is whether the Commerce Clause

authorizes to enact a statute that makes it a in, crime to possess near, a school. 18 U. S. C. gun (1988 V). ed., § 922(q)(1)(A) view, In Supp. my the statute well falls within the of the commerce scope as this power has Court understood over the last half power century.

I In conclusion, this I reaching three basic apply principles of Commerce First, Clause interpretation. power “regulate . . Commerce . the several among States,” U. S. Const., I, § 8, Art. cl. encompasses regulate local activities as insofar they affect significantly interstate g., Ogden, commerce. See, e. Gibbons v. 1, 194-195 Wheat. (1824) (Marshall, Filburn, C. Wickard v. J.); (1942). As the out, ante, at majority points 559, the Court, how much an describing effect the Clause requires, sometimes has used the word “substantial” and sometimes g., supra, e. Wickard, has not. (“substantial Compare, Virginia Mining with Hodel v. economic effect”), & Surface Inc., Reclamation Assn., (1981) (“affects 452 U. S. Maryland interstate Wirtz, commerce”); see also v. 392 U. S. 183, 196, (1968) (cumulative n. 27 effect must not be “trivial”); Laughlin NLRB Corp., Jones & Steel 1, 37 relation” activ between and substantial of “close (speaking effect”) (emphasis of “substantial commerce, not ity supra, Gibbons, (words Clause at 194 Commerce added); inter commerce, which is completely do ... “comprehend not States”). And, other which does not. . . affect nal .. . Cardozo, Justice recognizes quoting also majority effect) much (how an esti requires the degree question can formulation no verbal “size” the effect that mate the ante, at I word use the See with precision. capture some a implies the word “substantial” because “significant” See, suggests. than precedent narrower recent power what g., States, Daniel (1971); e. Perez v. 146, 154 402 U. S. Paul, (1969). But of “substan U. speak S. no would make rather than effect” “significant tial effect” in this case. difference will likely a local

Second, activity whether determining commerce, court interstate a have effect upon a significant (a act consider, single the effect of an individual must not rather the cumulative effect but possession), instance gun (i. e., of all possessed the effect guns of all similar instances g., supra, Wickard, e. schools). at 127-128. See, in or near matter almost 50 years ago: As this Court the put the when multi- activity individual enough “[I]t a threat to the into a ... contains general practice plied preventative regula- interstate economy requires Farms, v. American Mandeville Island Inc. tion.” Sugar Crystal Co., (citations omitted). us to the connection

Third, Constitution requires judge commerce, not between a interstate regulated activity at but one remove. Courts must directly, give Congress of a degree leeway significant existence determining inter- factual connection between the regulated activity state commerce —both because Constitution delegates the commerce and because directly Congress kind that determination an of a requires empirical judgment with accu- is more than a court make legislature likely this The traditional words “rational basis” racy. capture supra, Hodel, Thus, at 276-277. the specific See leeway. whether us, before as the Court is not question recognizes, com- affected interstate activity sufficiently “regulated merce,” but, rather, whether could have had “a Ante, rational basis” for so at 557 (emphasis concluding. added).

I that we must this matter recognize judge independently. because conclude that a “[SJimply Congress may particular not affects interstate commerce does activity substantially supra, Hodel, make it so.” necessarily (Rehnquist, J., And, I that Con- concurring also judgment). recognize did not write gress “interstate commerce” specific findings into the law under which Nonethe- Lopez was convicted. less, noted, as I have inde- matter that we review already (i. e., basis”) there already whether is a “rational pendently has considerable built into of And, it. the absence leeway of of most, the benefit some findings, statute deprives extra deference, This extra leeway. might principle, change case, the result a close it has though, practice, g., e. Katzenbach not made a critical See, difference. legal McClung, (1964) v. 379 294, 299 formal that “no (noting made, were which of findings course are not necessary”); supra, System, Perez, Broadcasting at 156-157; cf. Turner FCC, Inc. (1994) 622, v. 512 U. S. 666 of (opinion Kennedy, J.) is not (“Congress statutes, when its obligated, to enacting make a record of the that an type agency administrative or court does to accommodate judicial review”); Fullilove v. Klutznick, (1980) U. (Powell, S. J., concurring) (“After Congress has in an legislated area na- repeatedly tional concern, its Members gain that experience may reduce the need .”). for fresh or hearings debate . It prolonged . would seem particularly unfortunate to make the validity find or absence hand turn on the presence

