Uncertainty Surrounds Court Ruling on Commerce but Experts Agree Ruling Limits Congress, May Jeopardize Laws

By William H. Freivogel Of the Post-Dispatch | St Louis Post-Dispatch (MO), May 2, 1995 | Go to article overview

Uncertainty Surrounds Court Ruling on Commerce but Experts Agree Ruling Limits Congress, May Jeopardize Laws


William H. Freivogel Of the Post-Dispatch, St Louis Post-Dispatch (MO)


ONE LAW PROFESSOR calls it the biggest decision in half a century. Another calls it a blip on the constitutional landscape.

The simple truth is that not even the experts know the long-range importance of last week's decision in U.S. vs. Lopez, in which the court took some of the wallop out of Congress' strong right fist - its power to regulate most anything it pleases under its authority to regulate interstate commerce.

For the first time since 1936, the court limited Congress' power to use the commerce clause to criminalize and regulate activities that once were the province of the states. Voting 5-4, the court overturned the 1990 Gun-Free School Zones Act, which made it illegal to have a gun within 1,000 feet of a school.

Despite uncertainties about the decision, lawyers agree that it:

Reacts to the break-neck speed with which Congress has been federalizing criminal law. Federal laws on carjackings, arson, money laundering, extortion, streets gangs, drug-free schools and rape may now be in question.

Threatens environmental laws because Congress often didn't explain the connection between those laws and interstate commerce.

Puts the court in sync with Congress' emphasis on restoring federalism by returning power to the states.

"It's almost as if they signed on to the Contract with America," says Alan J. Howard of St. Louis University Law School.

That's part of the problem, says Bruce La Pierre, a Washington University law professor. An avowedly conservative court should let Congress make political decisions, he says.

"Why is it that a conservative court feels compelled to intervene when the proposals to expand state power are being made in Congress?" he asked. "There is a measure of hypocrisy to be so interested in judicial activism."

Kathleen F. Brickey, another law professor at Washington University, believes Lopez is partly a reaction to Congress' fondness for federal crimes. There are now more than 3,000 federal crimes, many based on the commerce clause. Chief Justice William H. Rehnquist, who wrote Lopez, has frequently cautioned Congress against the trend.

But Brickey doesn't believe that the decision will do much to slow down the trend. "Doing something as popular as being tough on crime is politically irresistible," she says.

***** A History Lesson

Every school-age child in America has a history lesson on the great U.S. Supreme Court decisions of Chief Justice John Marshall. The 1824 Gibbons vs. Ogden opinion is one.

Aaron Ogden, a former New Jersey governor, operated a ferry between Elizabethtown, N.J., and New York City under a monopoly granted by New York. Thomas Gibbons, his former partner, ran a rival boat licensed by the federal government.

A New York court ordered Gibbons to stop his ferry. In overturning that ruling, Marshall laid the cornerstone of broad congressional authority to regulate interstate commerce. He wrote:

The commerce power "is the power to regulate. . . . This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than (those that) are prescribed in the Constitution."

During the first third of this century, the Supreme Court took a much narrower view than Marshall. …

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