Commerce!

Michigan Law Review
Volume 94 Issue 3
1995
Commerce!
Deborah Jones Merritt
Ohio State University
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COMMERCE!
Deborah Jones Merritt*
Commerce!
(sung to the tune of Convoy
by an actor dressed as an FBI agent)l
His name was farmer F1lburn, we looked in on his wheat sales.
We caught him exceeding his quota. A criminal hard as nails.
He said, "I don't sell none interstate."
I said, "That don't mean cow flop.
We think you're affecting commerce."
And I set fire to his crop, HOT DAMN!
Cause we got interstate commerce
Ain't no where to run!
We gone regulate you
That's how we have fun.
You made a call last Thursday long distance to Bayonne.
We gone put you out of business, an' disconnect your phone.
COMMERCE!
When I graduated from law school in 1980, my classmates and I
believed that Congress could regulate any act - no matter how
local - under the Commerce Clause. Harvesting wheat for home
consumption in Ohio,2 selling a plate of ribs at a local cafe in Ala-
bama,3 and threatening to break the legs of a New York butcher:4
all of these activities fell within the vast sweep of the Commerce
Clause. With rhetorical flourish, Congress and the Supreme Court
had turned the most local activities into flotsam on a raging stream
of interstate commerce. My classmates parodied the swollen Com-
merce Clause with the lyrics reprinted above and performed the
song as part of Columbia Law School's annual musical.
* John Deaver Drinko-Baker & Hostetler Professor of Law, Ohio State University.
A.B. 1977, Harvard University; J.D. 1980, Columbia University. - Ed. I could not have
written this article without the assistance of my excellent research assistants, Jennifer Cihon
(J.D. class of 1997, Ohio State University) and Sandra Dickinson (J.D.-Ph.D. Educ. class of
1996, Ohio State University). I also thank Francis Beytagh, James Brudney, Sharon Davies,
Edward Foley, David Goldberger, Andrew Leipold, Thomas Mengler, Andrew Merritt, Alan
Michaels, James Pfander, John Quigley, and Barbara Snyder for their helpful comments on
an earlier draft of this article.
1. Lyrics from the 1980 "Rites of Spring" Musical at Columbia Law School, reprinted in 2
CoLUM. Y.B. 101 (1980).
2. See Wickard v. Filburn, 317 U.S. 111 (1942).
3. See Katzenbach v. McClung, 379 U.S. 294 (1964).
4. See Perez v. United States, 402 U.S. 146 (1971).
674
December 1995] Commerce! 675
Enlightened by this song and confident that Congress could reg-

ulate any conduct under modem interpretations of the Commerce
Clause, I originally dismissed the Fifth Circuit's decision in United
States v. Lopez5 as absurd. Of course Congress could regulate the
possession of guns near schools. Don't guns travel in interstate
commerce? Don't schools receive supplies from other states?
Didn't the principal of Lopez's San Antonio 'high school occasion-
ally call a colleague in New Orleans or Bayonne? Any second-year
law student could devise a rationale linking the Gun-Free School
Zones Act of 19906 to interstate commerce. Indeed, I suggested
last year that the Fifth Circuit's Lopez decision was a mistake
grounded in the Supreme Court's failure to distinguish adequately
between an outdated territorial concept of federalism and a more
contemporary autonomy model of federal-state relations.7
The Supreme Court, of course, disagreed. Surprising most aca-
demics and lower court judges, the Court ruled that the Gun-Free
School Zones Act exceeded Congress's power under the Commerce
Clause.8 What does the Court's decision mean for the future of
congressional regulation? Can Farmer Filbum begin raising mari-
juana or machine guns on his Ohio farm - as long as he retains the
crop for home consumption and as long as the state of Ohio does
not object? Will my classmates sing a new commerce tune at our
twentieth reunion? ·
In this article, I explore the Supreme Court's new definition of
"Commerce ... among the several States."9 In Part I, I examine
three new principles that Lopez announces and that could signifi-
cantly rework the Court's Commerce Clause jurisprudence. Part II,
however, shows that these principles must be understood in the
context of almost a dozen factors narrowing the Supreme Court's
Lopez decision. Part II also demonstrates that the lower courts
5. 2 F.3d 1342 (5th Cir. 1993), affd., 115 S. Ct. 1624 (1995).
6. 18 U.S.C. § 922(q){1)(A) (1994).
7. See Deborah Jones Merritt, The Three Faces of Federalism: Finding a Formula for the
Future, 47 VAND. L. REv. 1563, 1582-83 {1994).
8. See United States v. Lopez, 115 S. Ct. 1624 (1995). The 5-4 result defied the predic-
tions of most constitutional scholars and judges. See, e.g., Christopher L. Eisgruber &
Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutiona~ 69
N.Y.U. L. REv. 437, 460 n.80 (1994) ("We believe the Court should, and likely will, reverse
the decision of the court of appeals."); Sandra Guerra, The Myth of Dual Sovereignty: Mul-
tijurisdictional Drug Law Enforcement and Double Jeopardy, 73 N.C. L. REv. 1159, 1174 n.65
(1995) ("The Fifth Circuit's decision in Lopez will likely be reversed because it flies in the
face of most Commerce Clause jurisprudence."). But see United States v. Daniels, 874 F.
Supp. 1255, 1257 (N.D. Ala. 1995) (predicting, after reports of the oral argument before the
Supreme Court in Lopez, that the Court would affirm the Fifth Circuit's decision).
9. U.S. CoNST. art. I, § 8, cl. 3.
676 Michigan Law Review [Vol. 94:674
have understood the contextual uniqueness of Lopez and already

have distinguished the decision in upholding more than half a dozen
broad exercises of congressional authority. Part III then shows that
the Supreme Court is unlikely to expand Lopez by building upon its
principles or striking down other congressional statutes. A host of
signals from the Supreme Court's 1994 Term suggests that the
Court does not intend to apply Lopez broadly.
Lopez thus emerges as an important, but limited, rein on con-
gressional power. The decision underscores both that Congress's
authority under the Commerce Clause knows some bounds and
that the Supreme Court will enforce that boundary through judicial
review. Both of these principles have been subject to doubt in re-
cent years,10 so Lopez marks a minor constitutional revolution.
The practical effect of the revolution in the courts, however, will be
small.11
If Lopez imposes only a minor restraint on congressional power
- a line drawn across the far reaches of the regulatory sand -
then it is important to articulate the limiting features of the Court's
decision. In the final part of this article, I draw upon the principles
of fuzzy logic, a contemporary theory of mathematical sets with
powerful implications for legal analysis, to summarize the Court's
10. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 556 (1985) (holding
that the political process, rather than judicial enforcement, is "the principal and basic limit on
the federal commerce power"). The Court in New York v. United States, 505 U.S. 144 (1992)
alluded to doubts on the first principle:
The volume of interstate commerce and the range of commonly accepted objects of gov-
ernment regulation have •.. expanded considerably in the last 200 years, and the regula-
tory authority of Congress has expanded along with them. As interstate commerce has
become ubiquitous, activities once considered purely local have come to have effects on
the national economy, and have accordingly come within the scope of Congress' com-
merce power.
505 U.S. at 158; see also infra notes 66-71 and accompanying text.
11. Lopez may have a somewhat greater impact in Congress by encouraging members to
take federalism seriously and strengthening the hand of legislators who oppose national legis-
lation. The concurring opinion of Justices Kennedy and O'Connor explicitly invited this type
of congressional reaction:
[I]t would be mistaken and mischievous for the political branches to forget that the
sworn obligation to preserve and protect the Constitution in maintaining the federal
balance is their own in the first and primary instance..•. The political branches of the
Government must fulfill this grave constitutional obligation if democratic liberty and the
federalism that secures it are to endure.
115 S. a. at 1639 (Kennedy, J., concurring, joined by O'Connor, J.). Some legislators have
invoked Lopez already to support proposals narrowing federal power. See, e.g., Spencer
Abraham, "Dear Colleague" to Require All Laws to Contain a Statement of the Constitutional
Authority Pursuant to Which They Are Enacted, July 11, 1995, available in LEXIS, Legis
Library, CRNWS file; Brown Will Introduce Bill to Limit Congress' Ability to Pre-Empt State
Law, July 12, 1995, available in Lexis, Legis library, BNAMB file. Political forces driving in
that direction, however, were apparent in Congress well before the Supreme Court an-
nounced Lopez. Even in Congress, therefore, it is not clear how strong the practical effect of
· Lopez will be.
holding in Lopez. Fuzzy logic captures the many facets of Lopez

and also demonstrates that the decision is capable of yielding a rea-
sonably certain line between interstate commerce and other con-
duct. By applying fuzzy logic in this context, I aim both to
illuminate Lopez and to demonstrate the utility of this analysis in
constitutionallaw.12
I. UNITED STATEs v. LoPez.· THREE NEw PRINCIPLES
The Lopez decision works three important changes in the

Supreme Court's construction of the Commerce Clause. First, the
decision holds that congressional power extends only to activity
that "substantially affects" interstate commerce, rather than to any
conduct that more broadly "affects" commerce among the states.
Second, the opinion reduces judicial deference to congressional en-
actments because it subjects federal statutes to review under a
toughened rational basis standard. Finally, the decision declares
that Congress's power under the Commerce Clause cannot be all-
encompassing; however broadly the Court construes the phrase
"Commerce ... among the several States," rationales for congres-
sional regulation must recognize some bounds on federal powerP
I explore each of these changes briefly below. As I demonstrate
in Part IT of this article, however, these principles cannot be consid-
ered in isolation. The principles acquire their full meaning only
through consideration of the facts and context of Lopez. I explore
those aspects of the decision more fully after introducing the deci-
sion's three major principles.
A. Substantial Effects
Modem Supreme Court cases have recognized three categories
of legislation authorized by the Commerce Clause: (1) statutes reg-
ulating "the use of the channels of interstate commerce;" (2) laws
governing "the instrumentalities of interstate commerce, or persons
or things in interstate commerce, even though the threat may come
12. For those who would rather "say it in song," I close with a new version of Commerce!
See infra text accompanying note 324. Only readers who study the footnotes and follow this
arcane cross-reference will be able to skip ahead to the song.
13. This final principle is closely related to the first two: the Court's commitment to
enforcing an outer limit on Congress's commerce power drove both its endorsement of the
"substantial" effects test and its toughening of rational basis review. The Court's quest for an
outer boundary to the Commerce Clause, however, transcends its other doctrinal changes
and merits separate discussion. The rhetoric in Lopez, strongly rejecting the Government's
arguments that would have left the commerce power unbounded, suggests that the Court will
adhere to this third principle even if it abandons the first two.
only from intrastate activities;" and (3) statutes regulating activities

"that substantially affect interstate commerce." 14 The Lopez Court
affirmed these three prongs of congressional power but under-
scored that regulations falling in the third category must bear a
"substantial" relationship to interstate commerce.1s
The magnitude of this change is debatable. As Chief Justice
Rehnquist pointed out in his opinion for the Lopez majority and as
Justice Breyer acknowledged in the principal dissent, several previ-
ous opinions had used the word "substantial" to describe the inten-
sity of the required relationship between the regulated activity and
interstate commerce.16 Even when the Court omitted the word
"substantial" from its earlier Commerce Clause discussions, it may
not have attached meaning to that omissionP Lopez, therefore,
changed this aspect of the Court's rhetoric slightly, if at all.
More important is the manner in which the Lopez majority em-
ployed the word "substantial." Justice Breyer's dissent interpreted
"substantial effect" as a quantitative measure.1s He convincingly
showed that gun possession in schools has a sizable dollar effect on
the economy by impairing the development of human capital and
endangering the government's own multibillion dollar investment
14. Lopez, 115 S. Ct. at 1629-30; see also Hodel v. Virginia Surface Mining & Reclama-
tion Assn., 452 U.S. 264, 276-77 {1981); Perez v. United States, 402 U.S. 146, 150 (1971).
15. See 115 S. Ct. at 1630. The dissenting Justices offered a different semantic formula-
tion, suggesting that Congress may regulate any activities that "significantly affect" interstate
commerce. See 115 S. Ct. at 1657 (Breyer, J., dissenting, joined by Stevens, Souter, and
Ginsburg, JJ.). The dissenters contended that requiring a "substantial" rather than "signifi-
cant" effect "implies a somewhat narrower power" in Congress but also urged that the result
in Lopez would be the same under either formulation. 115 S. Ct. at 1657.
16. See, e.g., North Am. Co. v. SEC, 327 U.S. 686, 705 (1946) ("substantial relationship to
interstate commerce"); Wickard v. Filbum, 317 U.S. 111, 125 {1942) ("substantial economic
effect"); United States v. Darby, 312 U.S. 100, 119-20 {1941) ("substantial effect"); NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) ("close and substantial relation"); see
also Maryland v. Wirtz, 392 U.S. 183, 197 n.27 {1968) (Congress may not "use a relatively
trivial impact on commerce as an excuse for broad general regulation of state or private
activities.").
17. In Hodel, the Court spoke repeatedly of activities that "affect" interstate commerce,
although it once alluded to "substantial effects." See 452 U.S. at 280. Justice Rehnquist
noted this discrepancy in an opinion concurring in the judgment. See 452 U.S. at 312
(Rehnquist, J., concurring); see also 452 U.S. at 305 ("[W]e often seem to forget the doctrine
that laws enacted by Congress under the Commerce Clause must be based on a substantial
effect on interstate commerce.") {Burger, CJ., concurring). Justice Rehnquist's concurring
opinion foreshadowed the result adopted by the majority in Lopez; see also infra notes 38-41
and accompanying text {discussing Justice Rehnquist's proposed standard of review in Hodel,
452 U.S. at 264).
18. See, e.g., 115 S. Ct. at 1663 {Breyer, J., dissenting) ("The Court believes the Constitu-
tion would distinguish between two local activities, each of which has an identical [dollar]
effect upon interstate commerce, if one, but not the other, is 'commercial' in nature.").
in education.19 Breyer was puzzled, even outraged, that the major-