the statute at until not make Congress findings (though Because did ings. ele to would so doing appear after was Lopez prosecuted), §§ 320904 103-322, See Pub. L. form substance. vate over (G). §§ 922(q)(1)(F), U. S. C. (2)(F), (G), 2125, 18 108 Stat. addition, Appeals’ suggestion In the Court despite (CA5 1993), no there is see F. 3d contrary, rationale. of Congress’ here for a indication need clear special or of state with the exercise does not interfere The statute g., Muth, 491 U. S. Dellmuth v. Cf., e. authority. local (1989) for abrogation clear statement 227-228 (requiring clear Moreover, any Amendment immunity). Eleventh in- would determine only Congress’ rule apply statement not of its result, authority source clarify tended decision, went into its the level of consideration that measure no activities Congress and here there is doubt as which ibid.; id., J., con- at 233 intended to See regulate. (Scalia, (to suits Con- money damages, States to curring) subject refer and need not clear, make intent need only gress Wyoming, EEOC Amendment); to the Eleventh explicitly need not recite the n. 226, 243, (Congress action). its constitutional that authorizes provision II hand, ask these to the case at we must Applying principles had a rational basis for finding whether could have Congress (or substantial) connection between significant gun-related Or, school violence and interstate commerce. to put explicit in the question language finding made when it amended this law in 1994: Could Congress rationally have found that “violent crime in zones,” school education,” its effect on through the “quality significantly (or affects or substantially) “foreign “interstate” commerce”? (G). §§ 922(q)(1)(F), C. As as one views the long connection, not as a “technical legal conception,” States, & Co. v. but as “a 196 practical one,” Swift

619 (1905)(Holmes,J.), question U. S. the answer to this yes. reports generated must be Numerous and studies— government both inside and outside clear that Con- —make gress reasonably empirical could have found the connection (See implicitly explicitly, Appendix, law, that its asserts. sample for a as well as infra, documentation, below.) complete for citations to the sources referenced thing, reports, hearings, readily For one and other avail problem guns able literature make clear in and widespread extremely around schools is These serious. report, example, percent materials that four of American (and high inner-city high percent school students six students) carry gun occasionally, school to school at least Wright Sheley, Centers for Disease 2342; McGee, Control & percent high 679; that of urban had school students have guns percent ibid.; them, fired at that 20 those students any guns, have been 6- ibid.; that, threatened with period, month several hundred are thousand schoolchildren Dept. victims of violent crimes in or schools, near their U. S. (1989); Hearing of (1989). Justice House Select Committee they report widespread And, that this violence throughout significantly schools the Nation interferes with quality g., of education in those See, schools. e. House (1990) Judiciary Hearing (linking Committee vio school (1978) dropout rate); Dept. lence to U. S. of Health 118-119 (school-violence academically); compare victims suffer U. S. Dept, (gun inner-city Justice 1 violence worst in. schools), (dropout with highest National Center 47 rates cities). reports inner Based on such these, ob viously thought guns could have learning are mutu ally exclusive. Senate Labor and Human Resources Com Hearing (1993); mittee Dept. of Health 118, 123-124 (1978). Congress could therefore have found a substantial problem educational unable to teach, students un —teachers able to guns learn—and concluded that near schools contrib substantially ute scope problem. the size and of that guns significantly

