Copyright (c) 1999 Loyola Law Review Loyola Law Review

Fall, 1999

45 Loy. L. Rev. 541

LENGTH: 8722 words

SPEECH:

LOPEZ SPEAKS, IS ANYONE LISTENING?

Judge David B. Sentelle *

* Judge, United States Court of Appeals for the D.C. Circuit, Washington, D.C. This speech was presented at Loyola University New Orleans School of Law on April 16, 1999 as part of a faculty colloquium.

SUMMARY: ... In 1788, James Madison wrote, under the name of Publius, a comprehensive description of the nature of our federalism: "The powers delegated by the proposed constitution to the federal government, are few and defined. ...

Briefly, under Lopez, to be the subject of constitutionally valid regulation under the Commerce Clause, an activity not falling within categories one or two must substantially affect interstate commerce, not merely affect it. ... The Court highlighted the government's admission that under this "costs of crime" reasoning, the federal government could regulate "not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." ... Again, this circuit waved at Lopez as it went by, recited the generalities of interstate commerce, and upheld the constitutionality of the statute, both facially and as applied. ... In his view, before Lopez, the inferior federal courts might credibly "conclude that although section 2119 'may stretch the outer limits of the Commerce Clause, under current doctrine it is not unconstitutional.'" ... However, that majority accepted the plaintiff's argument that VAWA was constitutional under the third category as a regulation of an activity that substantially affects interstate commerce. ... Having said that, in the view of the Brzonkala panel, the judiciary has no apparent role left in reviewing constitutionality of a commerce power exercise once Congress has taken evidence and entered some sort of finding. ...

TEXT: [*541]

In 1788, James Madison wrote, under the name of Publius, a comprehensive description of the nature of our federalism: "The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite." n1 Among those few and defined powers which the Constitution delegated to the federal government was the congressional power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." n2

Barely over a year after Madison wrote that description, the Constitution, including the Commerce Clause, became effective among the ratifying states. Almost 207 years after that ratification, the Supreme Court had before it a case calling into question the constitutionality of a statute in which Congress had made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." n3 The only justification the United States could offer among the enumerated powers for the constitutionality of the statute was the Commerce Clause. But as Chief Justice Rehnquist stated in his opinion, "the Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce." n4 And yet, so great was the surprise in the legal academic community that anyone would even question the constitutionality of the act that the distinguished dean of [*542] a distinguished west coast law school (and I might add not a particularly liberal dean, especially for distinguished west coast law schools) declared in a Federalist Society Symposium that not a single Justice would vote to uphold the Fifth Circuit's decision that the statute was unconstitutional. He was certain enough to bet me a dinner (which he has never paid) that there would not be as many as three Justices voting to declare the act unconstitutional.

Get that picture. The only justification for this statute within the enumerated powers is the power of Congress to regulate commerce among the several states. The statute in question does not regulate commerce and does not require any connection to an interstate activity. And yet, there was at large a certainty that we could have interstate commerce without interstate and without commerce, rather like having ham and eggs without either ham or eggs. What had happened in 207 years, and what was going to happen next?

What had happened over those years was a sometimes gradual, sometimes rapid upward racheting of federal power at the expense of the people and the states. The Commerce Clause was the most conspicuous socket for that rachet. After the ratification of the Constitution, Article 1, Section 8, Clause 3, mostly just lay there until about 1824. In that year, the High Court considered a shipping dispute arising from New York's purported grant of exclusive navigation rights within that state. n5 The operator of steam boats running between New York and New Jersey sought to enjoin the enforcement of the New York acts creating exclusive rights. n6 He won. n7

Chief Justice Marshall delivered the opinion of the Court in which he established three important directions of interstate commerce jurisprudence. n8 First, commerce is broader than traffic. n9 It includes "commercial intercourse between nations, [*543] and parts of nations, in all its branches." n10 Secondly, the Gibbons case established the negative side of the commerce power; that is, that the states cannot interfere with interstate commerce. n11 That is how Gibbons won. Third, and sometimes lost in the history of the case, the Gibbons opinion established that "commerce among the several states" does not give Congress the power over "commerce which is completely internal, which is carried on between man and man in a state." n12

Justice Joseph Story, in his great early learned treatise on the Constitution, published less than a decade after the Gibbons v. Ogden decision, declared that the constitutional authority to regulate commerce could not be applied to the perhaps worthy "purpose of encouraging and protecting domestic manufacturers." n13 He rejected the notion that the definition of commerce could extend to include manufacturing, and did so expressing the fear that to so expand the reach of the Commerce Clause would render "the enumeration of the powers of congress . . . unnecessary and nugatory." n14 As proof of his proposition, Justice Story trotted out a parade of horribles in which "agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the commerce power; for all of them bear an intimate relation to commerce." n15 In other words, the Constitution, as understood by the Supreme Court in the early years, did not under the rubric of interstate commerce empower the federal government to regulate that which was not commerce, or commerce that was not interstate.