ity did not agree that this effect was "substantial."
The majority, however, did not use the adjective "substantial" to
connote a simple tally of effects, a constitutional gate that would
open once a prescribed number of interstate dollars had passed.
The majority's use of "substantial effect" is more akin to the notion
of proximate cause in tort law. The Lopez majority meant that the
relationship between the regulated activity and interstate com-
merce must be strong enough or close enough to justify federal in-
tervention, just as the concept of proximate cause means that a
defendant's negligence must be closely enough related to the plain-
tiff's injury to justify forcing the defendant to bear the costs of the
injury.20 Both of these judgments are qualitative ones, resting on a
host of contextual factors, rather than simple quantitative
calculations.21
Applying this notion of "substantial effects," the majority re-
jected Justice Breyer's - and the Government's - arguments be-
cause they proved too much. The latter arguments would have
allowed the national government to regulate any activity at all. The
majority was seeking a more special or distinctive relationship to
interstate commerce under the rubric "substantial."
This use of "substantial" in Lopez draws some support from
previous cases. In NLRB v. Jones & Laughlin Steel Corp., 22 the
Court approved the congressional regulation of activities that have
"a close and substantial relation to interstate commerce" or that
enjoy a "close and intimate relation" to that commerce, contrasting
those activities with conduct that has only "indirect and remote"
effects on interstate commerce.23 These words imply not a mere
measure of quantitative effect on interstate commerce but the
search for a particular type of relationship to that commerce. Even
19. See 115 S. Ct. at 1659-62, 1664 (Breyer, J., dissenting).

20. See, e.g., W. PAGE KEETON ET AL., PROSSER AND KEETON ON TilE LAW OF TORTS
§ 42, at 273 (5th ed. 1984) (explaining that proximate cause refers "to those more or less
undefined considerations which limit liability even where the fact of causation is clearly es-
tablished"). As Justice Andrews noted in his famous Palsgraf dissent, "it is all a question of
fair judgment." Palsgraf v. Long Island R.R., 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J.,
dissenting).
21. For a discussion of the many factors driving the Court's analysis in Lopez, see infra
notes 72-153 and accompanying text. For a discussion of how legal analysis can articulate this
type of multifactored analysis through fuzzy logic, see infra notes 290-320 and accompanying
text.
22. 301 u.s. 1 (1937).
23. 301 U.S. at 37; see also 301 U.S. at 38 (Intrastate rates "bear such a close relation to
interstate rates."); 301 U.S. at 38 ("close and intimate effect"); 301 U.S. at 40 ("direct and
substantial effect").
680 Michigan Law Review (Vol. 94:674
in Heart of Atlanta Motel v. United States, 24 a case broadly constru-

ing congressional power, the Court declared that "the determina-
tive test" under the Commerce Clause is whether "the activity
sought to be regulated ... has a real and substantial relation to the
national interest."25 Once again, the words connote a qualitative
judgment about whether the link between the regulated activity and
interstate commerce is sufficiently strong to justify congressional
intervention.2 6
Other post-1937 commerce cases, however, used the words
"substantial" and "effect" in their more quantitative sense.27 At the
24. 379 u.s. 241 (1964).
25. 379 U.S. at 255.
26. See also United States v. Darby, 312 U.S. 100, 117 (1941) ("[T]he validity of the prohi-
bition turns on the question whether the employment ••. is so related to the commerce and
so affects it as to be within the reach of the power of Congress to regulate it."); 312 U.S. at
123 (explaining that the regulatory means chosen by Congress are "so related to the com-
merce and so affect[] it as to be within the reach of the commerce power").
Justice Cardozo's concurrence in A.L.A. Schecter Poultry Corp. v. United States, 295 U.S.
495 (1935), clearly framed the Commerce Clause inquiry in proximate cause terms:
There is a view of causation that would obliterate the distinction between what is na-
tional and what is local in the activities of commerce. Motion at the outer rim is commu-
nicated perceptibly, though minutely, to recording instruments at the center•.•. The law
is not indifferent to considerations of degree. Activities local in their immediacy do not
become interstate and national because of distant repercussions. What is near and what
is distant may at times be uncertain.
295 U.S. at 554 (Cardozo, J., concurring). The majority in Lopez quoted part of this text,
underscoring the proximate cause nature of its approach. United States v. Lopez, 115 S. Ct.
1624, 1633 (1995). The Fifth Circuit in Lopez expressed an analogous concern, noting that
"there is no private activity, no matter how local and insignificant, the ripple effect from
which is not in some theoretical measure ultimately felt beyond the borders of the state in
which it took place." United States v. Lopez, 2 F.3d 1342, 1362 (5th Cir. 1993), a!fd., 115 S.
Ct. 1624 (1995). The Fifth Circuit, like the Supreme Court, viewed the notion of "substantial
effects" as a necessary limit on this "ripple effect," or no conduct would remain outside Con-
gress's grasp.
27. See, e.g., Wickard v. Filburn, 317 U.S. 111, 125 (1942) (Congress may regulate local
activity "if it exerts a substantial economic effect on interstate commerce, and this irrespec-
tive of whether such effect is what might at some earlier time have been defined as 'direct' or
'indirect'"); 317 U.S. at 128 ("It can hardly be denied that a factor of such volume and
variability as home-consumed wheat would have a substantial influence on price and market
conditions."); see also Katzenbach v. McClung, 379 U.S. 294, 304 (1964).
In Hodel v. Indiana, 452 U.S. 314 (1981), several parties challenged the "prime farmland"
portions of Congress's surface mining statute, arguing that surface mining disturbed only
0.006% of the country's prime farmland annually, so that there was no "substantial" effect on
interstate commerce. See 452 U.S. at 321 (quoting the lower court's opinion). The Supreme
Court rejected this argument, declaring that the challengers and the lower court "incorrectly
assumed that the relevant inquiry under the rational-basis test is the volume of commerce
actually affected by the regulated activity." 452 U.S. at 324. "The pertinent inquiry," the
Court found, "is not how much commerce is involved but whether Congress could rationally
conclude that the regulated activity affects interstate commerce." 452 U.S. at 324.
Hodel v. Indiana could be read either to eliminate the modifier "substantially" from the
Court's Commerce Clause inquiry or to adopt a more qualitative measure of whether activity
"substantially affects" commerce. The amount of affected farmland was small under the stat-
ute challenged in Hodel v Indiana but the regulated activity was commercial and may have
enjoyed a sufficient nexus with interstate commerce for that reason. The Court in Hodel v.
Indiana, finally, hedged its pronouncement on quantitative effect - noting that the affected
very least, therefore, the Lopez Court resolved an ambiguity in

favor of a more restrictive reading of the Commerce Clause. More
likely, the Court subtly shifted its emphasis away from the quantita-
tive measures used in some previous cases and toward a more quali-
tative review of the relationship between the regulated activity and
congressional action. This change does not imply disagreement
with the results of cases finding a "substantial effect" on interstate
commerce in simple quantitative terms. As the majority pointed
out in Lopez, all of those cases involved commercial activities.28
The commercial nature of the regulated conduct, combined with its
quantitative impact on interstate commerce, was enough to mark
the connection with interstate commerce "substantial."
The dissenting Justices detected the majority's recharacteriza-
tion of the "substantial effects" standard and accused the majority
of reviving the discredited distinction between direct and indirect
effects on interstate commerce.29 The majority's standard probably
does include some measure of the directness of the effect on inter-
state commerce; the notion of a "substantial relationship," like that
of proximate cause, incorporates the idea of directness. The Lopez
majority's focus, however, is more flexible than the old direct-
indirect distinction. The direct-indirect test was flawed in part by
the Court's rigidity and singlemindedness in applying the test. The
Lopez decision suggests that the Court will not fall prey to this trap
but will consider a host of factors in determining whether an activ-
ity is sufficiently related to interstate commerce to support congres-
sional regulation.3o
The Court's reshaping of the substantial effects standard in
Lopez leaves two questions for further exploration: (1) What fac-
tors will the Court consider in determining whether conduct "sub-
stantially affects" interstate commerce, and (2) how high will the
Court set the "substantial effects" threshold? Part II identifies
some of the factors that influenced the Court in Lopez and should
influence future assessments of "substantial effect." Part III then
explores numerous Supreme Court signals suggesting that, despite
any recharacterization of the substantial effects standard, most con-
gressional action will continue to survive scrutiny under the Com-
farmland produced about $5 million of com each year "which surely is not an insignificant
amount of commerce." 452 U.S. at 325 n.11.
28. See 115 S. a. at 1630.
29. See 115 S. Ct. at 1654 (Souter, J., dissenting); 115 S. Ct. at 1663 (Breyer, J.,
dissenting).
30. See infra notes 72-153 and accompanying text.
merce Clause. Lopez sets an outer limit on congressional power,

but the line is remote from most congressional work.
B. Rational Basis Review

For at least thirty years, the Supreme Court has measured the
scope of Congress's Commerce Clause power under a rational basis
test.31 "[W]hen Congress has determined that an activity affects in-
terstate commerce," the Court observed in 1981, "the courts need
inquire only whether the finding is rational."32 Until Lopez, that
inquiry invariably persuaded the Court that Congress had acted ra-
tionally; as the Fifth Circuit observed in Lopez, there is "no
Supreme Court decision in the last half century that has set aside [a
congressional enactment based on the Commerce Clause] as with-
out rational basis. " 33 At least before Lopez, the Court's rationality
review of legislation based on the Commerce Clause was extremely
deferenpal to Congress.
The Lopez majority acknowledged that, in deciding Commerce
Clause cases, "the Court has . . . undertaken to decide whether a
rational basis existed for concluding that a regulated activity suffi-
ciently affected interstate commerce."34 Chief Justice Rehnquist,
however, did not invoke this rational basis test as a restraint on the
Court's authority; on the contrary, he cited the rational basis test as
an example of the Court's continued recognition of some bounds on
congressional power under the Commerce Clause and of the
Court's willingness to enforce those limits through judicial review.3s
After this initial reference to the rational basis test, moreover,
Chief Justice Rehnquist never mentioned the phrase again in his
majority opinion. As the dissenters amply illustrated, the Gun-Free
School Zones Act would have easily passed the weak rational basis
31. See Katzenbach v. McClung, 379 U.S. 294, 303-04 (1964); Heart of Atlanta Motel v.
United States, 379 U.S. 241, 258 (1964). The Court did not explicitly adopt a rational basis
test in its earlier New Deal rulings, but those decisions are consistent with such a test.
32. Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 277 (1981).
33. United States v. Lopez, 2 F.3d 1342, 1363 n.43, affd., 115 S. Ct. 1624 (1995). During
the oral arguments, one of the Justices conunented on the leniency of the Court's traditional
rational basis test See Transcript of Oral Argument on Behalf of the Petitioner at 19-20,
United States v. Lopez, 115 S. Ct. 1624 (1995) (No. 93-1260), available in Westlaw, SCf-
ORALARG Directory ("But one always can [identify a rational basis]. I mean, there is no
limit. Benjamin Franklin said, it is so wonderful to be a rational animal, that there is a reason
for everything that one does.... And if that's the test, it's all over."). The Court's official
transcript does not identify the Justice who offered this conunent. Contemporary reports,
however, attribute the conunent to Justice Souter. See Joseph Calve, Anatomy of a
Landmark Ruling, LEGAL TIMES, Aug. 14, 1995, at 9.
34. United States v. Lopez, 115 S. Ct. 1624, 1629 (1995).
35. See 115 S. Ct. at 1629.
test commonly used by the Court to judge due process and other
constitutional claims.36 Clearly, the Lopez majority had a less def-
erential version of the rational basis test in mind than the Court had
used in previous cases.37
How tough has the Court's rational basis standard become? A
clue to Justice Rehnquist's version of the rational basis test for
Commerce Clause cases appears in his concurring opinion to the
Court's 1981 decision in Hodel v. Virginia Surface Mining & Recla-
mation Assn. 38 In that case, Justice Rehnquist reminded his col-
leagues that even a rational basis test demands some judicial
review. "[S]imply because Congress may conclude that a particular
activity substantially affects interstate commerce," Justice Rehn-
quist wrote, "does not necessarily make it so." 39 Even more in-
triguing, Justice Rehnquist suggested in Hodel that the rational
basis test used under the Commerce Clause should be tougher than
the rational basis test used to judge social and economic legislation
under the Due Process Clause.4o Courts, Justice Rehnquist sug-
gested, play a more legitimate role in determining whether Con-
gress "has the authority to act" than in judging "the manner in
which that power is exercised."41
Although Justice Rehnquist did not elaborate on this suggestion
in Lopez, Justices Kennedy and O'Connor offered some comments
on the appropriate level of judicial scrutiny in their concurring
opinion. These Justices first noted their agreement with Justice
Rehnquist that the Court has a "role ... in determining the mean-
ing of the Commerce Clause" and that its scrutiny should not be
36. See 115 S. Ct at 1651 (Stevens, J., dissenting); 115 S. Ct. at 1657 (Souter, J., dissent-
ing); 115 S. Ct. at 1659-62 (Breyer, J., dissenting).
37. The single reference to the rational basis standard in Justice Rehnquist's majority
opinion might lead some scholars to question whether the Court has abandoned the rational
basis test altogether, in favor of a de novo examination of whether regulated activity substan-
tially affects interstate commerce. Justice Rehnquist's initial reference to the rational basis
test, however, taken together with his earlier comments in Hodel and the views of concurring
Justices O'Connor and Kennedy, see infra notes 38-46 and accompanying text, suggest that
the Court has toughened the rational basis test in Commerce Clause cases, rather than aban-
doning the test altogether. See also 115 S. Ct. at 1657 (Souter, J., dissenting) (noting that "the
Court continues to espouse" a "rationality review"); 115 S. Ct. at 1658 (Breyer, J., dissenting)
(observing that "the specific question before us, as the Court recognizes, is not whether the
'regulated activity sufficiently affected interstate commerce,' but, rather, whether Congress
could have had 'a rational basis' for so concluding").
38. 452 u.s. 264 (1981).
39. 452 U.S. at 311 (Rehnquist, J., concurring). Justice Rehnquist quoted this language in
his opinion for the Court in Lopez. See 115 S. Ct. at 1629 n.2.
40. See 452 U.S. at 311 n.* (construing United States R.R. Retirement Bd. v. Fritz, 449
u.s. 166 (1980)).
41. 452 U.S. at 311 n.*.
perfunctory.42 "[T]he federal balance," Justices Kennedy and