Having undermine in schools found that quality classrooms, education in our Nation’s upon given in the effect of education found, also have could gun-related foreign violence commerce, that terstate and prob human, a commercial, as well as and around schools a although a matter of econom Education, far more than lem. long inextricably intertwined with the Nation’s ics, has been began, economy. received this most workers When Nation (like Benjamin typically workplace, their education Franklin) generally Seybolt; apprentices. Rora See Dept. baugh; 1920’s, As late as the of Labor directly many general workers still received education from employers large corporations, such as General their —from Goodyear, Electric, Ford, and which created schools within help their firms to both the worker and the firm. See Bolino century (Throughout fewer than 15-25. most the 19th secondary percent one of all Americans received education 11.) public through attending high id., As school. See grew early century, school enrollment in the 20th see Becker (1993), industry the need for to teach basic educational link But, skills diminished. the direct economic between productivity basic education and industrial remained. Schol nearly quarter ars estimate that of America’s economic growth early years century directly in of this is traceable schooling, increased 243; see Denison that investment in education) capital” (through spending “human on exceeded “physical capital” by investment in a ratio of almost two to (1961); one, see Schultz that the economic returns to this investment in education exceeded returns to conven capital g., tional investment, see, e. Davis Morrall & 48-49. years secondary In recent the link between education and strengthened, becoming business has both more direct and important. subject report more Scholars that tech- nological changes management techniques innovations workplace jobs have altered the nature of the so that more greater g., now demand See, educational e. MIT skills. company’s 1,000 workers (only of handtool about one-third requires process that qualified new work with a to were skills); Cyert reading & high-school-level mathematical and high dropouts wages and Mowery (gap school between increasing); Dept. of Labor trained workers better time). declining dropouts (job openings over for manufacturing or construc “service, that is evidence There technology requires displaced by jobs being that are tion being likely, exported are more or, worker better-educated Morgan that “workers Ponticell, 26; overseas,” Gordon, & only truly year find that one 2000 will skills the with few ibid,.; job and that remain,” of ten will out encourage long way “[o]ver the to the best haul high-wage upgrade growth jobs skills of the is to [Bjetter-trained more become workers work force. . . . enabling company productive more to become workers, competitive expand.” Henkoff 60. and primary Increasing global competition made and also has economically secondary important. The more education economy portion to interna- American attributable nearly tripled 1980, more and tional trade between 1950 percent goods compete now with than 70 of American-made lagging imports. 205; Yet, & 33. Marshall Marshall Tucker productivity negative bal- has trade worker contributed hourly compensation has below ances to real that fallen wages in 10 other nations. See National Cen- industrialized (1989); ter Handbook of Neef & 57; Labor Statistics significant part Kask At least of this serious some emerge productivity problem is attributable to students who reading from without skills classrooms or mathematical necessary compete European with their or Asian counter- parts, g., drop- presumably, high see, 28, and, e. MIT school cities), percent (up percent rates of out 20 to 25 to 50 in inner g., e. In- see, National Center Hanushek 215. 47; Chubb & writing deed, statutes, has when other said, “functionally technologically in the illiterate” Americans or “standing “erod[e]” in the interna- work force our economic §6002(a)(3), marketplace,” 100-418, tional Pub. L. 102 Stat. paying price “[o]ur of scien- 1469,and that Nation ... illiteracy, productivity technological tific with our declin- ailing, global competitiveness ing, and our our industrial base dwindling,” Rep. pt. p. 98-6, H. R. No.

Finally, today many that, ever, evidence more than there is upon presence, firms base their location decisions absence, of a work force with a basic education. See Mac- Cormack, Newman, 73; & Rosenfield Coffee 296. Scholars subject report, example, today, “[h]igh speed on the transportation possible communication and make it produce products anywhere most and services in the world,” “[mjodern machinery produc- 38; National that Center and wage tion methods can therefore be combined with low managers per- ibid.; down,” workers to drive costs that can anywhere form “‘back now,’” office functions the world “ ” say they get enough and that if ‘can’t skilled workers here’ they jobs country,’” will “‘move the skilled out of the id., at consequence 41; with the that “rich countries need better retraining, supply education and to reduce the of unskilled equip they require workers and to them with the skills jobs,” Survey Economy light tomorrow’s of Global 37. In importance this increased of education to individual firms, it surprise is no that half of the Nation’s manufacturers have setting shaping become involved with standards and curric- percent ula for local schools, 65-68, Maturi that 88 think this important, kind of involvement is id., at that more than recently passed 20 States have educational reforms to attract magazines new business, 61-62, Overman and that business begun according quality have to rank cities to the of their Boyle schools, see just fairly