With that, we fast forward. In 1942, the Court held that the federal government under the Commerce Clause could regulate a farmer's production of wheat on his own land for home [*544] consumption. n16 Neither time nor energy permits, nor does necessity compel that I go through step by step the gradual downward spiral of the rigor of interpretation applied to the Commerce Clause. Suffice it to say: there had been a sea change. Of course, the advocates of expanded power for government in general, and the federal government in particular, saw not the downward spiral of rigor, but an upward progression of regulatory authority. They saw that progression not simply as a spiral, but as a rachet, operating in only one direction. So certain were they of the inevitable direction of the rachet, of its irreversibility, that the west coast dean was taken with shock when the Fifth Circuit in United States v. Lopez, n17 looked at the non-commercial possession of a chattel in a purely intra-state setting and said, essentially, "Hey, that's not interstate and it's not commerce and the federal government can't regulate it under the Commerce Clause." n18

"Wait a minute! What do you mean we can't?" said the federal government, to the echo of the legal academy. "We do it all the time. We are forever regulating things that aren't interstate and aren't commerce under the interstate commerce power. Don't think judges in Texas can tell us what not to do. We are going to the Supreme Court and get them reversed." They were half right. They did go to the Supreme Court.

The day the Justices heard oral argument in Lopez, I did something I've done only two other times. I went over and watched the oral arguments. Drew Days, the Solicitor General, argued the case himself for the United States. n19 Hardly a minute into his argument, Justice O'Connor asked the first question. She said something like, "Mr. Days, if we accept the government's position, what's left of the doctrine of enumerated powers?" [*545]

I was sitting in one of the guest seats of a Justice, and therefore had a good view, in profile, of the face of the advocate. The Solicitor General looked like he had been kicked in the stomach. I don't know what he thought the argument was going to be about that day or what his moot bench had prepared him for, but it was evident both then and as the argument went on that he had no answer for that question. A few months later, the Supreme Court released the decision in the case and I more than won my dinner from the west coast dean. The federalist position upholding the Fifth Circuit garnered not three, but five votes.

In his opinion for the five-Justice majority, Chief Justice Rehnquist identified "three broad categories of activities" within which the federal government may legitimately regulate under the commerce power. n20 These three categories are: "(1) the use of the channels of interstate commerce[, (2) the regulation and protection of the instrumentalities] of interstate commerce, or persons or things in interstate commerce, even if the threat involved comes from intrastate activities[, and (3)] activities having a substantial relation to interstate commerce." n21 Because the claimed justification for the Gun-Free School Zones Act sheltered under the umbrella of the third area of activity, the Chief Justice wrote a further explication of "those activities that substantially affect interstate commerce." n22 Briefly, under Lopez, to be the subject of constitutionally valid regulation under the Commerce Clause, an activity not falling within categories one or two must substantially affect interstate commerce, not merely affect it. n23

To determine whether an activity substantially affects commerce, we undertake another tripartite examination, asking whether: [*546]

--the regulation controls a commercial activity, or an activity necessary to the regulation of some commercial activity;

--the statute includes a jurisdictional nexus requirement to ensure that each regulated instance of the activity affects interstate commerce; and

--the rationale offered to support the constitutionality of the statute (i.e., statutory findings, legislative history, arguments of counsel, or a reviewing court's own attribution of purposes to the statute being challenged) has a logical stopping point so that the rationale is not so broad as to regulate on a similar basis all human endeavors, especially those traditionally regulated by the states. n24

Unsurprisingly, the Court held that the Gun-Free School Zones Act fit none of those three categories. n25 First, it did not regulate or control a commercial activity or an activity necessary to the regulation of a commercial activity. n26 The Chief Justice acknowledged that Wickard v. Filburn, the homegrown wheat case, was "perhaps the most far reaching example of Commerce Clause authority over intrastate activities." n27 But he further recognized that at least the statute before the Court in Wickard involved the regulation of the wheat market--interstate commerce. n28 In the view of Congress, and subsequently the Court of that time, the regulation of consumable wheat, wherever grown, was necessary to control the volume of wheat on that interstate market. n29 The Gun-Free School Zones Act neither controlled nor purported to affect any market at all. n30 [*547]

Secondly, the statute included no jurisdictional nexus. Under this element of examination, the Chief Justice compared United States v. Bass, in which the Court had upheld the statute making it a crime for a felon "to 'receive, possess, or transport in commerce or affecting commerce . . . any firearm'." n31 The Chief Justice noted that in upholding that statute, the Court had expressly reserved the question of whether Congress could constitutionally regulate the "mere possession" of firearms without the jurisdictional nexus. n32 Even in Bass, where the statute had withstood constitutional scrutiny, the Court set aside the conviction before it because the prosecution, while having proved that the defendant possessed a firearm, failed "to show the requisite nexus with interstate commerce." n33 The statute the Court struck down in Lopez had no such jurisdictional requirement. n34 Congress had invaded the state-owned territory of mere possession with no connection to interstate commerce.