O'Connor concluded, "is too essential a part of our constitutional
structure and plays too vital a role in securing freedom for us to
admit inability to intervene when one or the other level of Govern-
ment has tipped the scales too far." 43 At the same time, however,
Justices Kennedy and O'Connor suggested that Commerce Clause
cases implicate a "substantial element of political judgment" that
"leaves our institutional capacity to intervene more in doubt than
when we decide cases, for instance, under the Bill of Rights."44
The concurring Justices did not convert these observations into
a specific standard of review. Nor did they pen the words "rational
basis" anywhere in their concurring opinion. The tenor of their
comments, however, suggests that they would subject Commerce
Clause challenges to a toughened rational basis standard or a ra-
tional basis with "bite,"45 while still keeping the level of judicial
inquiry far below the strict or intermediate levels of scrutiny used in
some equal protection cases.46 Justice Rehnquist's opinion for the
Court, when combined with his comments in Hodel, suggests a simi-
lar level of review.
How sharp the teeth are in this toughened rational basis stan-
dard remains unclear. Lopez suggests that the standard is not
merely a procedural one requiring Congress to demonstrate a ra-
tional basis through explicit findings. The Court noted that con-
gressional findings would have been helpful in evaluating the Gun-
Free School Zones Act, particularly because the connection be-
tween the Act and interstate commerce was not "visible to the na-
ked eye,"47 but the Court agreed with the Government that
"Congress normally is not required to make formal findings as to
42. 115 S. a. at 1637-38, 1640 (Kennedy, J., concurring).
43. 115 s. a. at 1639.
44. 115 s. a. at 1640.
45. Professor Gerald Gunther coined the phrase rationality review with "bite" in an arti-
cle reviewing the Court's 1971 Term. See Gerald Gunther, Newer Equal Protection, 86
HARV. L. REv. 1, 20-48 (1972). For additional comments about that proposal, including its
reception in the courts since 1971, see GERALD GUNTiiER, CoNSTITUTIONAL LAw 620-25
(12th ed. 1991). Other scholars have agreed with Gunther that rational basis review does not
need to be "toothless." For a discussion of this point in the Commerce Clause context, see
Martin H. Redish & Karen L. Drizin, Constitutional Federalism and Judicial Review: The
Role of Textual Analysis, 62 N.Y.U. L. REv. 1, 45-49 (1987).
46. As Gerald Gunther has stressed, the concept of rationality review with "bite" was
never intended to match the intermediate scrutiny applied in some equal protection cases.
The concept "seeks to raise slightly the lowest tier of review under the two- or three-tier
models; but it does not seek to raise the 'mere rationality' level appropriate for run-of-the-
mill economic regulation cases all the way up to the level of 'intermediate' or of 'strict' scru-
tiny." GUNTiiER, supra note 45, at 621 n.7.
47. 115 s. a. at 1632.
the substantial burdens that an activity has on interstate com-

merce."48 Instead, the Court found no rational basis supporting the
Act because it disagreed substantively with Congress's implicit con-
clusion that gun-free school zones substantially affect interstate
commerce.
Procedure and substance, of course, are intertwined. If Con-
gress had made more careful findings, the content of those findings
might have persuaded the Court that there was a substantial rela-
tionship between gun-free schools and interstate commerce. The
lack of a rational basis in Lopez, moreover, rests on the confluence
of numerous factors explored in greater detail below. Even after
accounting for these factors, however, the Court's decision suggests
that it will be difficult for Congress to establish a rational basis for
regulating intrastate conduct if (1) the conduct is noncommercial;
(2) the statute lacks a jurisdictional element requiring a case-by-
case determination of the interstate nexus; (3) Congress makes few
findings supporting its claim of a substantial connection with inter-
state commerce; and (4) the justifications offered for the connection
with interstate commerce are so broad that they impose no limit on
federal power.49 The final aspect of this formula reveals the Court's
key concern in Lopez: that the Commerce Clause know some
limits.
C. Some Limit
Before Lopez, many academics and lower court judges specu-
lated that the Commerce Clause no longer imposed any limits on
congressional action.50 The Supreme Court's decision in Lopez re-
48. 115 S. Ct. at 1631.
49. Difficult, but perhaps not impossible. The four factors identified in the text appear to
be the most important components of the Court's Lopez decision, but they are not the only
factors guiding that decision. See infra notes 72-153 and accompanying text. A more com-
plete restatement of the rules in Lopez would include all of the factors influencing the deci-
sion, see infra note 310 and accompanying text, and might uphold a congressional regulation
that did not fit this briefer formula.
50. See, e.g., United States v. Ornelas, 841 F. Supp. 1087, '1092 (D. Colo. 1994), revd.
mem., 56 F.3d 78 (lOth Cir. 1995) ("Indeed, very few activities exist regarding which Con-
gress could not reasonably find an interstate commerce nexus.... Perhaps unfortunately,
Congress's legislative power under the Commerce Clause has become a virtual blank
check ...."); United States v. Morrow, 834 F. Supp. 364, 365 (N.D. Ala. 1993) ("[H]as not
everyone been conditioned to believe that there is nothing which moves or has ever moved
which does not support an invocation of the Commerce Clause •...");James L. Buckley,
Introduction- Federalism and the Scope of the Federal Criminal Law, 26 AM. CruM. L. REv.
1737, 1738 (1989) ("Today it is virtually impossible to conjure up any human activity ... that
some court will not find to burden interstate commerce."); Gary Lawson, The Rise and Rise
of the Administrative State, 107 HARv. L. REv. 1231, 1236 (1994) ("[I]n this day and age,
discussing the doctrine of enumerated powers is like discussing the redemption of Imperial
Chinese bonds. There is now virtually no significant aspect of life that is not in some way
soundingly rejected that notion. Indeed, this may have been the
primary point of the decision. Much of the majority's reasoning in
Lopez reduces to this syllogism: (1) The text of the Commerce
Clause and structure of the Constitution imply that some activities
are not "Commerce ... among the several States"; (2) Congress's
power to enact the Gun-Free School Zones Act can be sustained
only by endorsing arguments that would allow Congress to regulate
any activity; and (3) therefore, the Gun-Free School Zones Act can-
not be constitutiona1.s1
The Lopez majority stressed that, since its very first Commerce
Clause decision, the Supreme Court had recognized that "[t]he
enumeration [of power in the Commerce Clause] presupposes
something not enumerated."52 Even in 1937, when the Court over-
turned its restrictive reading of the Commerce Clause, it declared
that the definition of commerce "may not be extended so as to em-
brace effects upon interstate commerce so indirect and remote that
to embrace them, in view of our complex society, would effectually
obliterate the distinction between what is national and what is local
and create a completely centralized government. "53
The Government's arguments in Lopez conflicted with this judi-
cial commitment to recognize that Congress's powers are enumer-
regulated by the federal government This situation is not about to change."); Laurence H.
Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitu-
tional Interpretation, 108 HARv. L. REv. 1221, 1259 (1995) ("[S]ince the New Deal 'switch,'
the Commerce Clause power in particular has been understood to be remarkably inclu-
sive.... [I]t now seems almost brazen to suggest that there is anything Congress may not
do.").
My former colleague Donald Dripps tells me that he offered five bonus points on the final
exam to any student in his constitutional law course who could identify a statute that Con-
gress could not enact under the Commerce Clause. At least before Lopez, no student ever
succeeded in winning the extra points. See also Ronald D. Rotunda, Cases Refine Definition
of Federal Powers, NAn.. L.J., July 31, 1995, at C9 (explaining that since the Court's New
Deal cases, "a typical question mooted in constitutional law classes was whether there were
any limits to the federal commerce power"); Court Turns Sharply to Right; Rehnquist Making
Mark, BERGEN EVENING REc., July 3, 1995, at A1 ("In recent decades, many constitutional
law classes have not even taught about the 'Commerce clause' because it has been considered
a settled issue since 1937. Congress, it was said, could regulate any aspect of American life if
it believed that doing so was in the national interest.").
51. Justice Stewart struck a similar chord in his 1971 dissent in Perez v. United States, 402
U.S. 146 (1971). Announcing that he was "unable to discern any rational distinction between
loan sharking and other local crime" and finding that the Constitution's Framers could not
have intended to allow Congress to prosecute all local crimes, Justice Stewart concluded that
the loan shacking statute at issue in Perez "was beyond the power of Congress to enact." 402
U.S. at 158 (Stewart, J., dissenting).
The Lopez dissenters, notably, did not attack the first premise of this syllogism. See infra
note 55. They challenged only the second premise and its resulting conclusion.
52. 115 S. Ct. at 1627 (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194-95 (1824)).
53. 115 S. Ct. at 1628-29 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37
(1937)).
December 1995] Commerce/ 687
ated rather than plenary. Under the Government's theories, the

Court found it "difficult to perceive any limitations on federal
power."54 Upholding the Gun-Free School Zones Act, the majority
concluded, "would require us to conclude that the Constitution's
enumeration of powers does not presuppose something not enu-
merated ... and that there never will be a distinction between what
is truly national and what is truly local."55 To preserve that distinc-
tion and maintain some limit on congressional power under the
Commerce Clause, the Court struck down the Gun-Free School
Zones Act.
The Government's choice of theories in Lopez helped provoke
this reaction from the Court. The Solicitor General defended the
Gun-Free School Zones Act on three grounds: (1) that violent acts,
wherever they occur, affect the national economy by raising insur-
ance rates; (2) that violent crimes also affect the economy by dis-
couraging interstate travel; and (3) that guns disrupt education,
reducing workforce skills and ultimately diminishing productivity.56
All three of these rationales required the Court to trace several
steps from gun-free school zones to interstate commerce. Accept-
ance of the Government's second rationale, for example, would
have required the Court to reason that guns near schools increase
the likelihood of violent acts; that individuals learn about violent
schoolyard acts in other states; that violent acts in schools discour-
age people from traveling to other states; and - the easiest step -
that reductions in interstate travel reduce receipts for businesses ca-
tering to that travel. The Government's other two arguments relied
upon similar domino chains to achieve an effect on interstate
commerce.
54. 115 S. Ct. at 1632.