The economic links I have sketched seem obvi- Why equally light ous. then is it not obvious, in of those widespread, physical links, that a serious, and substantial also and threatens substantially threat teaching learning to which that and is inextri- learning teaching That six cably tied? is to hands of say, guns percent students violence high school and inner-city gun-related must schools threaten the trade com- throughout city’s then, that merce those schools support. only question, (to is whether the latter threat use the terminol- majority’s (1) the extent of the “substantial.” The evidence of ogy) supra, (2) the ex- see at gun-related problem, violence tent learning, effect classroom resulting negative ibid., the extent (3) see com- consequent negative supra, mercial see effects, 620-622, when taken together, indicate a threat trade and commerce that is “substantial.” least, At the could have concluded very Congress rationally that the links are “substantial.” could found Congress have

Specifically, gun-related violence near the classroom a serious threat poses economic (1) to educated who consequently workers must inadequately g., e. see, endure low jobs, National Center paying (in to communities and businesses that “infor might today’s mation otherwise from a society”) gain, well-educated work g., e. force, an commercial important see, Becker advantage, (1992), kind location near a railhead harbor in the provided past. also have found these might threats to be no different in kind from other threats that this Court has found within the commerce such as power, the threat that loan to the sharking poses “funds” of “numerous States, Perez v. localities,” S., 402 U. at and that unfair labor to practices commerce, of pose instrumentalities NLRB, Consolidated Edison Co. see 197, 221-222 supra, As I have pointed out, at has written that “the occurrence of violent crime in school zones” has a brought about “decline in the of education” quality that “has an adverse on interstate impact commerce and the foreign commerce of the United States.” 18 U. S. C. (G). §§ 922(q)(1)(F), The facts, violence-related the educa- make facts, together, taken facts, the economic tional law, case under our And, because rational. this conclusion supra, 615-617; infra, the 627-628, sufficiency at at see link be- Clause necessary Commerce constitutionally the commerce turns and interstate crime violence tween a stat- make the same facts or those degree, size upon simply ute constitutional. is not “obliterate” statute constitutional

To hold this local,” and what what is national between “distinction ante, at 567 marks omit- (citation omitted; quotation internal permits that the Commerce Clause ted); nor is it to hold it found activity any to “regulate Federal Government citi- of individual productivity related to economic was child divorce, and custody,” zens,” “marriage, to regulate Ante, at 564. all of education. regulate any aspects a acute curbing is aimed at First, particularly this statute (and use) possession threat to the educational process —the near, in, or the classroom. firearms life-threatening above unmistakably that I have discussed evidence empirical in which and education are way guns the special documents supra, at 619. This Court has pre- See incompatible. disruptive potential recognized singularly viously that acts of violence have. See may interstate commerce supra, Perez, of the con- Second, immediacy at 156-157. between education and the national economic well- nection is documented scholars and being accepted by society in a a not hold true for large way degree may be other social institutions. It must the rare case, surely (when then, that statute strikes at conduct that considered abstract) in the seems so removed from commerce, but which has so an (practically speaking) significant impact upon commerce.

In sum, that the statute before holding us falls particular within the not would expand scope Rather, that Clause. it would simply apply pre-existing law See Heart Atlanta economic circumstances. changing It States, 379 U. S. 241, Motel, v. United Inc. world, gun-related that, economic today’s recognize would difference makes a the classroom significant near violence In accord- social, well-being. economic, as well as our our would per- a holding such well-accepted precedent, with ance realities,” . . . in terms of economic “to act mit Congress as “an affirmative power the commerce interpret would would needs,” with the national commensurate so not operate clause does the “commerce that acknowledge itself against to defend nation to render powerless or destruc- inimical decrees forces that Congress economic SEC, Co. North American national economy.” tive of the States, & Co. v. United 686, 705 (citing Swift J.)). (Holmes, S., 196 U. at 398

