Why Is Congress Still Regulating Noncommercial Activity?
Kreit, Alex, Harvard Journal of Law & Public Policy
In popular news media, the United States Court of Appeals for the Ninth Circuit is regularly characterized as left of the mainstream. Fox News commentator Bill O'Reilly once went so far as to say that "many of the federal judges sitting on that bench will not enforce the drug laws because they want legalization of narcotics." (1) The claim might strike some as extravagant rhetoric or the product of an overactive imagination, (2) but it's possible that O'Reilly was actually referencing a real opinion by the Ninth Circuit. In Raich v. Ashcroft, (3) the Ninth Circuit granted a preliminary injunction to prevent the federal government from enforcing the Controlled Substances Act ("CSA") (4) against two medical marijuana patients and their caregivers. Raich, however, is a far cry from the liberal judicial activism Bill O'Reilly made it out to be. In fact, the decision was based on the decidedly conservative Commerce Clause cases United States v. Lopez (5) and United States v. Morrison. (6) The Raich court held that enforcement of the CSA would be unconstitutional as applied to the plaintiffs because they were engaged in purely intrastate, noneconomic activity outside the scope of Congress's Commerce Clause power. (7) The plaintiffs, who manufactured and possessed marijuana but did not engage in its sale, had sued the federal government for a preliminary injunction on Commerce Clause grounds. (8)
The Ninth Circuit's dedicated application of Lopez and Morrison in 2003 was not limited to liberal causes like medical marijuana. (9) They also issued two other important Commerce Clause opinions: the first, United States v. McCoy, overturning a conviction for child pornography possession, (10) and the second, United States v. Stewart, striking a conviction for possession of a machine gun. (11) Judge Alex Kozinski, the Ninth Circuit's leading conservative, (12) authored the Stewart opinion, while McCoy was written by prominent liberal Judge Stephen Reinhardt. (13) Together, the three cases demonstrate a slowly increasing willingness on the part of lower courts to take seriously the Supreme Court's directives in Lopez and Morrison. More importantly, however, these decisions indicate that the "broader scheme" doctrine that has hitherto been almost universally overlooked by scholars (14) will play a fundamental role in determining the limits and meaning of the post-Lopez Commerce Clause.
The doctrine, mentioned only twice in Lopez, allows Congress to regulate activity that is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." (15) What that allows, however, is not entirely clear. Does it mean, for instance, that Congress can regulate gun possession in a school zone (16) if it does so under a regulatory scheme that seeks to eliminate the gun trade entirely, (17) criminalizes gun possession as part of the effort, and tacks on a penalty enhancement for doing it in a school zone for good measure? (18) In other words, does the mere inclusion of an otherwise impermissible regulation in a larger regulatory scheme save it?
Most lower courts have said, in a word, yes. (19) More alarmingly, they have almost uniformly adopted their expansive interpretations without any serious exploration of the broader scheme doctrine's meaning, limits, history, or other possible interpretations. (20) The First Circuit's treatment of the broader scheme issue in its discussion of the Youth Handgun Safety Act ("YHSA") in United States v. Cardoza (21) is instructive. Cardoza challenged convictions related to aiding and abetting juvenile gun possession in violation of the YHSA. (22) In a one paragraph discussion, the First Circuit determined that "the possessory prong of the YHSA" (23) was an essential part of a broader scheme, reasoning that it was part of Congress's effort to regulate supply and demand of handguns:
The YHSA can be thus seen as criminalization of the two points where the prohibited commerce finds its nexus; the demand for the firearms (possession), and the sale or transfer designed to meet that demand. …