55. 115 S. Ct. at 1634; see also 115 S. Ct. at 1632 ("[I]f we were to accept the Govern-
ment's arguments, we are hard-pressed to posit any activity by an individual that Congress is
without power to regulate .•. Justice Breyer [in dissent] ... is unable to identify any activity
that the States may regulate but Congress may not."); 115 S. Ct. at 1634 ("[U]phold[ing] the
Government's contentions here ... would bid fair to convert congressional authority under
the Commerce Clause to a general police power of the sort retained by the States."); 115 S.
Ct. at 1649 (Thomas, J., concurring) ("When asked at oral argument if there were any limits
to the Commerce Clause, the Government was at a loss for words.... Likewise, the principal
dissent insists that there are limits, but it cannot muster even one example." (citation
omitted)).
Even the dissenters showed some discomfort with the notion of an all-encompassing
Commerce Clause. See, e.g., 115 S. Ct. at 1661 (Breyer, J., dissenting) (arguing that uphold-
ing the Gun-Free School Zones Act would not mean "that the Commerce Clause permits the
Federal Government to 'regulate any activity that it found was related to the economic pro-
ductivity of individual citizens' ").
56. See Brief for the United States at 17-25, United States v. Lopez, 115 S. Ct. 1624 (1995)
(No. 93-1260); Lopez;, 115 S. Ct. at 1632.
Acceptance of these theories would have required the Court to

expand its precedents - or at least to combine them in creative
ways. The Court had accepted diminished interstate travel as a ra-
tionale for congressional regulation, but the loss in those cases oc-
curred from direct discrimination against restaurant and hotel
customers - who included interstate travelers.57 Similarly, the
Court had approved congressional legislation aimed at enhancing
worker productivity, but those laws directly regulated wages, hours,
and other aspects of the employment relationshipss - not the well-
being of children who would move into the workforce someday.
The Government's arguments added at least one link to every chain
the Court was asked to forge between regulated conduct and inter-
state commerce.
Even more damaging, the Government was unable to identify
any bounds to its theories. Although pressed repeatedly during
oral argument, the Solicitor General could not offer a single exam-
ple of conduct falling outside Congress's commerce power. Instead,
his responses suggested that under the Goverment's "'costs of
crime' reasoning ... Congress 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."S9 Similarly,
the argument suggested that "under the Government's 'national
productivity' reasoning, Congress could regulate any activity that it
found was related to the economic productivity of individual citi-
zens," including such matters as "marriage, divorce, and child
custody."60
The Lopez majority recoiled from these arguments. In part, the
Court worried about preserving state control of traditional areas
like education and domestic relations, but the Court's overriding
concern was with the Government's style of argument. The Gov-
ernment's first two theories were so strained that they trivialized
the question of congressional authority, suggesting that the Com-
merce Clause was a sport to be circumvented through disingenuous
argument.61 The third argument was more cogent, but the Govern-
57. See Katzenbach v. McClung, 379 U.S. 294 {1964); Heart of Atlanta Motel v. United
States, 379 U.S. 241 {1964).
58. See United States v. Darby, 312 U.S. 100 {1941); NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1 (1937).
59. 115 S. Ct. at 1632; see Transcript of Oral Argument on Behalf of the Petitioner, supra
note 33, at *10-11, *13.
60. 115 S. Ct. at 1632; see Transcript of Oral Argument on Behalf of the Petitioner, supra
note 33, at *15-16.
61. As William Van Alstyne has suggested about other Commerce Clause rationales,
these arguments were dressed in "cellophane wrappers" of pretended interest in matters af·
ment erred in failing to acknowledge that the theory moved a step

beyond the Court's precedents - and in neglecting to assure the
Court that this step could be taken without obliterating the Com-
merce Clause. If the Government had discarded its first two argu-
ments, admitted that the productivity theory had not been applied
previously outside the workplace and argued that this theory nar-
rowly could be extended to schools because they bear a unique re-
lationship to productivity, the Court might have accepted the link
to interstate commerce.62
The "limit" sought by the Lopez majority can be characterized
in two ways. Some of the Court's rhetoric suggests that it wanted to
return to a territorial principle of federalism, the notion that some
subjects lie beyond Congress's regulatory reach.63 The Court never
explained, however, why state control of gun possession near
schools is essential to preserving the federal-state balance. The ma-
jority admitted, moreover, that Congress could continue regulating
many aspects of education and other areas traditionally reserved to
the states - significantly undercutting any suggestion that the
Commerce Clause preserves specific enclaves of state power.64
Instead, Lopez imposed a limit on the type of arguments the
Government may advance under the Commerce Clause.65 Each ra-
tionale invoked by the Government, Lopez suggests, must recog-
nize the constitutional maxim that Congress possesses only
enumerated, not plenary, powers. No rationale should be so un-
bounded, disingenuous, or convoluted that it trivializes this princi-
fecting interstate commerce. See William Van Alstyne, Federalism, Congress, the States and
the Tenth Amendment: Adrift in the Cellophane Sea, 1987 DuKE L.J. 769. Congress was not
really concerned with insurance rates or interstate vacationers when it enacted the Gun-Free
School Zones Act. Feigning such an interest demeaned both the Commerce Clause and the
entire method of constitutional inquiry.
62. The Government might also have defended the Gun-Free School Zones Act by
stressing that schools draw supplies from interstate commerce, focusing the Court's attention
on the immediate disruption of these interstate businesses, and drawing an analogy to the
Hobbs Act - which prohibits any robbery or extortion that "affects commerce." See 18
U.S.C. § 1951(a) (1994); see also infra note 148.
63. For further discussion of the autonomy and territorial models of federalism, see
Merritt, supra note 7.
64. See 115 S. Ct. at 1633. In addition, Congress regulates education and other matters of
traditional state concern under its spending power. Congressional power to enforce the
Fourteenth Amendment might provide another avenue for regulating such areas, although
Congress's power to regulate private conduct under that Amendment is subject to debate.
65. "Government" refers either to Congress or, if Congress remains silent on the source
of its authority, the attorneys who defend its legislation in court. The Supreme Court did not
demand express congressional findings in Lopez, although the absence of those findings was
influential, see infra notes 91-96 and accompanying text, but it wanted either Congress or the
Solicitor General's office to articulate a limited rationale for this exercise of congressional
power.
pie. If Congress and its attorneys abide by this limit in future cases,
the Court may not care whether the states retain exclusive control
over any pockets of regulatory authority. Once Congress has fin-
ished counting its enumerated powers, it may have invaded every
enclave of state regulation. The important point is that Congress
must proceed in a way that recognizes the possibility of some limits
and takes the doctrine of enumerated powers seriously.
II. THE LIMITS OF LOPEZ
Lopez is an important statement of constitutional principle.

The opinion correctly reads both the text of the Commerce Clause
and the structure of the Constitution to require some limits on con-
gressional power under the Commerce Clause. The limit embraced
by Lopez is more likely to constrain the rationales offered for con-
gressional action than the ends of that action. The Court's search
for Commerce Clause theories that express the limited nature of
congressional power, however, is not empty formalism. Congress's
powers are enumerated, not plenary, and the Constitution has
never been amended to provide otherwise.66 Even the New Deal
cases, which greatly expanded the scope of Congress's commerce
power, did not declare that Congress's power was unbounded or
that legislation could be upheld simply by waving vaguely in the
66. Bruce Ackerman has argued that the New Deal was a "constitutional moment" effec-
tively amending the Constitution. See 1 BRUCE AcKERMAN, WE nm PEOPLE: FouNDA·
noNs (1991). There are several difficulties with this argument. Most important for present
purposes, even if the New Deal "amended" the Constitution in some respect, that change did
not necessarily encompass the Gun-Free School Zones Act. To escape from the Depression
and manage a modem economy, it is possible that the American people engaged in the
"higher lawmaking" Ackerman describes to allow Congress to regulate commercial problems
demanding national solutions. But neither the context driving this constitutional change nor
the decisions rendered by the New Deal Court necessarily encompassed the type of police
regulation at issue in Lopez. Indeed, one of the lawyers who successfully defended the New
Deal cases for the Government later wrote that federal regulation of intrastate crimes "ex-
tend(ed] the commerce power beyond previous limits" set by the New Deal cases. See Rob-
ert L. Stem, The Commerce Clause Revisited - The Federalization of Intrastate Crime, 15
ARiz. L. REv. 271, 274 (1973).
Moreover, formal constitutional amendments to shift power from the states to the federal
government have not proved so difficult. See, e.g., U.S. CoNsr. amend. XVI (federal income
tax); U.S. CoNsr. amend. XVII (direct election of Senators); U.S. CoNsT. amend. XXIV
(prohibition of state poll taxes in federal elections). In addition, of course, the Civil War
Amendments effected a radical shift of power from the states to both Congress and the fed-
eral courts. If the people want to give Congress an unlimited police power, they have the
formal power to do so; recognition of informal lawmaking may not be necessary in this area.
Finally, as Ackerman himself acknowledges, recognizing constitutional moments is a diffi-
cult task, fraught with the potential for antimajoritarian action. See ACKERMAN, supra, at
284, 291. Ackerman develops guidelines that help him recognize the New Deal as an in-
stance of higher lawmaking, but the concern counsels caution in applying the entire theory.
At the very least, it suggests wariness in pushing the outer bounds of an "amendment" to the
Commerce Clause that was never formally proposed or ratified by the people.
direction of some interstate sale concluded somewhere by some

person. The defenders of the New Deal showed how wages, hours,
and employee strikes could affect interstate commerce in a modem
economy, but they never ignored the principle of enumerated
powers.
The Court's insistence that Congress respect the enumerated
nature of its powers and that the Government offer regulatory
rationales consistent with those restrictions is rooted in respect for
both the Constitution's text and traditional methods of constitu-
tional interpretation. 67 As my classmates' musical parody of
Wickard v. Filburn suggests, the Commerce Clause had become an
intellectual joke among academics and attorneys. A Constitution
that is subject to ridicule, however, serves no one's interests. No
one will take the Constitution seriously if Congress and the courts
refuse to do so.6s For these reasons, the Supreme Court concluded
in Lopez that rationales expounding congressional power under the
Commerce Clause must have some limit.
Equally important, Lopez affirmed the Court's responsibility to
enforce the boundaries of the Commerce Clause through judicial
review. Ten years ago, the Court announced that states should rely
primarily on the political process to preserve the proper balance of
state-federal power under the Commerce Clause.69 Congress, how-
ever, has not proven particularly sensitive to the boundary between
state and federal power, especially in enacting federal criminal
laws.7o Without some judicial enforcement of the Commerce
Clause, the principles of federalism embodied in that clause might
67. For scholarly arguments that the text and structure of the Constitution require some
limits on congressional power to regulate interstate commerce, see, for example, Redish &
Drizin, supra note 45; Van Alstyne, supra note 61. Richard Epstein makes some of the same
arguments in Richard A. Epstein, The Proper Scope of the Commerce Power, 13 VA. L. REv.
1387 (1987), although I do not believe that the text of the Commerce Clause compels an
interpretation as narrow as the one he proposes.
68. See generally Tribe, supra note 50 (urging the importance of maintaining fidelity to
constitutional text and structure in judicial decisionmaking).
69. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
70. Political pressures to look "tough on crime" create almost irresistible temptations for
Congress to pass new federal criminal laws, regardless of whether the federal government
can afford to enforce those laws and regardless of whether the laws duplicate existing state
prohibitions. The court in United States v. Ornelas, 841 F. Supp. 1087 (D. Colo. 1994), revd.
mem., 56 F.3d 78 (lOth Cir. 1995), recognized this problem:
Unfortunately, the Garcia Court's confidence in the political process to deter the zeal of
Congress to centralize prosecutorial power may have been too optimistic. Indeed, ap-
parently irresistible political pressures to be perceived as 'tough on crime' are driving
Congress to federalize crimes .•. in circumstances where clear-minded, objective analy-
sis can discern no meaningful effect on interstate commerce in the sense intended by the
Commerce Clause.
841 F. Supp. at 1093; see also infra notes 133-44 and accompanying text.
disappear. For these reasons, the Lopez majority correctly deter-

mined that the Court must retain some judicial oversight over the
reach of the Commerce Clause.71
Despite the significance of these constitutional affirmations,
Lopez is a narrow decision that will invalidate few congressional
acts. The Court's decision rests on the confluence of almost a
dozen factors making the case virtually unique. These distinguish-
ing features of Lopez will prove essential in deciding future contro-
versies over whether Congress has a rational basis for determining
that regulated conduct "substantially affects" interstate commerce.
In this section, I first discuss the many factors contributing to
the majority's decision in Lopez. I then examine more than three
dozen opinions issued by the federal courts during the first three
months after Lopez. These decisions confirm my prediction that
Lopez rests on a combination· of unusual circumstances that will
lead to the judicial invalidation of few statutes. The U.S. Code con-
tains thousands of laws; some of them may yet fall under Lopez.
The work of the federal courts so far, however, suggests that the
mark of Lopez will be small in that context.
71. The scholarly debate over the proper role of the courts in enforcing the Commerce
Clause is extensive and well-known. For arguments that the political process adequately pro-
tects state interests, so that little or no judicial enforcement is necessary, see, for example,
JESsE H. CHOPER, JuDICIAL REvmw AND THE NATIONAL PoLITICAL PRoCESs: A FuNc-
TIONAL REcoNSIDERATION oF THE RoLE OF THE SUPREME CoURT (1980); D. Bruce La
Pierre, The Political Safeguards of Federalism Redux: Intergovernmental Immunity and the
States as Agents of the Nation, 60 WAsH. U. L.Q. 779 {1982); Mark 1\Jshnet, Why the Supreme
Court Overruled National League of Cities, 47 VAND. L. REv. 1623 {1994); and Herbert
Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition
and Selection of the National Government, 54 CoLUM. L. REv. 543 {1954); see also Larry
Kramer, Understanding Federalism, 41 VAND. L. REv. 1485 {1994) (criticizing many of the
traditional arguments made in favor of the political process model but suggesting that new
institutions and political forces may play the same role). For arguments that the political
process is not a sufficient check on federal power and that the courts should enforce federal-
ism provisions like the Commerce Clause, see, for example, PHILIP B. KURLAND, PoLITics,
THE CoNSTITUTION, AND THE WARREN CoURT (1970); MICHAEL D. REAGAN & JoHN G.
SANZONE, THE NEW FEDERAUSM (2d ed. 1981); MARTIN H. REDISH, THE CONSTITUTION AS
PoLITICAL STRUCTURE ch. 2 {1995); Stewart A. Baker, Federalism and the Eleventh Amend-
ment, 48 U. CoLO. L. REv. 139, 182-84 {1977); A.E. Dick Howard, Garcia and the Values of
Federalism: On the Need for a Recurrence to Fundamental Principles, 19 GA. L. REv. 789
{1985); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a
Third Century, 88 CoLUM. L. REv. 1, 15-22 (1988); William W. Van Alstyne, The Second
Death of Federalism, 83 MICH. L. REv. 1709 (1985).
In Lopez, Justices Kennedy and O'Connor expressed understandable puzzlement over
why this matter remains subject to so much doubt. As these Justices noted, the legitimacy of
judicial review in other sensitive areas - including the separation of powers on the national
level - is "undoubted." United States v. Lopez, 115 S. a. 1624, 1638 {1995) {Kennedy, J.,
concurring). These Justices also noted, in line with some of the scholarly commentary cited
above, that the "structural mechanisms" ostensibly protecting state interests in Congress are
few and that these minor restraints are easily overcome by "momentary political conven-
ience." 115 S. a. at 1639. For these reasons, Justices Kennedy and O'Connor refused "com-
plete renunciation of the judicial role." 115 S. a. at 1639. ·
A. The Distinguishing Features of Lopez