Ill the scope §922 falls outside The majority’s holding —that serious legal prob- three Clause —creates Commerce to modern runs First, contrary the majority’s holding lems. actions cases that have congressional Court upheld Supreme that to interstate or foreign connections despite In of school violence. than the effect are less significant States, held that Com- Perez v. the Court supra, it a that makes authorized a federal statute merce Clause (“[e]xtortionate credit in loan crime to engage sharking transactions”) said that at a local level. The Court Con- transactions, that such may “though purely gress judge mirastate, S., affect . . . interstate commerce.” U. added). reasoned (emphasis Presumably, Congress corner, force, with a on a street threatening using say gun to collect a debt occurs so that the often sufficiently activity crime) (by helping affects commerce organized among But, States. then cannot also reason that the why threat or use of force —the frequent consequence possess- or near ing gun a school occurs often so sufficiently —in education) such basic affects activity (by inhibiting 626 the impact upon the among negative States? basic skills seems to teach of an inability

national economy crime. (nor than of organized that less significant) no smaller (1964), this Court 379 294 McClung, In Katzenbach v. a statute the commerce power, prohibiting as within upheld, restaurants, in because part local at racial discrimination African travel Americans discouraged by that discrimination affected of purchases discrimination because that part id., at from States. See restaurant other food and supplies Motel, (Black, J., concur- supra, Heart Atlanta at 300; of Atlanta). In Daniel v. and in Heart McClung ring Paul, an effect on com- (1969), this Court found 395 U. S. miles an located several park merce caused amusement Alabama —because the middle of down road in country (the food, some assumed), paddle- some customers Court id., come from out state. See boats, and a box had juke under- cases, In of these Court 304-305, 308. both at (at a local instance discrimination stood that the specific accommodation) that, practice was of a part general place serious as a caused not most whole, only considered had eco harm, nationally significant social but human and supra, 301; at as well. See McClung, nomic dimensions Daniel, at It is difficult to distinguish supra, n. 10. us, for the same critical elements are present. case before vio are locate in communities Businesses less likely where will to move lence classroom. Families hesitate plagues instead of neighborhoods carry guns where students found that books. in 1994 “parents may (Congress expressly their decline to send children to school” certain areas “due about concern violent crime and violence.” gun (to § U. S. C. And look at the matter in the 922(q)(1)(E).) most manner), commercial interstate narrowly publishers therefore will sell books and firms will sell fewer fewer other school where the threat of violence learn supplies disrupts Most like the local racial discrimination ing. importantly, Daniel, issue in McClung here, instances taken local create whole, problem as a and considered together nation- also has harm, but and social human serious causes dimensions. economic significant ally Filburn, this Court (1942), In Wickard Act Adjustment Agricultural the application sustained his own consumed Filburn grew to wheat of 1938 (1) homegrown in its totality, considered because, local farm into the to “flow by rising prices” be “induced may wheat (2) if it never even increases,” and and check price market nonetheless wheat market, homegrown the enters actually would other it which the man who grew a need of “supplies and, market” in the open be reflected by purchases wise Id., with wheat in commerce.” sense, that “competes significant effects on commerce of these find both To of the the benefit to give Congress had amount, the Court (or “sub find a Court, significant the would Why doubt. lee stantial”) any here, greater have to give effect Sportswear v. Women’s States United also See way? Mfrs. (1949) (“If Assn., 336 U. S. interstate it is 460, 464 the how local opera it does not matter the that feels pinch, Farms, Island Mandeville the squeeze”); which applies tion Crystal Sugar (“[I]t Co., Inc. v. American at 236 S., 334 U. into when multiplied individual activity that the is enough interstate threat to the contains a . . . a general practice regulation”). that requires preventive economy from creates comes the Court The second legal problem with its holding it can reconcile its belief apparent “com- between cases a critical distinction earlier by making Ante, at 561. mercial” and noncommercial “transaction[s].” would believes the Constitution That is to the Court say, has each of which activities, between two local distinguish commerce, one, if but not an identical effect interstate upon matter, the is “commercial” in As a other, general nature. fails to heed earlier not warning this this Court’s approach to turn of the “formu- “questions Congress” upon that would give la[s]” ‘production’ such as