Finally, the Lopez Court considered the implications of the government's argument that guns around schoolhouses might result in violent crime, and violent crime could be expected to affect the functioning of the national economy either through the mechanism of insurance or by reducing the willingness of individuals to travel to other parts of the country which they might consider unsafe. n35 The Court highlighted the government's admission that under this "costs of crime" reasoning, the federal government could regulate "not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." n36 Indeed, the federal government "could regulate any activity that Congress found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example." n37 In other words, under the government's [*548] theory of constitutionality for the Gun-Free School Zones Act, the words of the Commerce Clause were limitless, and Congress had the power to regulate anything at all. n38 In short, there was no stopping point. The statute was unconstitutional.

For the first time since the early days of the New Deal, the Supreme Court had stricken a statute as unconstitutionally beyond the bounds of the commerce power. At least in the view of some, the Supreme Court had for the first time in years breathed new life into the apparently moribund principle of the Tenth Amendment--the sentence that had declared and clarified the very nature of our federalism: "the powers not delegated to the United States by the Constitution, nor prohibited to it by the states, are reserved to the states respectively, or to the people." n39 And so there was another sea change. And so there was a new bold decision declaring a reversal of the rachet and new direction, a return of federal power to the states respectively or to the people. Or was there?

Much of the legal community seems to think not. Much of the academy, and unfortunately of the bench, seem stuck in the past. They seem to believe that if they ignore this specter of change, it will go away. In fairness to the legal academy, the law review writings on the subject of Lopez and its portent are all over the place. However, a totally unscientific, unsystematic review makes me think that many professors cluster around the view of H. Jefferson Powell, who finds Lopez to be a flawed and ultimately ineffective decision because Rehnquist's logic (which he admits is unassailable on its own terms) is inconsistent with what he seems to think is the foregone conclusion that the federal power is as broad as the need to accomplish the "national welfare." n40 That presupposition is of a piece with the one-way rachet.

However, in fairness to the academy, I must say that the lower federal courts can blame largely ourselves if the academics [*549] regard United States v. Lopez as a "theoretical bang and practical whimper." n41 If you get on your computer and search for cases citing Lopez, you will find a plethora of F.3d cites. You will find many of them frankly identified as "negative cases," that is those that "declined to extend." If you read the cases signified by the other citations, that is those that are described as having "examined" or "discussed," you will find that most of them discussed it and found it inapplicable or examined it and found it not on point. I will not attempt to exhaust the catalog of decisions that bypass Lopez in the hope that it will go away, but I will provide you a smattering which I hope presents both a representative sample of subject matter and an illustration that nearly all the circuits are not ready to recognize a sea change.

First, the First Circuit, in United States v. DiSanto, n42 reviewed the convictions of a defendant charged with violating the federal arson statute.

n43 That statute provides for the federal prosecution and punishment of anyone who "maliciously damages or destroys . . . by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." n44 The defendant in DiSanto had been convicted of burning part of his own restaurant. n45 Note: his restaurant was in one state, and it sold family fare to local customers. n46 Note further: the statute does include a jurisdictional nexus requirement reciting the words "interstate commerce" but that stated element does not require that the act prohibited by the statute affect interstate commerce. n47 The circuit upheld the conviction, acknowledged the existence of Lopez, but reiterated its pre-Lopez holding that "rental property is per se 'unquestion [*550] ably sufficiently connected to interstate commerce to confer jurisdiction' and satisfy the jurisdictional element of the federal arson statute." n48 Conspicuously, while acknowledging the existence of Lopez, the circuit limited its terse discussion to the sufficiency of the evidence to satisfy the jurisdictional element of the statute with no discussion of the consistency of the statute either on its face or as applied with the Commerce Clause. n49 Indeed, the DiSanto court only acknowledged the existence of the Commerce Clause in a single-sentence recognition that Lopez had held the Gun-Free School Zone Act to be in excess of that constitutional grant of power. n50

In United States v. Farrish, n51 the Second Circuit affirmed the judgment convicting and sentencing a defendant for stealing two cars from a parking garage in New York. n52 That's it. Two counts of car theft. No, I didn't say anything about transporting them in interstate commerce, or stealing them from interstate commerce. This defendant stole two cars. We have a federal district court conducting the trial and a federal court of appeals affirming the conviction of a car thief. n53 What makes stealing a car a federal case? Well, it seems the defendant used force and violence in stealing the cars. n54 Before you go thumbing through your Constitution trying to find the force and violence clause of Article I, there isn't any. This was another interstate commerce case. It seems the United States charged, the district court convicted, and the court of appeals affirmed that because Farrish committed a robbery and not simply a larceny in taking the car, he had violated the Hobbs Act. n55 That statute provides for the punishment of anyone who "obstructs, delays, or affects commerce or the movement of any article or commodity in com [*551] merce, by robbery or extortion." n56

Okay, we've got the robbery. How did this particular robber in any way or degree obstruct, delay, or affect commerce or the movement of any article or commodity in commerce? The Second Circuit, after acknowledging the existence of Lopez, got this statute out from under it by pointing to its jurisdictional element to bring it within subcategory two of category three. n57 However, that leaves the question of sufficiency of the evidence in the particular case. The Second Circuit, so help me, found that the particular robbery met that jurisdictional element because evidence at trial showed that the garage from which the cars were stolen regularly served cars bearing out-of-state license plates. n58 Therefore, reasoned the circuit, "the jury could easily have drawn the inference that the Garage is utilized by commuters and others traveling to and from Manhattan across state lines, and that robberies of cars from the Garage would discourage such travel." n59 Maybe this meets the letter of Lopez. I'm not so sure. But I do believe that the reasoning of Lopez requires that all federal regulation of commerce to have a stopping point. The reasoning of this case doesn't.