Hard facts make new law. From the beginning, United States v.
Lopez was a troubling case.72 Congress's statute was broadly
drawn, prohibiting gun possession by any person within 1000 feet
- more than three football fields - of any public or private
school. The statute condemned a pedestrian carrying a handgun in
a briefcase for self protection or a hunter transporting a rifle to the
hunting range if either one strayed within 1000 feet of a school -
even if the transgression occurred at night, on a weekend, or during
the summer.73 The breadth of the statute allowed critics to mock
Congress by posing a series of hypothetical cases that would be
swept within the statute.74 Congress compounded the statute's
breadth by failing to require any effect on interstate commerce as a
72. Cf. Thomas M. Mengler, The Sad Refrain of Tough on Crime: Some Thoughts on
Saving the Federal Judiciary from the Federalization of State Crime, 43 U. KAN. L. REv. 503,
503-05 (1995) (discussing the many "remarkable" features of Lopez).
73. These activities would be protected only if (1) the state maintained a gun licensing
law, and the individual was properly licensed under that law, or (2) the gun was both un-
loaded and transported in a locked container or on a firearms rack. See 18 U.S.C.
§ 922(q)(2)(B)(ii)-(iii) (1994). The latter exception, of course, would offer scant comfort to
the citizen carrying a gun for self-defense.
The statute contained several other exceptions, including protection for gun possession on
private property not part of the school grounds. See 18 U.S.C. § 922(q)(2)(B)(i) (1994).
74. The Fifth Circuit observed that the statute:
makes it a federal offense to carry an unloaded firearm in an unlocked suitcase on a
public sidewalk in front of one's residence, so long as that part of the sidewalk is within
one thousand feet - two or three city blocks - of the boundary of the grounds of any
public or private school anywhere in the United States, regardless of whether it is during
the school year or the school is in session.
United States v. Lopez, 2 F.3d 1342, 1346 n.4 (5th Cir. 1993), affd.,115 S. Ct. 1624 (1995). The
court also noted that the statute would prohibit carrying an unloaded shotgun:
in an unlocked pickup truck gun rack, while driving on a county road that at one tum
happens to come within 950 feet of the boundary of the grounds of a one-room church
kindergarten located on the other side of a river, even during the summer when the
kindergarten is not in session.
2 F.3d at 1366. Lopez's attorneys offered a different example in their brief to the Supreme
Court: "the licensed hunter transporting his sporting rifle on an elevated, controlled-access
highway 999 feet from the farthest part of the school yard risks five years in a federal peni-
tentiary." Brief for the Respondent at 45, United States v. Lopez, 115 S. Ct. 1624 (1995} (No.
93-1260). The court in United States v. Morrow, 834 F. Supp. 364 (N.D. Ala. 1993), similarly
suggested that:
not every little old lady carrying a ..• gun for self-protection can be exposed to a federal
felony prosecution just because she fails to measure the shortest distance between her
usual vehicular route between home and the grocery store to the nearest point on the
local school ground in order to ascertain whether her vehicle will come closer than 1,000
feet to the school.
834 F. Supp. at 365. The court in Morrow also noted that "every dove hunter, in order to stay
out of a federal penitentiary, would need to carry a surveying instrument with him in the
event there happens to be an elementary or secondary school, public, private, or parochial,
anywhere near the publicly, heavily travelled route to the dove field." 834 F. Supp. at 365-66;
see also United States v. Edwards, 13 F.3d 291, 295 (9th Cir. 1993), vacated and remanded,
115 S. Ct. 1819 (1995) (explaining that the statute "would criminalize driving past a school on
the way to a skeet shooting range with a gun in the trunk of a car").
jurisdictional element of the statute and by omitting any explicit

findings linking gun possession in school zones to interstate
commerce.
Nor did the prosecution of Alfonso Lopez clarify the federal
government's interest in regulating gun possession near schools.
Lopez was a genuine wrongdoer, a high school senior caught carry-
ing a concealed handgun and five bullets on school grounds. There
was no evidence, however, that Lopez was a sophisticated criminal
who might evade the clutches of local law enforcement officers. He
had no prior criminal record, not even a disciplinary record at the
high school.75 Lopez was apprehended by school officials and
charged under a state law prohibiting the possession of guns on
school grounds. That statute had banned gun possession on school
grounds for more than a century and had classified the offense as a
felony since 1983.~6 The Government never explained why the As-
sistant U.S. Attorney in Lopez's district decided to initiate federal
charges in this purely local case.
These factors, combined with others identified below, pushed
five members of the Supreme Court to rule the Gun-Free School
Zones Act unconstitutional. Lopez was a law professor's dream
but a prosecutor's nightmare: a case testing the outer boundaries of
the Commerce Clause. The extremity of the facts in Lopez suggests
that courts will readily distinguish the case in future challenges to
congressional action under the Commerce Clause.
1. Noncommercial Activity
The majority opinion in Lopez repeatedly noted that the Gun-
Free School Zones Act did not regulate any "commercial transac-
tion" or "economic activity."77 The transgressions of farmer
Filburn, the Court pointed out, "involved economic activity in a
way that the possession of a gun in a school zone does not." 78 Simi-
75. Lopez did testify that he was holding the gun for another student, "Jason," who
planned to use it in a gang war. 2 F.3d at 1345. Even this tangential reference to gang
shootings, however, did not explain why local authorities were unable to deal adequately
with this gang.
76. See Act of Apr. 12, 1871, 1871 Tex. Gen. Laws ch. xxxiv, § 3 (current version codified
at TEX. PENAL ConE ANN.§ 46.03(a){1) (West 1994)) (prohibiting intentional, knowing, or
reckless possession of firearms and other designated weapons on school premises); TEX. PE-
NAL ConE ANN. § 46.03{f) (West 1994) {designating such offenses third-degree felonies).
77. See, e.g., United States v. Lopez, 115 S. Ct. 1624, 1625, 1630-31 (1995).
78. 115 S. Ct. at 1630. Ironically, Lopez's conduct was partly commercial: an individual
named "Gilbert" gave Lopez the gun and promised him $40 if he would deliver it to "Jason"
after school. 2 F.3d at 1345. The Gun-Free School Zones Act, however, broadly punishes
those who "possess" guns in school zones; it does not focus on commercial transactions near
larly, the majority distinguished precedents in which the Court had

"upheld a wide variety of congressional Acts regulating intrastate
economic activity. " 79 The Gun-Free School Zones Act, on the con-
trary, was "a criminal statute that by its terms has nothing to do
with 'commerce' or any sort of economic enterprise."80 Nor was
the statute "an essential part of a larger regulation of economic
activity."B1
Justices Kennedy and O'Connor, concurring in the decision, also
stressed the noncommercial character of the conduct at issue in
Lopez. 82 This distinction appeared essential in capturing their
votes. Justices Kennedy and O'Connor made clear that they would
not "revert[ ] to an understanding of commerce that would serve
only an 18th-century economy."B3 They embraced the Court's dis-
tinction between commercial and noncommercial conduct because
it allowed them to adhere to all of the modem Court's rulings
broadly construing congressional power to regulate commercial ac-
tivities. "Congress," Justices Kennedy and O'Connor concluded,
"can regulate in the commercial sphere on the assumption that we
have a single market and a unified purpose to build a stable na-
tional economy."84 The Gun-Free School Zones Act did not raise
these commercial concerns.
The noncommercial character of Lopez's crime thus exerted a
significant influence on the majority's decision. The distinction be-
tween commercial and noncommercial activities undoubtedly will
play a prominent role in decisions entertaining Commerce Clause
challenges under Lopez. 85
schools. The Government, therefore, did not attempt to rely upon this commercial aspect of
Lopez's behavior.
79. 115 S. Ct at 1630 (emphasis added); see also 115 S. a. at 1630 ("Where economic
activity substantially affects interstate commerce, legislation regulating that activity will be
sustained." (emphasis added)).
80. 115 S. Ct at 1630-31.
81. 115 S. Ct at 1631.
82. See, e.g., 115 S. Ct at 1640 (Kennedy, J., concurring) ("[H]ere neither the actors nor
their conduct have a commercial character, and neither the purposes nor the design of the
statute have an evident commercial nexus ....").
83. 115 s. a. at 1637.
84. 115 S. Ct at 1637. For further discussion of the views of Justices Kennedy and
O'Connor, see infra notes 251-55 and accompanying text.
85. The Lopez dissenters contended that this distinction between commercial and non-
commercial activities would prove unworkable. See 115 S. Ct at 1663-64. As I explain be-
low, however, Lopez does not require courts to draw sharp lines between commercial and
noncommercial conduct; it merely requires them to locate conduct on a spectrum of activities
that are more or less commercial. See infra Part IV. That task corresponds to a common-
sense distinction that scholars themselves have drawn in discussing Commerce Clause cases.
See, e.g., GUNTiiER, supra note 45, at 99, 106 (discussing separately the development of
· 2. Lack of a Jurisdictional Element

Many of Congress's criminal statutes require the Government to
prove a link to interstate commerce as part of its case-in-chief.S6
The Gun-Free School Zones Act, like some of Congress's other re-
cent statutes, contains no such requirement. The Court obviously
found this omission as troubling as the statute's noncommercial na-
ture. In the opening paragraph of its opinion, the Court observed
that the Gun-Free School Zones Act "neither regulates a commer-
cial activity nor contains a requirement that the possession be con-
nected in any way to interstate commerce. "87
A jurisdictional element would have signaled that Congress was
aware of its limits under the Commerce Clause and took those lim-
its seriously. The clause also would have narrowed, if only slightly,
the scope of federal prosecutions in a way that might have made the
federal interest more apparent. If the gun resting in the school caf-
eteria has crossed state lines or if the Government must prove some
other link with interstate commerce, there is at least a suggestion
that the case raises the type of multistate concerns justifying federal
prosecution.88 By failing to require federal prosecutors to satisfy
any jurisdictional element, Congress almost dared the Court to find
the statute unconstitutional.
The Clinton administration and numerous legislators have con-
cluded that the lack of a jurisdictional element was the dispositive
defect in the Gun-Free School Zones Act. Within six weeks of the
"Modern Economic Regulation" and "National 'Police' Regulation" under the Commerce
Clause); WILLIAM B. LOCKHART ET AI-, CONSTITUTIONAL LAW 90, 115, 120 {7th ed. 1991)
(discussing separately the "Regulation of National Economic Problems Through the Com-
merce Power," "Regulation of Police Problems Through the Commerce Power," and "Pro-
tection of Other Interests [including Civil Rights and the Environment] Through the
Commerce Clause"); Stern, supra note 66 (distinguishing economic regulations upheld dur-
ing the New Deal from more recent attempts to federalize state crime).
86. See United States v. Lopez, 2 F.3d.1342, 1347 (5th Cir. 1993) ("With the exception of
a few relatively recent, special case provisions, federal laws proscribing firearm possession
require the government to prove a connection to commerce, or other federalizing feature, in
individual cases."), affd., 115 S. Ct. 1624 {1995); 2 F.3d at 1348-60 (describing statutes).
87. 115 S. Ct. at 1626; see also 2 F.3d at 1631 (noting that the Act "contains no jurisdic-
tional element which would ensure, through case-by-case inquiry, that the firearm possession
in question affects interstate commerce").
88. A gun obtained out of state poses at least the possibility that it was supplied by an
interstate gang or interstate drug dealers. A statute encompassing all guns that have crossed
state lines would be overinclusive from this point of view; it would include many instances of
schoolyard possession that local authorities could prosecute with ease. Congress, however,
should not have to regulate with pinpoint precision under the Commerce Clause; the Court
allowed Congress to punish all loansharking, even though some loansharking is not tied to
organized crime. See United States v. Perez, 402 U.S. 146, 154-57 {1971); see also infra note
118 and accompanying text. For further discussion of when federal prosecution of crimes is
most essential, see infra note 121 and accompanying text.
Lopez decision, both senators and representatives introduced bills

to amend the Gun-Free School Zones Act by adding a jurisdictional
element to the statute.8 9 The new bills would limit punishment to
individuals who "possess a firearm that has moved in or that other-
wise affects interstate or foreign commerce," when that firearm is
brought within a school zone.9o
It is unclear whether a jurisdictional element alone or a jurisdic-
tional element combined with more explicit congressional findings
will resurrect the constitutionality of the Gun-Free School Zones
Act. There is no doubt, however, that omission of a jurisdictional
element was an important factor in the statute's demise.
3. Lack of Express Findings or Legislative History