“controlling to nomenclature force actual of the consideration and foreclose ‘indirect’ upon activity question com- interstate of the effects supra, at 120. Wickard, merce.” Darby, 100, 116-117 States v. also United See “production” between (overturning distinction the Court’s Dagen case, Hammer child labor in the and “commerce” (1918)); & Co. v. 251, 271-272 S. hart, 247 U. Swift J.) (“[Cjommerce among (Holmes, S., at 398 States, 196U. practical legal conception, one, abut a technical is not States business”). majori Moreover, course of from the drawn as the saw ty’s with what Court consistent test is not majority Al now characterizes. point that the cases categorize today attempts Perez, Mc though majority involving activ “economic Clung, intrastate and Wickard cases each of those ity,” that decided 559,the Courts ante, at reg activity upon economic nature focus did not activity upon they whether focused Rather, ulated. foreign the Wick fact, In commerce. interstate affected consumption expressly Filburn’s held that ard Court may regarded “though be as com homegrown it not wheat, regulated na its be nevertheless merce,” could —“whatever long effect on a economic as “it exerts substantial ture” —so (emphasis supra, Wickard, at 125 interstate commerce.” added). importantly, and if a between commercial distinction More is the ease in made, is to be this not noncommercial activities clearly majority cannot intend such a The which to make it. narrowly gun possession an act of focus distinction to reading standing for such a could not be reconciled itself, Daniel) rights (McClung and or either the civil cases with (the specific transaction each of those cases Perez—in force) not itself “com- exclusion, the use of was race-based majority distinguish if means to And, mercial.” instead generally among categories activities, differentiat- broad ing as a commercial, then, what is educational from what is practical impossible matter, the almost to draw. line becomes reading, writing, and mathematics, Schools related that teach purposes, basic skills serve both social and commercial easily separate one cannot the one from the other. Ameri- industry again, can has is in teach- been, itself involved ing. supra, extent, what When, See and to does its Does involvement make education commercial? directly number of vocational classes that train students jobs pub- it if make a difference? Does matter the school private, nonprofit profit seeking? lic or it matter if Does city adopts plan private pays a or State a voucher firms ignore practical to run a Even if school? one were to these questions, why a should there be theoretical distinction be- significantly tween education, when it commerce, benefits pollution, and environmental it when causes economic harm? Virginia Mining See Assn., Hodel v. & Reclamation Surface (1981). Inc., 452 U. 264 S. Regardless, principled if there is a that could distinction (even work both and in cases, here future in the industry pri absence of vocational classes, involvement, and management) rationally vate could conclude that schools fall year on the commercial side of the In line. Con gress primary secondary enacted us, the statute before spent nearly quarter schools is, billion—that of a $230 tril significant lion portion dollars—which accounts for of our gross product year. trillion $5.5 domestic for that See Sta (1993). tistical schooling Abstract business requires expenditure transpor of these funds on student tation, food and custodial services, books, and teachers’ Dept. salaries. See expenditures S. U. of Education 4, These provide enable schools to a valuable service— namely, equip they students with the skills need to survive in life specifically, and, workplace. more Certainly, in the Congress analyzed expenditure has often school as if it were a closely commercial analyzing investment, whether schools are they justify efficient, significant whether resources they achieve

they spend, restructured to be can and whether p. g., Rep. 100-222, greater e. No. See, S. returns. investment”); (federal prudent Senate is “a school assistance (1994) (private Hearing sector Appropriations Committee schools); 185-229 Moe management public & cf. Chubb (school choice); (performance incen- based 85-122 Hanushek (decision educators); Conn., Hartford, for Gibbs tives Congress, system). Why public could out school contract roughly purposes, as consider schools not Clause Commerce analogous from which the Nation investments to commercial of an educated work force? derives benefit holding by legal problem the Court’s third created legal uncertainty that, law in an area of that it threatens reasonably well settled. case, this seemed until (more many than sections statutes has enacted (at Code), including least 25 statutes criminal States sections), “affecting to define commerce” use the words (destruction § 844(i) g., scope, of build e. U. S. C. see, their commerce), activity affecting ings interstate used in language jurisdictional all, at contain no other statutes that 922(o)(l) machineguns). § g., (possession of see, e. S. C. U. regulate activi statutes noncommercial these, similar, Do meaning “affecting com so, If alter the would that ties? jurisdictional element? Cf. United States merce” 1975)(en banc) (CA7 (Stevens, 57-58 Staszcuk, 517 2d F. (evaluation J.) “requires Congress’ a con more than intent consequences particular transac sideration of the tion”). jurisdictional importantly, More in the absence Wickard, element, are the courts nevertheless to take cases) (and inapplicable, S., 127-128, later similar U. single judge activity in of a effect noncommercial considering terstate commerce without similar instances of questions even the forbidden conduct? However these are tually legal uncertainty resolved, the now created will re Congress’ ability strict laws crimi enact criminal aimed at problem problem that, nal behavior rather considered than instance seriously instance, threatens economic, as well well-being as social, of Americans.