In United States v. Bishop, n60 the Third Circuit had another sort of car theft case. n61 It was a carjacking, a quintessentially local crime of violence. n62 The carjackers were convicted under 18 U.S.C. @ 2119, the Federal Anti-Carjacking Act. n63 Like the Hobbs Act, section 2119 recites a mantra about interstate commerce. n64 Again, this circuit waved at Lopez as it went by, recited the generalities of interstate commerce, and upheld the constitutionality of the statute, both facially and as applied. n65 [*552]

On the bright side, one judge, though only one, on the Bishop panel recognized that Lopez had worked a "sea change," and said so in those words. n66 Judge Becker, after a rigorous analysis applying Lopez to the facts before the court, declared his belief "that noncommercial intrastate crimes, even ones receiving publicity in the national media, are a matter of state and not federal concern." n67 In his view, before Lopez, the inferior federal courts might credibly "conclude that although section 2119 'may stretch the outer limits of the Commerce Clause, under current doctrine it is not unconstitutional.'" n68 But Becker recognized that "Lopez is not just another Supreme Court case, but a watershed." n69

In United States v. Wall, n70 the court considered the constitutionality of 18 U.S.C. @ 1955 in the world after Lopez. n71 Section 1955 punished gambling businesses above a certain size. n72 Here's one step up from the statutes before the other courts. This was commerce. However, nothing in the evidence before the court, and nothing in the jurisdictional element, required any interstate element. n73 The majority in Wall found it sufficient that Congress had taken evidence and made findings that organized crime receives funding from gambling businesses and that organized crime affected interstate commerce. n74

Like Bishop, Wall attracted a dissent. n75 Judge Danny Boggs recognized "that Lopez represents some revival of the slumbering doctrine of enumerated powers." n76 In an exhaustive dissent, he laid out the three Lopez categories, analyzed the sub-elements of category three, and demonstrated them in an impressive flow [*553] chart at page 1463 of the opinion. n77 There's only one thing wrong with Judge Boggs's dissent. Like all dissents, it tells you what the law of the circuit isn't.

Next, lest I be accused of false modesty, I come to a case involving a dissent of my own. National Association of Home Builders v. Babbitt n78 is perhaps the most blatant rejection of Lopez known to me. That case concerned the efforts of a county in California to construct a hospital and access roads thereto. n79 The day before groundbreaking, the Department of Interior added the Delhi Sands Flower-Loving Fly to the Endangered Species List, notified the county that the construction of the hospital, on county land using no federal funds, would harm a colony of six to eight of these flies and would therefore violate federal law. n80 To avoid federal prosecution, county officials were forced to move the hospital complex 250 feet to the north and set aside eight acres of land for the fly, delay construction for a year, and add to the cost to the county taxpayers a sum of around three and a half million dollars. n81

The Fish and Wildlife Service of course was not satisfied. n82 They imposed continuing requirements on the county, including the preservation of a "flight corridor" for the fly, which prevented improvements to a highway intersection necessary to allow emergency access to the hospital and avoid virtual gridlock if the fly ever lets the hospital become open. n83 In defense of the Service, I would note that it has magnanimously dropped its earlier demand that the county close the eight-lane San Bernardino Freeway two months every year in order to permit safe passage for the fly. n84 The Service has further interfered with local brushfire prevention programs and land-use planning all in the name of the Delhi Sands Flower-Loving Fly. n85 [*554]

What is the constitutional justification for the protection of this fly? Obviously, it's the interstate commerce power. Now these flies are found only in a small part of southern California. n86 There is no commercial trade involving these flies. The Endangered Species Act contains no requisite jurisdictional element. n87 Again, we have ham and eggs without either ham or eggs --interstate commerce without either commerce or anything interstate. n88 My colleagues upheld the regulation. n89

My dissent, with which I am well pleased, tracked the Lopez analysis and saw in the statutory protection of a noncommercial activity of a purely local nature affecting an intrastate fly neither regulation of the use of the channels of interstate commerce; nor regulation or protection of the instrumentalities of interstate commerce or persons and things therein; nor regulation of activities having a substantial relation to interstate commerce.

How did my colleagues determine that this noncommercial intrastate regulation fell within the power to regulate interstate commerce? Well, they could not agree on how. Judge Wald found the power in both the second and third categories of regulation. n90 She concluded that "the prohibition on takings of endangered animals falls under Congress' authority 'to keep the channels of interstate commerce free from immoral and injurious uses.'" n91 If you want to know how, I can only suggest that you read the opinion. I don't understand it.