When the Fifth Circuit struck down the Gun-Free School Zones
Act, it rested heavily on Congress's failure to compile evidence or
make express findings linking gun possession near schools with in-
terstate commerce.91 Indeed, the court of appeals hinted that it
would uphold the constitutionality of the statute if Congress made
appropriate findings or compiled a more extensive record.92
The Supreme Court's treatment of this factor was more ambiva-
lent, perhaps because Congress had amended the statute after the
Fifth Circuit's decision, inserting some findings linking the regu-
lated conduct to interstate commerce.93 On the one hand, the
Court affirmed previous rulings that "Congress normally is not re-
quired to make formal findings as to the substantial burdens that an
activity has on interstate commerce." 94 On the other hand, the ma-
jority noted that "congressional findings would enable us to evalu-
ate the legislative judgment that the activity in question
substantially affected interstate commerce, even though no such
substantial effect was visible to the naked eye."95 In Lopez, not
89. See Gun-Free School Zones Act of 1995, S. 890, 104th Cong., 1st Sess. (1995); H.R.
1608, 104th Cong., 1st Sess. (1995); see also President Clinton's Message to Congress Trans-
mitting the Gun-Free School Zones Amendments Act of 1995, 31 WEEKLY CoMP. PREs.
Doc. 809 (May 10, 1995).
90. S. 890, 104th Cong., 1st Sess. § 2 (1995); H.R. 1608, 104th Cong., 1st Sess. § 1 (1995).
The Senate bill also contains extensive findings on the connection between gun-free school
zones and interstate commerce. See S. 890, 104th Cong., 1st Sess. § 2 (1995).
91. See Lopez, 2 F.3d at 1362-68.
92. 2 F.3d at 1368 ("Whether with adequate Congressional findings or legislative history,
national legislation of similar scope could be sustained, we leave for another day. Here we
merely hold that Congress has not done what is necessary to locate [the Gun-Free School
Zones Act] within the Commerce Clause.").
93. See United States v. Lopez, 115 S. Ct. 1624, 1632 n.4 (1995).
94. 115 S. Ct. at 1632; see also Perez v. United States, 402 U.S. 146, 156 (1971).
95. 115 S. Ct. at 1632.
even legislative history revealed the link Congress perceived be-

tween gun-free school zones and interstate commerce. 96
Although the Supreme Court refused to require congressional
findings or a legislative history as a prerequisite to sustaining a stat-
ute under the Commerce Clause, the lack of congressional attention
undoubtedly contributed to the Court's decision. At the very least,
express findings or relevant legislative history would have made the
rationale for federal involvement immediately apparent to all
judges hearing the case. Congress's silence forced the Government
attorneys on the defensive, scrambling for arguments justifying the
federal statute, while the defendant's attorneys scored points de-
riding the lack of federal interest in school gymnasiums and
cafeterias.
The absence of findings or a legislative history also upset the
careful minuet the Court and Congress had danced around the
Commerce Clause during the past sixty years. Congress had drawn
an ever-widening circle around activities that it found affected com-
merce, and the Court had bowed to each of those steps. The dance,
however, depended on Congress taking its role seriously and dem-
onstrating that each of these activities did in fact affect commerce.
When Congress missed its step, barely seeming to notice the need
for some nexus with interstate commerce, it almost seemed to taunt
the Court - daring the Justices to find that the Commerce Clause
was a completely dead letter. Instead, five Justices withdrew from
the dance.
4. Regulation of Education
The Government's strongest argument in support of the Gun-
Free School Zones Act was its claim that guns hamper education
and that an educated citizenry is essential to a healthy economy.
As Justice Breyer's dissent so eloquently shows, both premises of
this argument are true. One in five urban high school students has
96. The only legislative history in Lopez was negative: two witnesses at the House hear-
ings remarked that "the source of constitutional authority to enact the legislation is not mani-
fest on the face of the bill." Gun-Free School Zones Act of 1990: Hearings on H.R. 3757
Before the Subcomm. on Crime of the House Comm. on the Judiciary, lOlst Cong., 1st Sess.
10 (1990) (statement of Richard Cook, Chief, Firearms Division, Bureau of Alcohol, To-
bacco, and Firearms, U.S. Department of the Treasury, and Bradley Buckles, Deputy Chief
Counsel). The bill's sponsors, however, never responded to this question. See Lopez, 2 F.3d
at 1360.
Previous Supreme Court cases look to legislative history, as well as to express findings, to
discern links between congressional regulation and interstate commerce. See, e.g.,
Katzenbach v. McClung, 379 U.S. 294, 299-301 (1964); Heart of Atlanta Motel v. United
States, 379 U.S. 241, 252-53 (1964).
been threatened with a gun, and more than one in ten have actually
been targets of gunfire.97 This violence both impairs learning and
increases dropout rates.98
These arguments, however, troubled the majority because they
implied that Congress could regulate almost any aspect of educa-
tion, a field "where States historically have been sovereign." 99 With
some horror, the majority noted that acceptance of the Govern-
ment's argument could empower Congress to "mandate a federal
curriculum for local elementary and secondary schools because
what is taught in local schools has a significant 'effect on classroom
learning,' and that, in tum, has a substantial effect on interstate
commerce." 10o The five Justices comprising the majority clearly
were not ready to countenance this possibility.1o1
Justices Kennedy and O'Connor, concurring in the judgment,
displayed even more concern for Congress's intrusion into local
control of education. These Justices suggested that when Congress
attempts to push the Cominerce Clause to its furthest reach, "then
at the least we must inquire whether the exercise of national power
seeks to intrude upon an area of traditional state concem."l02 Jus-
tices Kennedy and O'Connor also stressed that "it is well estab-
lished that education is a traditional concern of the States" 103 and
that education is "an area to which States lay claim by right of his-
tory and expertise." 104 Under such circumstances, the concurring
97. See 115 S. Ct. at 1659 (Breyer, J., dissenting) (citing Joseph F. Sheley et a!., Gun-
Related Violence in and Around Inner-City Schools, 146 AM. J. DISEASES IN CHILDREN 677,
679 (1992)).
98. See 115 S. Ct. at 1659. But see infra note 122 (raising some question about the extent
of a national crisis involving guns in schools).
99. 115 s. Ct. at 1632.
100. 115 S. Ct. at 1633 (citation omitted).
101. Curiously, Congress might be able to justify a national curriculum more readily than
it could defend the Gun-Free School Zones Act. Cf. infra note 152 and accompanying text
(discussing congressional power to set licensing standards for teachers). Most federal regula-
tion of education, moreover, rests on Congress's spending power. See Susan H. Fuhrman,
Clinton's Education Policy and Intergovernmental Relations in the 1990s, Pusuus, Summer
1994, at 83; Richard W. Riley, Redefining the Federal Role in Education: Toward a Frame-
work for Higher Standards, Improved Schools, Broader Opportunities and New Responsibili-
ties for AI~ 23 J.L. & Eouc. 295 (1994). If Congress continues to support elementary and
secondary education with sizable financial grants, it probably could prescribe curricular re-
quirements for those schools. Cf. South Dakota v. Dole, 483 U.S. 203 (1987) (construing
generously congressional power to attach conditions to grants). The Court's concern over
congressional power to regulate education under the Commerce Clause, therefore, was
somewhat antiquated.
102. 115 S. Ct. at 1640 (Kennedy, J., concurring).
Justices concluded, the Court has "a particular duty to insure that
the federal-state balance is not destroyed."tos
Despite this vigorous language, Lopez did not outlaw all con-
gressional attempts to regulate education under the Commerce
Clause. Indeed, the majority affirmed that "Congress has authority
under the Commerce Clause to regulate numerous commercial ac-
tivities that ... affect the educational process."106 As explained
above, moreover, the Court may have been more concerned with
the style of the Government's arguments than \vith Congress's at-
tempt to regulate a matter touching education.107 The statute's link
to education nonetheless was an important factor for the majority
- especially for Justices Kennedy and O'Connor.
5. Gun Control and Private Property
The Fifth Circuit observed that the Second Amendment might

"be something of a brooding omnipresence" in Lopez's attack on
the Gun-Free School Zones Act. 108 Lopez did not challenge the
statute under the Second Amendment, and the Supreme Court did
not intimate any Second Amendment concerns about the Act's
scope.to9 The statute's focus on gun possession, however, may have
affected the Court's decision in several other ways.
First, gun-control statutes continue to provoke great contro-
versy in our country. No one defends gun possession on school
grounds, but the Gun-Free School Zones Act touched on a wider
class of behavior that some citizens defend zealously. The statute's
literal scope, moreover, included some forms of gun possession that
posed little, if any, threat to school children.U0 It is unlikely that
any U.S. Attorney would have prosecuted a citizen who walked
past a school at night with a gun in a briefcase for self defense, but

106. 115 S. Ct. at 1633.
107. See supra notes 63-65 and accompanying text.
108. See United States v. Lopez, 2 F.3d 1342, 1364 n.46 (5th Cir. 1993), affd., 115 S. Ct.
1624 (1995).
109. Lopez's attorneys, however, did note in their brief that "Second Amendment consid-
erations are not insubstantial." Brief for Respondent, supra note 74, at 31 n.31; see also
Amicus Brief on Behalf of Academics for the Second Amendment, United States v. Lopez,
115 S. Ct. 1624 (1995) (No. 93-1260) (arguing that the Second Amendment protects various
types of private gun ownership but that Lopez did not fall within the Amendment's
protections).
the fact that the statute embraced this type of behavior may have
made the Court more suspicious of the statute's scope.lll
Second, the nation's resistance to broader forms of gun control
meant that Congress was forced to prohibit possession on school
grounds of an article that is legally bought, sold, and used in other
contexts. The distinction is defensible on policy grounds because
gun possession in schools causes evils that gun possession in other
contexts may not cause. The legality of gun possession outside
school zones, however, robbed Congress of most legitimate tech-
niques for tying the statute to interstate commerce. Most impor-
tant, Congress could not prohibit possession of guns in schoolyards
as a way of enforcing a broader prohibition on interstate gun sales
- for the simple reason that Congress had not forbidden the
latter.112
Finally, gun control is sharply contested in our society partly be-
cause guns are strongly associated with private property rights.
Guns are both a form of personal property and a means of protect-
ing other real and personal property. From the farmer standing
guard with a shotgun, to the urban homeowner with a handgun in
the bedside table, images of gun ownership are strongly linked to
property rights in America. Just as Lopez touched the hot button
of gun control, it touched the nerve of private property.
The Supreme Court long ago conceded that Congress may regu-
late privately owned possessions that move in interstate commerce,
as well as a host of other property rights. With the Gun-Free
School Zones Act, however, Congress evoked the notions of pri-
vate property implicit in the gun-control debate. Rhetoric in some
lower court opinions explicitly opposed the Gun-Free School Zones
Act as contrary to the rights of private homeowners. 113 The Lopez
111. Cf. Staples v. United States, 114 S. Ct. 1793, 1799 {1994) (reading a mens rea re-
quirement il)tO a statute prohibiting the possession of an unregistered, automatic firearm
because "there is a long tradition of widespread lawful gun ownership by private individuals
in this country").
112. This fact readily distinguishes the Gun-Free School Zones Act from both the Drug-
Free School Zones Act, 21 U.S.C. § 860 (1994), and the federal prohibition on possession of
machineguns, 18 U.S.C. § 922{o)(1) (1994). With minor exceptions, Congress has forbidden
all sales and possessions of the latter items. See infra notes 157-65, 186-95 and accompanying
text. The Fifth Circuit noted this important feature of the Gun-Free School Zones Act in its
Lopez opinion: "The ... proscription [of narcotics possession] was a necessary means to
regulate the interstate commercial trafficking in narcotics. There is nothing analogous in the
present case.... [T]here has been no general outlawing of the possession of ordinary fire-
arms by ordinary citizens." Lopez, 2 F.3d at 1367 n.51.
113. See, e.g., 2 F.3d at 1346 n.4 (noting that the Act "makes it a federal offense to carry
an unloaded firearm in an unlocked suitcase on a public sidewalk in front of one's resi-
dence"). One district court, writing shortly after the Fifth Circuit's decision, gave the follow-
ing hypothetical:
majority, as well, may have been influenced by the concepts of pri-

vate property, home ownership, and the right to do as one pleases
while close to home - all of which reverberated from the gun-
control debate.114
, 6. Lack of National Necessity