IV legislation sum, In to find this scope within the of the Com- permit merce “Congress Clause would ... to act in terms of economic . . . realities.” North SEC, American v. Co. (citing atS.,U. States, & Co. v. S., 196 U. Swift J.)). (Holmes, at 398 interpret It would as this Clause traditionally interpreted exception Court has it, with the wrong subsequently one turn corrected. See Gibbons v. Ogden, (holding Wheat., at 195 that the commerce “to nation, extends all external concerns of the and to generally”); those internal concerns which affect the States (“The Darby, S., United States v. 312 U. at 116-117 conclu- [the inescapable Dagenhart that Hammer child sion departure case] principles from which have labor was prevailed interpretation in the of the Commerce Clause both the decision It should be and now is before since .... overruled”). legislation Upholding do no more this would simply recognize had a “rational basis” than finding significant guns connection in or near between education) (through their effect on the interstate schools and they foreign reasons, threaten. For these judgment Appeals. I would reverse Court Respectfully, I dissent. BREYER,

APPENDIX TO OPINION OF J. Congressional Materials order) (in chronological reverse Management Hearing Schools, Private of Public Sector Héalth and Human Labor, before Subcommittee Agencies Services, and Education and Related of the Sen- Appropriations, Cong., ate Committee on 103d 2d Sess. (1994) (Senate (1994)). Appropriations Hearing Committee the Subcom- before Violence, Hearings and Gun

Children on the of the Senate Committee mittee on Juvenile Justice (Senate Judiciary 1st Sess. 103d Cong., Judiciary, (1993)). Hearing Committee the Vio- Epidemic Curbing Safe: Every Child

Keeping Children, on the Subcommittee before lence, Hearing Joint on Committee of the Senate and Alcoholism Drugs Family, Select Commit- the House Human Resources and Labor and 1st Sess. Families, Cong., and 103d Children, Youth, tee on (1993). be- Safe, our Schools Hearing from Violence: Making

Recess and Humanities Education, Arts on fore the Subcommittee Resources, and Human on Labor Committee Senate (1993) (Senate Re- Labor and Human 1st 103d Sess. Cong., (1993)). Hearing sources Committee 21st Century, Hearings Economy for the Preparing Children, Family, Drugs on before the Subcommittee on and Human Committee Labor of the Senate Alcoholism (1992). 102d 2d Resources, Sess. Cong., Increase, the Recent Weapons: Why Children Carrying 102d on the before the Senate Committee Judiciary, Hearing (1992). 2d Sess. Cong., Prevention, before Senate Com- Hearing

Youth Violence (1992). 2d Sess. on 102d Affairs, Cong., mittee Governmental Basic Skills Improvement Prevention and Dropout School 101-600, 2(a)(2), § Act of Pub. Stat. 1990, L. Educa- Mathematics, Science Engineering

Excellence 5301(a)(5) (1988 1990, § tion Act of 104 Stat. 20 U. S. C. V). ed., Supp. on and American Busi- Education Reform

Oversight Hearing ness and the of the Hawkins-Stafford Implementation Amendments on before Subcommittee Hearing Elementary, Secondary, Training and Vocational Cong., Labor, House Committee on Education and 101st 2d (1990). Sess. Changing Report Prepared S. Power in a World,

U. Policy on International Subcommittee Economic and Trade Foreign Cong., of the House on Affairs, Committee 101st 2d Sess., 43-66 Hearing Free School Zones Act of

Gun before the Subcommittee on Crime of the House Committee (1990) (House Judiciary, Cong., Judiciary 101st 2d Sess. (1990)). Hearing Committee

Restoring Productivity: American Role Education Hearing Human Resources, before the Commit- Senate Cong., tee on Labor and Resources, Human 101st 1st Sess. (1989). Hearing Guns, and

Children before the House Select Com- Cong., mittee on Children, Youth, and Families, 101st 1st (1989)(House (1989)). Hearing Sess. Select Committee Training Competitive Education and for a America Act of 1988,Pub. L. 100-418, VI, Title 102 Stat. 1469. (1987). Rep.