Her second justification is at least understandable. She concluded that the regulated activity substantially affects interstate commerce, by relying on a decision, n92 Terry v. Reno, n93 in which we had upheld the Freedom of Access to Clinic Entrances [*555] Act against a Commerce Clause challenge.

I cannot agree that this fits within category three. Judge Wald concedes that the activity is not commercial; she concedes that the statute does not have the jurisdictional nexus requirement, so that if this regulation is to survive under category three, then it must have a logical stopping point. It must not be so broad as to regulate all human endeavors, especially those traditionally regulated by the states. Judge Wald's rationale has no such stopping point. The presence of absence of biodiversity, neither more nor less than the presence or absence of any other characteristic of physical objects affects interstate commerce. If Congress has the power to make sure there are plenty of species of animals and plants out there in case they might be in commerce some day, then Congress must have the power to make sure there are plenty or few of any other object, thing, or entity, because anything might some day be in commerce. Especially shaky is this rationale as it invades the traditional state province of local land-use regulation.

Judge Henderson rejected Judge Wald's channels-of-commerce justification. n97 However, she agreed with Judge Wald that category three supported congressional authority to control the discomfiting of purely local fauna. n98 While she rejected the biodiversity idea by its terms, she advanced a rationale of her own that is not logically superior to it. n99 In her view, as I understand it, the regulation is within the commerce power because it protects ecosystems which are parts [*556] of other ecosystems, which in turn are interstate, which apparently could affect commerce. n100 No better I think than biodiversity.

Without attempting to catalog all the circuits, I may have left you with the idea that the entire legal world treats Lopez like nature treated the mule: it has neither pride of ancestry nor hope of progeny. Happily, I can tell you that neither sad mulish circumstance is entirely true.

First, Lopez is not without ancestors. That is to say, it need not have been the surprise that so much of the legal community found it to be. At least twice in the five-year period next preceding Lopez, the Supreme Court had given strong signal that the principle of the Tenth Amendment, and therefore the concomitant doctrine of the limited power of the federal government, was alive, if not alive and well. In Gregory v. Ashcroft, n101 the Court considered the claim that the Federal Age Discrimination in Employment Act prevents the state of Missouri from mandating retirement for its elected judges. n102 Justice O'Connor, in an opinion joined in whole by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Souter, and in part by Justices White and Stevens, rejected that claim. n103 She did so recognizing that "just as the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections . . . each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen." n104 There it is, the Tenth Amendment. That's the Supreme Court, expressly recognizing the retained powers of the states under the Tenth Amendment in 1990.

Just two years later, in New York v. United States, n105 Justice O'Connor again wrote for a majority of six, with two more joining [*557] in part. n106 In that case, the Court considered the constitutionality of a statutory scheme that required a state, if it had not met certain conditions, to take title to and possession of radioactive waste upon the request of the generator or owner of that waste. n107 Again citing the Tenth Amendment, Justice O'Connor declared that "Congress may not simply 'commandeer the legislative processes of the States.'" n108 The Tenth Amendment was alive, and if not well, it was getting better. Therefore, it was with some confidence that I bet the California dean that at least three justices would vote to uphold the Fifth Circuit in Lopez. I was convinced that of Justices Rehnquist, O'Connor, Kennedy, Scalia, and Thomas, at least three would be sufficiently committed to the principles of federalism to be right. I was pleasantly informed, though not particularly surprised, when it turned out to be all five. Lopez is not a mulish genetic oddity without ancestors of its kind. But has it progeny, or is it the last of its line? It has progeny.

I grant you, I laid out little hope in my earlier recitation of the somewhat random sampling of circuit opinions. Each of the decisions that I gave you, and most of the decisions of other circuits, uphold statutes or statutory applications against Lopez challenges with but little recognition that Lopez is anything other than "something of a 'sport.'" n109 Indeed, the majority in Bishop expressly observed about Lopez that "despite protestations to the contrary, the winds have not shifted that much." n110 In further negation of the hope of progeny, the Supreme Court granted certiorari in none of those decisions.

An aside at this point, the Supreme Court has granted certiorari on a Ninth Circuit decision upholding the car jacking statute. n111 But the Court has limited that grant in such a way [*558] as to make it possible, if not indeed probable, that the fundamental Lopez question may not be reached. n112 Therefore, at least until that case is argued, I will treat the mule question as if the Supreme Court has granted certiorari on no case on the Lopez theory.

For almost four years, no court found a statute unconstitutional because of a Lopez challenge, and the Supreme Court did not grant cert. on any case upholding a federal statute against the Lopez argument. Where, then, do I find hope?

First, to start from the last mentioned negative and work backward, it is not particularly surprising that the Supreme Court has not granted certiorari to any of the cases. We should not decide from that the Supreme Court considers those cases rightly decided. The Court has made it clear over and over that it does not sit for the correction of error. There are a few characteristics of a case that make it likely to be certiorari worthy. First, does it create a split among circuits? So far, the cases avoiding Lopez do not. Second, does the decision strike down a federal statute as unconstitutional? By definition the anti-Lopez decisions don't do that, either. So I would read little, or perhaps nothing, into the denials of certiorari. But what of the unanimity of the circuits' rejection of any meaningful precedential force for Lopez? Here's the good news. It ain't quite unanimous.

