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Congress's Power Under the Commerce Clause: The Impact of Recent Court Decisions

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Abstract:

From 1937 to 1995, fostered by expansive Supreme Court jurisprudence, the United States Congress operated under a generous view of its authority under the Commerce Clause that permitted the federal courts to consider the cumulative effects of legislation when determining whether a congressional action substantially affected interstate commerce. During that period no congressional legislation had been held unconstitutional under the Commerce Clause. In 1995, and again in 2000, however, the Court held two statutes, the Gun Free School Zones Act and the Violence Against Women Act, unconstitutional as exceeding Congress's authority under the Commerce Clause. These cases arguably created a tension between an expansive view of the Commerce Clause exemplified by the "aggregation theory," and a more constrained view aided by the distinction between "economic" and "non-economic activity." Starting in 2003, the Ninth Circuit Court of Appeals began utilizing the Supreme Court's more modern analysis to find federal legislation that makes the possession of child pornography, and homemade machineguns unconstitutional on the grounds that the statutes exceeded the scope of Congress's power under the Commerce Clause. In addition, the Ninth Circuit has held sections of the Controlled Substances Act unconstitutional insofar as they require the prosecution of persons for possessing and using marijuana for approved medicinal purposes.

These statutes were each found to be too great an intrusion into what have been traditionally local matters and as such could not be sustained under the Commerce Clause. Should the Supreme Court grant certiorari and uphold any of these cases, the result could potentially be a further erosion of Congress's ability to regulate criminal behavior that occurs primarily intrastate. Such an erosion could have an impact not only on traditional criminal legislation, but also on terrorism and homeland security related legislation. While there may be other available sources of constitutional power, the Commerce Clause has traditionally been relied upon when legislating in these areas; therefore, federal case law discussing alternative sources of power is scarce.

This report will first review the current Supreme Court case law with respect to the Commerce Clause. Second, it will examine the analysis used and the results of the three lower court opinions. Finally, two areas of tension that appear to exist within the Court's jurisprudence, and the potential implications that resolution of these conflicts may have on congressional power under the Commerce Clause will be examined.