In each of the earlier cases endorsing a broad construction of
the Commerce Clause, the Supreme Court was persuaded that an
urgent national need justified Congress's action. The National La-
bor Relations Act responded to profound worker dissatisfaction
and a series of violent strikes.115 The Civil Rights Act of 1964 ad-
dressed a history of racial discrimination that had become endemic
and that many states refused to end.116 The price supports that
stymied farmer Filburn were a part of economic controls designed
If a backwoodsman had lived in his rustic retreat for 50 years, his trusty hunting rifle
hanging over the fireplace the entire time, and suburbia encroaches, creating enough
student population to justify the construction of a private grammar school in the deep
woods next door to him, he would have to choose among (1) getting rid of his rifle, (2)
moving, or {3) going to jail.
United States v. Morrow, 834 F. Supp. 364, 366 (N.D. Ala. 1993). The latter example is
particularly remarkable because the Gun-Free School Zones Act did not actually create this
dilemma for backwoodsmen; the Act exempted guns possessed on private property, even if
the property fell within 1000 feet of a school. See 18 U.S.C. § 922(q)(2){B)(i) (1994). The
link between gun ownership and private property was so intense, however, that these exam-
ples persisted despite the Act's express exemption of possession on private property.
114. Cf. Robert C. Post, ChiefJustice William Howard Taft and the Concept of Federalism,
9 CoNST. CoMMENTARY 199,220-21 {1992) (arguing that Justice Taft enforced limits on fed-
eral power when he perceived them as infringing ordinary private property rights).
115. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 23 n.2 {1937) {"The denial by
employers of the right of employees to organize and the refusal by employers to accept the
procedure of collective bargaining lead to strikes and other forms of industrial strife or un-
rest" (quoting§ 1 of the Act)); 301 U.S. at 41 ("[T]he stoppage of [respondent's] operations
by industrial strife would have a most serious effect upon interstate commerce..•• It is
obvious that it would be immediate and might be catastrophic."); 301 U.S. at 42 {"Refusal to
confer and negotiate has been one of the most prolific causes of strife. This is such an out-
standing fact in the history of labor disturbances that it is a proper subject of judicial notice
and requires no citation of instances."); 301 U.S. at 43 {"The Government aptly refers to the
steel strike of 1919-1920 with its far-reaching consequences."); see also Epstein, supra note
67, at 1447 (noting that Court upheld the National Labor Relations Act because "Congress
and the NLRB believed that industry-wide unionizations could not succeed without federal
assistance, and the Court accepted this belief"); Robert L. Stern, The Commerce Clause and
the National Economy, 1933-1946, 59 HARv. L. REv. 645, 681 (1946).
116. In Heart of Atlanta Motel v. United States, 379 U.S. 241 {1964), the Court observed
that discrimination against African Americans in hotel accommodations
had become so acute as to require the listing of available lodging for Negroes in a special
guidebook which was itself "dramatic testimony to the difficulties" Negroes encounter in
travel.... We shall not burden this opinion with further details since the voluminous
testimony [before Congress] presents overwhelming evidence that discrimination by ho-
tels and motels impedes interstate travel.
379 U.S. at 253 (citation omitted); see also Katzenbach v. McClung, 379 U.S. 294, 300 (1964)
("[T]here was an impressive array of testimony that discrimination in restaurants had a direct
and highly restrictive effect upon interstate travel by Negroes."); 379 U.S. at 305 (Congress
found this to be "a national commercial problem of the first magnitude.").
to pull the country out of the Depression.117 Federal regulation of

loan shar.king and other organized crime activities rested on the
common perception that organized crime empires were too far-
flung for state law to handle, especially because some state and lo-
cal officers were themselves on organized crime payrolls,lls In e~ch
of these cases, federal regulation addressed a problem that not only
was important but that could not be or was not being addressed by
the states.
Lopez lacked this aura of national urgency. Most states, includ-
ing Texas, already outlawed the possession of guns on school prem-
ises.119 Indeed, Texas had prohibited gun possession on school
property for more than a century.120 Congress made no findings,
and the Government made no argument in Lopez, that state and
117. The Court described the agricultural crisis in these terms:

The wheat industry has been a problem industry for some years..•• The decline in the
export trade has left a large surplus in production which . . . caused congestion in a
number of markets; tied up railroad cars; and caused elevators in some instances to tum
away grains, and railroads to institute embargoes to prevent further congestion.... In
the absence of regulation, the price of wheat in the United States would be much af-
fected by world conditions.
Wickard v. FJ.!burn, 317 U.S. 111, 125-26 {1942); see also 317 U.S. at 125-26 (noting that the
four countries exporting the most wheat had all found it necessary to institute controls pro-
tecting domestic prices); Stem, supra note 115, at 685-86 (describing agricultural problems
during the Depression and congressional attempts to overcome them); Robert L. Stem, The
Commerce Clause and the National Economy, 1933-1946, Part Two, 59 HARv. L. REv. 883,
901-07 {1946) (describing the history of wheat regulation and Wickard v. Filburn specifically).
118. See Perez v. United States, 402 U.S. 146 (1971) ("Organized crime operates on a
national scale. One of the principal sources of revenue of organized crime comes from loan
sharking. If we are to win the battle against organized crime we must strike at their source of
revenue ••.. The problem simply cannot be solved by the States alone." (quoting 114 CoNo.
REc. 14,490 (1968))); 402 U.S. at 157 ("[L]oan sharking in its national setting is one way
organized interstate crime holds its guns to the heads of the poor and the rich alike and
syphons funds from numerous localities to finance its national operations."); Patricia A. Hair,
Note, Commerce Clause-National Police Power Justified by Economic Impact of Organized
Crime, 46 Tur.. L. REv. 829, 836 (1972) ("[T]he scope of organized crime has broadened
across state lines, making purely local apprehension impossible.").
Robert Stem has pointed out that Perez is broader than Wickard, Heart of Atlanta, or
Katzenbach because some loan sharks prosecuted under the federal statute have no connec-
tion with organized crime or interstate commerce. See Stem, supra note 66, at 277-78. Stem
suggests, however, that the difficulty of proving an interstate connection in each case - and
the perceived national need to regulate loansharking connected to organized crime - may
have justified the sweeping regulation upheld in Perez. The strength of the national evil, in
other words, justified federal regulation of a "well-defined but possibly overinclusive class"
to insure that federal prosecutors could pursue allloansharks connected to organized crime.
Id. at 279.
119. An amicus brief submitted by the National Conference of State Legislatures and
several other amici listed laws from 43 states that established gun-free school zones or pro-
hibited gun possession on school property. See Amicus Brief of the National Conference of
State Legislatures at app.1a-2a, United States v. Lopez, 115 S. Ct.1624 (1995) (No. 93-1260);
see also Charles J. Russo, United States v. Lopez and the Demise of the Gun-Free School
Zones Act: Legislative Over-Reaching or Judicial Nit-Picking?, 99 Eouc. L. REP. 11, 22 &
n.70 (1995).
120. See supra note 76.
local officials were unable to enforce these laws. There was no evi-
dence of widespread corruption of officials entrusted with prosecut-
ing school regulations; nor was there any evidence that the
possession of guns in schools ordinarily was linked with sweeping,
multistate crime empires.121 The Government's brief contained
compelling evidence that guns create problems in schools but no
evidence that this problem was beyond the reach of state and local
law enforcement.122
Even the education community divided over the constitutional-
ity of the Gun-Free School Zones Act. Most educational organiza-
tions submitted amicus briefs supporting the federal regulation,123
121. Two bits of testimony before the House Judiciary Subcommittee provided slim evi-
dence of links between guns on school grounds and either interstate gangs or the drug trade.
The Cleveland, Ohio, Police Chief testified: "We have identified gang members coming from
Los Angeles, Chicago, Detroit, and other areas around the country, coming into the Cleve-
land area and trying to organize our gangs..•• We have reason to believe that they are also
supplying them with weapons." Gun-Free School Zones Act of 1990: Hearings on H.R. 3757
Before the Subcomm. on Crime of the House Comm. on the Judiciary, lOlst Cong., 1st Sess.
25 (1990) (statement of Edward Kovacic). Similarly, an official from the Bureau of Alcohol,
Tobacco, and Firearms described an operation against drug dealers near elementary and sec-
ondary schools in Detroit, Michigan. As part of the operation, law enforcement officers
seized almost two dozen guns. Id. at 14-15. Congress, however, did not explore either of
these references further, and the Government did not cite these pieces of testimony in its
Lopez brief. Nor did the Government's argument in Lopez otherwise stress any connection
between guns on school grounds and either interstate gangs, interstate drug trafficking, or
organized crime.
For a description of factors justifying federal prosecution of local crimes, see Mengler,
supra note 72, at 526. Dean Mengler, who has served as a consultant to the Long Range
Planning Committee of the Judicial Conference of the United States, lists these circum-
stances justifying federal prosecution: (1) "state enforcement is impeded by the multistate or
international aspects of the case"; (2) "[t]he conduct is so economically or technologically
sophisticated that it takes the concentrated resources of the federal government to prosecute
effectively"; (3) "[t]he conduct involves serious, high-level or widespread state or local gov-
ernment corruption"; or (4) "[t]he conduct, because it raises highly sensitive social (typically
racial) issues in the local community, is perceived as being more objectively prosecuted in the
federal system." Id. None of these factors appears to describe gun possession on school
grounds. As Mengler recognizes, Congress undoubtedly has the power to regulate crimes
falling outside these guidelines. These factors, however, serve to describe cases in which the
courts might perceive a strong federal need to criminalize conduct. The lack of that urgency
in Lopez was one of the factors contributing to the majority's decision.
122. Although any threat of violence to schoolchildren is a dire social issue demanding
attention, there is also some question about the scope of the problem Congress addressed.
As Lopez's attorneys pointed out in their brief, the evidence before Congress was "tragic"
but fell short of establishing a national crisis. Over half the school gun incidents reported to
Congress involved only six states, and many of the students who habitually carried weapons
to school carried weapons other than firearms. See Brief for Respondent, supra note 74, at
44. Most of the dramatic incidents of gun violence recounted to Congress, moreover, in-
volved outsiders who entered school property and opened fire suddenly on the children.
None of these incidents would have been prevented or the punishment for them enhanced
through the Gun-Free School Zones Act.
123. The education-related organizations or individuals who joined amicus briefs in sup-
port of the Gun-Free School Zones Act included the American Federation of Teachers, Na-
tional Association of Elementary School Principals, National Education Association,
National PTA, Council of Great City Schools, National School Safety Center, American As-
but the National School Boards Association - representing ap-

proximately 97,000 school board members- joined a brief oppos-
ing the federal law. The National School Boards Association
confessed that it was "deeply concerned about violence and crime
in and around the schools" but complained that "redundant federal
laws do not address the problem of violence in the schools."124
Drawing upon its own experience, the Board and other amici con-
tended that "enactments such as the Gun-Free School Zones Act
interject federal officials into longstanding and close working rela-
tionships which exist between local school administrators, police
and prosecutors."125 These amici also noted that the federal gov-
ernment lacked "the resources and commitment to prosecute" cases
involving gun possession in schools, so that the federal law induced
a false sense of "complacency in the citizenry."126
The Lopez majority, like the dissenters, undoubtedly perceived
that gun possession on school grounds is a serious problem. The
Government's failure to identify an urgent national need to combat
that problem, however, contributed to the majority's rejection of
congressional power.127
sociation of School Administrators, National Association of Secondary School Principals,

National Association of School Resource Officers, National Association of School Safety and
Law Enforcement Officers, and Dr. Stuart Gothold (Superintendent of the Los Angeles
County Schools).
124. Amicus Brief of National Conference of State Legislatures, supra note 119, at 2.
125. !d. at 26-27.
126. !d. at 27. August W. Steinhilber, General Counsel of the National School Boards
Association, praised the Lopez decision after it was issued. See Mark Walsh, Justices Reject
Ban on Guns Near Schools, Enuc. WEEK, May 3, 1995, at 1, 24 (quoting Steinhilber as saying
"[w]e couldn't have asked for a better opinion [than Lopez] in terms of corralling Congress
in. Too often, members of Congress pass this feel-good legislation that has no real impact").
Other education groups, however, remained supportive of the federal law and criticized the
Court's ruling. See, e.g., id. (quoting both the Executive Director of the Council of the Great
City Schools and the Vice President of the National Education Association); Court's Ruling
on Gun-Free School Zones Harms Safe Schools Effort, Unions Say, 33 Govt. Empl. Ret. Rep.
(BNA) 614 (May 1, 1995) (Both Bob Chase, Vice President of the National Education Asso-
ciation, and Albert Shanker, President of the American Federation of Teachers, "expressed
disappointment" in the Lopez ruling.).
127. President Clinton and Attorney General Reno continue to maintain that national
protection of gun-free school zones is essential. See John M. Broder, President Blasts Ruling
on Firearms, L.A. TIMES, Apr. 30, 1995, at A14; Senate Judiciary Hearing, FED. NEws SERv.,
June 27, 1995, available in LEXIS, News Library, CURNWS File. (testimony of Attorney
General Janet Reno). The administration has also introduced a new version of the Gun-Free
School Zones Act designed to meet the Court's constitutional objections in Lopez. See supra
note 89. The brief statements issued by the President and Attorney General, however, con-
tinue to focus on the dangers of guns in schools rather than on the special need for federal
regulation in this area.
7. Positive and Negative Competition Among the States