The Fourth Circuit is listening to Lopez. In Brzonkala v. Virginia Polytechnic Institute and State University, n113 that circuit considered the constitutionality of the Violence Against Women Act. n114 That statute, commendable in its goal but questionable in its constitutionality, creates a cause of action against "any person . . . who commits a crime of violence motivated by gender." n115 The plaintiff in Brzonkala had been gang-raped. n116 This was an horrendous tort, but it is not immediately apparent [*559] how it became a federal matter. The plaintiff argued, and a majority of the Brzonkala panel accepted, the proposition that the Violence Against Women Act, n117 was constitutional under the commerce power. n118 The majority quickly admitted that the VAWA did not fit either of the first two categories of constitutional regulation: that is, it did not regulate the use of the channels of commerce, nor did it protect an instrumentality or a thing in interstate commerce. n119

However, that majority accepted the plaintiff's argument that VAWA was constitutional under the third category as a regulation of an activity that substantially affects interstate commerce. n120 The Brzonkala court contrasted the congressional silence in Lopez with voluminous congressional findings in the enactment of VAWA. n121 It called those findings sufficient to create the nexus to interstate commerce, and it upheld the Act. n122 It did so declaring that "the core teaching of Lopez is simply that Congress must ensure that legislation enacted pursuant to its Commerce Clause authority reaches only activities that 'substantially affect interstate commerce.'" n123 Having said that, in the view of the Brzonkala panel, the judiciary has no apparent role left in reviewing constitutionality of a commerce power exercise once Congress has taken evidence and entered some sort of finding.

But Judge Luttig, in dissent, would have affirmed the judgment of the district court declaring the VAWA unconstitutional. He demonstrated that the congressional findings which the majority described with such adjectival words and phrases as "mountain of evidence," "reams," "voluminous," "copious," "detailed," "unequivocal," "abundant," and "persuasive," finally amounted to a "lone conclusory sentence" on the commerce power question: "Crimes of violence motivated by gender have a sub [*560] stantial adverse effect on interstate commerce." n124 Judge Luttig declared --I think correctly -- that a one-sentence conclusion without underpinnings is "functionally no different from the complete absence of express congressional findings" rejected in Lopez. n125 "This single conclusory sentence no better 'enables [the court] to evaluate the legislative judgment that the activity in question substantially affects interstate commerce'" than did that absence in Lopez. n126 Judge Luttig's dissent powerfully refutes the majority's commerce clause conclusion.

Why do I find in the Luttig dissent any more hope than in the previous dissents of Judges Becker, Boggs, and Sentelle? Because of what has happened in the Fourth Circuit since then. The first thing that has happened since Brzonkala happened almost immediately after it. That was the decision in United States v. Wilson. n127

The Wilson case was an appeal from criminal convictions for felony violations of the Clean Water Act. n128 The Clean Water Act prohibits the discharge without a permit of pollutants into "navigable waters." n129 Concededly, the federal government has regulatory power over "waters that are navigable in fact." n130 In the Clean Water Act, however, Congress extended its regulatory power over the waters of the United States to waters that are not navigable "under the classical understanding of that term." n131 The Corps of Engineers construed that extended regulatory power to cover "all other waters . . . the use, degradation, or destruction of which could affect interstate or foreign commerce." n132

On the evidence before the Court, the defendants had degraded, if anything, some damp land they were attempting to [*561] develop, which did not abut any navigable waterway. n133 The Fourth Circuit reversed, but without an agreed rationale. n134 Judge Niemeyer reversed, in part, on the theory that under Lopez, the regulation could not be valid unless it could be shown that the activity in question substantially affected interstate commerce, and the jury was so instructed. n135 He also found error in the Court's instructions on mens rea. n136 Judge Luttig, of Brzonkala fame, joined in the judgment, but not in the Lopez rationale. n137 He concurred in the mens rea part of the opinion. n138

Now you may think that means we had lost him. Not so. He separated himself from Judge Niemeyer on the basis of Brzonkala; not because he thought Brzonkala was correct, but because he thought it controlling. n139 Judge Niemeyer thought it sufficiently distinguishable. Judge Luttig didn't. By way of a little further explanation, and to lead into the really good news, in every circuit, a panel decision states the controlling law of that circuit until it is overruled either by the Supreme Court or by the circuit sitting en banc. Judge Luttig said, in effect, we can't get around Brzonkala unless the circuit takes it en banc. Thereby hangs the good news, the Fourth Circuit took it en banc. n140

Now the really good news: the Fourth Circuit en banc opinion is out. Judge Luttig, writing for a seven-to-four majority, began his decision: "We the People, distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves." n141 That said, he of course followed Lopez and reversed the panel, declar [*562] ing the Violence Against Women Act unconstitutional. It is a masterful opinion and one that I recommend to you. Even so, we now have what we have not had before: a decision applying Lopez that creates a circuit split as to its application and more importantly strikes down a federal statute. At this point it becomes a near certainty that a petitioner will apply for certiorari and the Supreme Court will grant it.