S. No. 100-222 Training Competitiveness, Education and for American Hearings the before House Committee on Education and (1987). Cong., Labor, 100th 1st Sess.

Competitiveness Quality and the of the American Work Hearings Force, before the Subcommittee on Education and Health of the Cong., Joint Economic Committee, 100th 1st (1987). pts. 1 Sess.,

Oversight Hearing Illiteracy, Hearing on Joint before the Elementary, Secondary, Subcommittee on and Vocational Ed- ucation of the House Committee on Education and Labor and the Subcommittee on Education, Arts and of Humanities the Senate Committee on Labor and Human Resources, 99th (1986). Cong., 2d Sess. before States, Hearings on in the Illiteracy

Oversight and Vocational Secondary, on Elementary, the Subcommittee Labor, Education and on of the House Committee Education (1986). 2d Sess. 99th Cong., before Sub- Schools, Hearing and Violence

Crime on Senate Committee on Justice committee Juvenile (1984). 2d Sess. Judiciary, Cong., 98th (1983). H. R. 98-6, 1 and pts. Rep. No. (1983).

S. No. 98-151 Rep. before the Act, Security Hearings Education for Economic Humanities Education, Arts and Subcommittee Resources, 98th and Human on Labor Committee Senate (1983). 1st Sess. Cong., (1974). §825, 88 93-380, L. Stat.

Pub. in Drawing Applied Instruction Clarke, Industry: I. Art 209, 46th Arts, Fine S. Exec. Doc. No. to the Industrial and 2d Sess., Cong., pt. Materials

Other Federal Government order) (in reverse chronological Education, Educational Research Office Dept, Quality First The Educational Findings: Improvement, (Feb. 1995). Survey Workforce Employer (Feb. 1994). of the President Economic Report Commerce, of Statistical Abstract of Dept, U. S. (1993) (Statistical (1993)).

States Abstract of of Educational Research and Dept, Education, U. S. Office for School Public School Education Improvement, Financing (June 1993) (U. (1993)). Year 1989-90 S. of Education Dept, (Feb. 1992). Economic of President 101 Report Labor, Dept, U. S. of Secretary’s Achieving Commission Skills, Skills and Tasks For Jobs: A SCANS- Necessary Re- (1992). for America 2000 port

635 Dept, Employment Training Labor, of Administra- U. S. Beyond Literacy The Needs of Job tion, the School Doors: Department (Sept. Served the U. S. of Labor Seekers 1992). Dept, Statistics, Justice, S. of Bureau of Justice School

U. Survey Report A Crime: National Crime Victimization 1991) (U. (1991)). (Sept. Dept, S. of Justice Dept, of Commerce, Census, U. S. of Bureau of 1990 Census (Jan. 1994). Population: Education in the United States Dept, Justice, Delin- U. S. of Office of Juvenile Justice and quency Weapons Bulletin Prevention, Schools, OJJDP (Oct. 1989) (U. (1989)). Dept, of S. Justice Dept, of Handbook Labor, Statistics, U. S. Bureau of Labor (Handbook 1989) (Aug. of 281, 561, of Labor Statistics (1989)). Labor Statistics

Bishop, Learning: Why High Incentives for American School Compare Poorly Counterparts Students to their Over- So Dept, seas, in 1 of on Workforce Labor, U. S. Commission Quality People Efficiency, Investing & Labor Market 1989). (Sept.

Rumberger Schooling Workplace, Levin, & for the Modern Dept, in 1 Labor, U. S. Commission on Qual- Workforce ity Efficiency, Investing People & Labor Market 1989). (Sept. Dept, Department

U. S. of Education and Labor, U. S. Workplace Bottom Line: Basic Skills in the Dept, Employment Training Labor, U. S. Administra- Estimating Employ- tion, Educational Attainment of Future (Oct. (U. 1981) Dept, ment Demand for States S. of Labor (1981)). Dept, Health, Education, Welfare, National Insti-

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Case Details

Case Name: United States v. Lopez

Court Name: Supreme Court of the United States

Date Published: Apr 26, 1995

Citation: 514 U.S. 549

Docket Number: 93-1260

Court Abbreviation: SCOTUS