What happens then? I do not purport to have 20/20 foresight. But Lopez says what it says, and a majority of the Court joined it. Some have pointed out that Justices Kennedy and O'Connor joined in separate opinions which ring somewhat milder than the majority opinion of Chief Justice Rehnquist. But as Judge Becker points out in his dissent in Bishop, the Kennedy and O'Connor separate opinions were not narrower separate concurrences. n142 That is, they both fully joined in the Chief Justice's strong opinion, they merely added their own commentary thereto. n143 And furthermore, Justice Thomas, in Lopez, issued a separate concurrence powerfully expressing his conclusion that the majority opinion did not go nearly far enough. n144

And, there is some hopeful further Supreme Court jurisprudence since the Lopez decision. In Printz v. United States, n145 the Supreme Court, in a decision by Justice Scalia, joined by the others from the Lopez five, struck down a portion of the Brady Act that required state law enforcement officers to administer a federally enacted regulatory scheme. n146 It did so finding no implication in the Constitution or its history of a power in the federal government to commandeer the resources of its parallel sovereigns in the states. n147 Granted, this protects more of New York v. United States than of Lopez. But the Scalia opinion expressly cites Lopez with approval, n148 and, as we have [*563] already seen, New York, like Lopez, provides clear evidence that the Supreme Court sees federalism as still alive. The Supreme Court speaks, and at last one circuit is listening.

FOOTNOTES:

n1 The Federalist No. 45, at 363 (James Madison) (John C. Hamilton ed., 1885).

n2 U.S. Const. art. I, @ 8, cl. 3.

n3 18 U.S.C. @ 922(q)(2)(A) (1994 & Supp. III 1997).

n4 United States v. Lopez, 514 U.S. 549, 551 (1995).

n5 See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 2 (1824).

n6 See id. at 1-2.

n7 See id. at 295-96.

n8 See id. at 189-206.

n9 See id. at 189.

n10 Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 189 (1824).

n11 See id. at 205-06.

n12 Id. at 194.

n13 Joseph Story, Commentaries on the Constitution @ 526, at 373 (1833).

n14 Id. @ 525, at 372.

n15 Id.

n16 See Wickard v. Filburn, 317 U.S. 111, 118-19 (1942).

n17 2 F.3d 1342 (5th Cir. 1993).

n18 See id. at 1367-68.

n19 See United States v. Lopez, 514 U.S. 549, 550 (1995).

n20 Lopez, 514 U.S. at 558.

n21 Id. at 558-59 (citations omitted).

n22 Id. at 559 (citing Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968), overruled by National League of Cities v. Usery, 426 U.S. 833, 840 (1976)).

n23 Lopez, 514 U.S. at 559 (citing Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968), overruled by National League of Cities v. Usery, 426 U.S. 833, 840 (1976)).

n24 National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1064 (D.C. Cir. 1997) (Sentelle, J., dissenting) (analyzing Lopez, 514 U.S. at 559-65) (citing United States v. Wall, 92 F.3d 1444, 1455-56 (6th Cir. 1996) (Boggs, J., dissenting in part)).

n25 See Lopez, 514 U.S. at 559, 567.

n26 See id. at 559.

n27 Id. at 560.

n28 See Lopez, 514 U.S. at 560.

n29 See id. at 560-61.

n30 See id. at 561.

n31 Lopez, 514 U.S. at 562 (quoting United States v. Bass, 404 U.S. 336, 337 (1971)).

n32 See id.

n33 Bass, 404 U.S. at 347, quoted in Lopez, 514 U.S. at 562.

n34 See Lopez, 514 U.S. at 562.

n35 See id. at 563-64.

n36 Id. at 564.

n37 Id.

n38 See Lopez, 514 U.S. at 564.

n39 U.S. Const. amend. X.

n40 See H. Jefferson Powell, Enumerated Means and Unlimited Ends, 94 Mich. L. Rev. 651, 653 (1995).

n41 Sara L. Gottovi, Note, United States v. Lopez, Theoretical Bang and Practical Whimper? An Illustrative Analysis Based on Lower Court Treatment of the Child Support Recovery Act, 38 Wm. & Mary L. Rev. 677, 721 (1997).

n42 86 F.3d 1238 (1st Cir. 1996).

n43 See id. at 1241.

n44 18 U.S.C. @ 844(i) (1994).

n45 See DiSanto, 86 F.3d at 1241, 1243.

n46 See id. at 1241-42.

n47 See id. at 1245.

n48 DiSanto, 86 F.3d at 1244 (quoting United States v. Medeiros, 897 F.2d 13, 16-17 (1st Cir. 1990)).

n49 See id. at 1246-48.

n50 See id. at 1244.

n51 122 F.3d 146 (2d Cir. 1997).

n52 See id. at 147.

n53 See id. at 147, 149.

n54 See id. at 147.

n55 See id. at 149.

n56 18 U.S.C. @ 1951(a) (1994).

n57 See Farrish, 122 F.3d at 149.

n58 See id.

n59 Id.

n60 66 F.3d 569 (3d Cir. 1995).

n61 See id. at 571.

n62 See id.

n63 See id. at 572.

n64 See generally 18 U.S.C. @ 2119 (1994 & Supp. III 1997).

n65 See Bishop, 66 F.3d at 575-90.

n66 See Bishop, 66 F.3d at 591 (Becker, J., dissenting).

n67 Id. at 603.

n68 Id. (quoting United States v. Overstreet, 40 F.3d 1090, 1093 (10th Cir. 1994)).

n69 Id.

n70 92 F.3d 1444 (6th Cir. 1996).

n71 See id. at 1445-52.

n72 18 U.S.C. @ 1955 (1994).

n73 See Wall, 92 F.3d at 1450.

n74 See id.

n75 See id. at 1454 (Boggs, J., dissenting).

n76 Id.

n77 See id. at 1454-73.

n78 130 F.3d 1041 (D.C. Cir. 1997).

n79 See id. at 1043.

n80 See id. at 1060 (Sentelle, J., dissenting).

n81 See Babbitt, 130 F.3d at 1060.

n82 See id.

n83 See id.

n84 See id.

n85 See id.

n86 See Babbitt, 130 F.3d at 1043-44.

n87 See id. at 1064-65 (Sentelle, J., dissenting).

n88 See id. at 1061.

n89 See id. at 1057.

n90 See Babbitt, 130 F.3d at 1046, 1049.

n91 Id. at 1046 (quoting United States v. Lopez, 514 U.S. 549, 558 (1995)).

n92 See id. at 1049.

n93 101 F.3d 1412 (D.C. Cir. 1997).

n94 See Terry, 101 F.3d at 1413-14.

n95 See id. at 1417.

n96 See National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041,1053-54 (D.C. Cir. 1997).

n97 See Babbitt, 130 F.3d at 1058 (Henderson, J., concurring).

n98 See id. at 1059.

n99 See id.

n100 See Babbitt, 130 F.3d at 1059 (Henderson, J., concurring).

n101 501 U.S. 452 (1991).

n102 See id. at 455.

n103 See id. at 454, 456.

n104 Id. at 461-62 (quoting Sugarman v. Dougall, 413 U.S. 634, 647 (1973) (citations omitted)).

n105 505 U.S. 144 (1992).

n106 See New York, 505 U.S. at 147.

n107 See id. at 149.

n108 Id. at 161 (quoting Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264, 288 (1981) (alteration in original)).

n109 See, e.g., United States v. Bishop, 66 F.3d 569, 591 (3d Cir. 1995) (Becker, J., dissenting).

n110 Id. at 590.

n111 See United States v. Oliver, 60 F.3d 547 (9th Cir. 1994), rev'd sub nom., Jones v. United States, 526 U.S. 227 (1999).

n112 See Jones v. United States, 118 S. Ct. 1359, 1405 (1998).

n113 132 F.3d 949 (1997), rev'd on reh'g, 169 F.3d 820 (4th Cir.) (en banc), cert. granted sub nom., Brzonkala v. Morrison, No. 99-29, 1999 U.S. LEXIS 4745 (U.S. Sept. 28, 1999).

n114 See id. at 953.

n115 42 U.S.C. @ 13981(c) (1994).

n116 See Brzonkala, 132 F.3d at 953.

n117 42 U.S.C. @ 13981 (1994).

n118 See Brzonkala, 132 F.3d at 953.

n119 See id. at 965.

n120 See id. at 968.

n121 See id. at 965.

n122 See id. at 973.

n123 Brzonkala, 132 F.3d at 973.

n124 Brzonkala, 132 F.3d at 976 (Luttig, J., dissenting).

n125 Id. (citing United States v. Lopez, 514 U.S. 549, 562 (1995)).

n126 Id. (quoting Lopez, 514 U.S. at 563).

n127 133 F.3d 251 (4th Cir. 1997).

n128 See id. at 253.

n129 See 33 U.S.C. @@ 1311(a), 1362(12)(A) (1994).

n130 Wilson, 133 F.3d at 256.

n131 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985).

n132 33 C.F.R. @ 328.3(a)(3) (1993).

n133 See Wilson, 133 F.3d at 254-55.

n134 See Wilson, 133 F.3d at 266.

n135 See id. at 258.

n136 See id. at 261-62.

n137 See id. at 266 (Luttig, J., concurring).

n138 See id.

n139 See Wilson, 133 F.3d at 266.

n140 See Brzonkala v. Virginia Polytechnic Inst. & State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc).

n141 Id. at 825-26.

n142 See United States v. Bishop, 66 F.3d 569, 591 (3d Cir. 1995).

n143 See id.

n144 See United States v. Lopez, 514 U.S. 549, 584-602 (1995).

n145 521 U.S. 898 (1997).

n146 See id. at 900-01, 933.

n147 See id. at 935.

n148 See id. at 920.