The need for national regulation is particularly. strong when
competition among the states prevents each state from addressing
the problem in isolation. Individual states cannot regulate effec-
tively wages and hours, the Court recognized in United States v.
Darby, because competition from goods produced in more
business-friendly states will drive the regulated businesses to
ruin. 128 Imposition of collective bargaining by a single state simi-
larly will encourage businesses to move to another state. The infa-
mous "race to the bottom" inhibits many types of social and
economic legislation in individual states.129
Scholars, however, have recognized that competitive pressures
also encourage states to improve some types of services. States
compete for families, businesses, and tourists by offering modern
transportation networks, effective police forces, and other ameni-
ties.130 Some evidence suggests that high-quality schools are partic-
ularly important in drawing high-income families and high-tech
industries to a region.1 31 States also compete by offering progres-
sive regulations that appeal to some segments of the citizenry. Res-
idents have flocked to some western states that use aggressive
measures to protect the environment - despite the fact that these
laws impose significant costs on business and taxpayers. 132
128. See United States v. Darby, 312 U.S. 100, 122 (1941). Similarly, in NLRB v.
Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937}, the Court observed:
With accepted competition between the industry's enterprises an accepted fact regard-
less of location, and bearing in mind the purpose and effect of the migration of enter-
prises, it seems unavoidable that the members of the Amalgamated Clothing Workers
should ... regard the industry as one •.. in which union conditions, to be maintained at
all, must prevail generally.
301 U.S. at 59.
129. Professor William Cary coined the phrase "race to the bottom" in his discussion of
effective corporate regulation. See William L. Cary, Federalism and Corporate Law: Reflec-
tions Upon Delaware, 83 YALE L.J. 663,705 (1974).
130. See John Shannon, Federalism's "Invisible Regulator"-Interjurisdictional Competi-
tion, in CoMPETITION AMONG STATES AND LoCAL GOVERNMENTS: EFFICIENCY AND Ea.
U1TY IN AMERICAN FEDERAUSM 117 (Daphne S. Kenyon & John Kincaid eds., 1991).
131. See id. In particular, Shannon cites the success of North Carolina in building its
economy through heavy investment in education; the recent willingness of other southern
states to raise taxes in order to improve their public schools and attract more residents; and
the fact that "[t]he first-rate school systems of Montgomery County, Maryland, and Fairfax
County, Virginia, are widely believed to be the magnets that help attract upper-income tax-
payers and high-tech employers to their jurisdictions." /d. at 121.
132. See Ray M. Broughton, Electronics Manufacturing: Oregon's Newest Growth Indus-
try, AM. BANKER, July 25, 1979, at 54 (describing Oregon's environmental standards as
"stringent" and noting that the state's population grew twice as fast as that of the United
States during the 1970s); Michael Satchell, The West's Last Range War: How Much of South-
ern Utah Should Be Set Aside as Wilderness?, U.S. NEWS & Wo~ REP., Sept. 18, 1995, at
54, 55 (City-dwellers have "flock[ed]" to the mountain states and supported strict environ-
mental laws to "protect the open spaces that attracted them."), For possible competition
When states compete by withholding services or legislative pro-

tections, and citizens would choose those protections in the absence
of competition, federal regulation makes sense. When states com-
pete to offer services and laws, however, federal intervention is re-
dundant. Gun-free school zones fall into the second, rather than
the first, of these categories. Both families and businesses will be
attracted to states with safe, nonviolent schools; few residents
would flee a state that adopted gun-free school zones. Although
the Court did not explicitly acknowledge this factor in Lopez, it
may have been influenced by a rationale opposite from the one mo-
tivating Darby: states not only regulate gun possession in schools,
but they have every incentive to continue that regulation.
8. The Federalization of Criminal Law
The Lopez majority stressed that criminal law, like education, is
a matter traditionally left to the states.133 The intersection of two
areas traditionally committed to state regulation may have made
the Court particularly reluctant to uphold the Gun-Free School
Zones Act. In addition to these federalism concerns, the Lopez
majority may have been influenced by a more prosaic concern for
the alarming growth in the criminal caseload of the federal courts.
Since 1980, the annual number of federal criminal cases has ex-
panded by more than fifty percent.134 Criminal cases now account
for almost one-half of all federal trials,135 and, in some districts,
criminal trials swamp civil ones. The federal courts of Southern
California, for example, heard six criminal trials for every civil one
during 1991.136
This ominous growth in the criminal docket has led to both for-
mal and informal expressions of judicial concern. Almost ten years
ago, Judge Roger Miner warned that with the escalating creation of
new federal crimes, "we have the makings of a glut that threatens to
among states over a different matter, see Jennifer Gerarda Brown, Competitive Federalism
and the Legislative Incentives to Recognize Same-Sex Marriage, 68 S. CAL. L. REv. 745 (1995)
(suggesting how states may compete to become the first to recognize same-sex marriages,
with a prize of over four billion dollars in revenue likely to flow to the first state).
133. See United States v. Lopez, 115 S. Ct. 1624, 1631 n.3 (1995); see also 115 S. Ct. at
1632 ("[A]reas such as criminal law enforcement or education [are ones] where States histori-
cally have been sovereign.").
134. In 1980, there were 27,968 federal criminal cases. By 1994, that number had grown
to 44,919. See Mengler, supra note 72, at 505.
135. The percentage of criminal trials has reached 47% nationwide. See id. at 506.
136. See id. at 506 n.23 (noting that 86% of that district's trials were devoted to criminal
matters). The Middle District of North Carolina (84.8% ), District of New Mexico (76.4% ),
and District of Arizona (74.4%) also recorded remarkably high percentages of criminal trials.
See id.
overwhelm the federal courts." 13 7 In 1990, a Federal Courts Study

Committee cautioned that "the long-term health of the federal judi-
cial system require[s] returning the federal courts to their proper,
limited role in dealing with crime. " 138 And Judge Thomas Wiseman
recently reported:
At every meeting of federal judges that I attend there is the complaint
that the Congress is broadening federal jurisdiction to the point where
we are unable to do our jobs. The historically unique and discrete
jurisdiction of the Federal Courts is being distorted. The constant la-
ment is that the constitutional concept of Federalism is being eviscer-
ated by the Congress.139
The expansion of federal crime control has created problems be-
yond the fatigue of overworked federal judges. Overlapping state
and federal offenses give federal prosecutors unfettered power to
decide which defendants will be prosecuted under federal law and
which will be left to state law. 140 Penalties may differ substantially
under the two codes; procedural rights for the defendant may also
vary - with state courts sometimes offering protections that ex-
ceed those guaranteed by the Federal Constitution. 141 As one dis-
trict judge has commented, this unfettered discretion to subject
defendants to different criminal regimes is the type of abuse the
Framers most feared in a central government with broad police
power.142
137. Roger J. Miner, Federal Courts, Federal Crimes, and Federalism, 10 HARv. J.L. &
PuB. POLY. 117, 118 (1987); see also HENRY J. FRIENDLY, FEDERAL JURISDICfiON: A GEN·
ERAL VIEw 58 (1973) ("The question whether federal criminal prosecutions have not greatly
outreached any true federal interest ..• deserves the most serious examination, particularly
in light of the tremendous increases in criminal filings.").
138. REPORT OF THE FEDERAL COURTS STUDY CoMMITTEE 35-37 (1990),
139. United States v. Cortner, 834 F. Supp. 242, 244 (M.D. Tenn. 1993), revd. sub nom.
United States v. Osteen, 30 F.3d 135 (6th Cir. 1994); see also United States v. Morrow, 834 F.
Supp. 364, 365 (N.D. Ala. 1993) (referring to the "overworked federal courts upon which
Congress thrusts the enforcement of an accelerating volume of federal crime fighting
statutes").
140. See United States v. Mallory, 884 F. Supp. 496, 498 (S.D. Fla. 1995) ("[N]othing
prevents a federal prosecutor from selectively overriding the state law for reasons that may
be purely arbitrary" or that may reflect a "disdain for the zeal or competence of state prose-
cutors."); United States v. Ornelas, 841 F. Supp. 1087, 1093 n.ll (D. Colo. 1994), revd., 56
F.3d 78 (lOth Cir. 1995). But cf. United States v. Williams, 51 F.3d 1004 (11th Cir.) (disap-
proving the result in Mallory), cert. denied, 116 S. a. 258 (1995). Enforcement of federal
statutes also varies from one part of the country to another. See Robert Chippendale, Note,
More Harm Than Good: Assessing Federalization of Criminal Law, 19 MINN. L. REV. 455,
468 (1994}.
141. See Amicus Brief of National Conference of State Legislatures, supra note 119, at
29-30; BARRY LA1ZER, STATE CoNSTITUTIONS AND CRIMINAL JusncE {1991}; William J.
Brennan, State Constitutions and the Protection of Individual Rights, 90 HARV. L. REv. 489,
495 (1977).
142. See Ornelas, 841 F. Supp. at 1093 n.11. For other criticisms of the growth of federal
criminal law, see WJlliam Van Alstyne, Dual Sovereignty, Federalism and National Criminal
Equally troubling, duplicate state and federal crimes give prose-

cutors two chances to convict each defendant. Under the "dual sov-
ereignty" doctrine, the Double Jeopardy Clause fails to protect
defendants against successive state and federal prosecutions.143 By
duplicating so many traditional state crimes, Congress has aggra-
vated this potential for abuse.
The Gun-Free School Zones Act thus touched another sensitive
point. The Supreme Court, like the lower courts, may have been
concerned about the dragging weight of criminal cases on the fed-
eral docket. Some Justices may also have been aware of the pos-
sibilities for abuse inherent in duplicate state and federal crimes.
Without any urgent need for a federal prohibition against gun pos-
session near schools, the Court may have been content to strike this
addition to federal caseloads.144
9. Conduct Outside the Workplace
The Court's distinction between commercial and noncommer-

cial activity, as well as its rejection of the Government's link be-
tween education and economic health, may rest on a perception
that the workplace is more closely tied than other locales to inter-
state commerce. The Court has never explicitly recognized this dis-
tinction, but its most far-reaching commerce cases involve
congressional regulation of the workplace. Filburn's farm was his
workplace; he regularly sold some of his wheat, as well as milk,
Law: Modernist Constitutional Doctrine and the Nonrole of the Supreme Court, 26 AM. CRIM.
L. REv. 1740, 1753 (1989); and Chippendale, supra note 140, at 467-71.
143. See Bartkus v. Illinois, 359 U.S. 121 (1959); United States v. Lanza, 260 U.S. 377
(1922); Sandra Guerra, The Myth of Dual Sovereignty: Multijurisdictional Drug Law En-
forcement and Double Jeopardy, 73 N.C. L. REv. 1159 (1995).
144. As Judge WISeman noted after lamenting the growing scope of federal criminal juris-
diction, "The Congress is able [to expand jurisdiction in this manner], however, only because
we in the judicial branch are willing to interpret the Commerce Clause of the Constitution so
broadly." United States v. Cortner, 834 F. Supp. 242, 244 (M.D. Tenn. 1993); see also Ira
Mickenberg, Court Settles on Narrower View of 4th Amendment, NATL. L.J., July 31, 1995, at
CB, C12 (stating that Lopez. may constitute "a message to Congress expressing the court's
displeasure with legislation that will increase federal caseloads while adding nothing to ex-
isting state criminal law").
poultry, and eggs.14S Even Perez v. United Statest46 upheld federal

regulation of the illicit workplaces of organized crime.
The Lopez dissenters argued briefly that schools are workplaces
and wondered why Congress could not regulate an industry that
spends more than $200 billion each year. 147 The Government, how-
ever, did not defend the Gun-Free School Zones Act on this
ground, and the Lopez majority ignored the dissent's brief argu-
ment on this point. Instead, the Government and Court viewed
schools as training grounds one step removed from the world of
work. This characterization helped persuade the Lopez majority
that gun-free school zones fell outside Congress's commerce
power.t4s
145. Most accounts of Wickard v. Filburn, 317 U.S. 111 (1942), suggest that Filburn grew
his wheat purely for home consumption. In fact, his practice was "to sell a portion of the
crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in
making flour for home consumption; and to keep the rest for the following seeding." 317
U.S. at 114. The record did not reveal the "intended disposition of the crop ..• involved,"
317 U.S. at 114, so the Court assumed that at least some of the crop would be consumed by
Filburn's family and livestock. Filburn, however, plainly was a commercial farmer. See also
infra notes 313-19 and accompanying text (discussing the limiting features of Wickard).
146. 402 U.S. 146, 155 {1971) ("[L]oan sharking was 'the second largest source of revenue
for organized crime' ... and is one way by which the underworld obtains control of legitimate
businesses." (citations omitted) (quoting PRESIDENT'S COMMISSION ON LAW ENFORCEMENT
AND ADMINISTRATION OF JuSTICE, CruME IN A FREE SoCIETY 189 {1967))). The Court in
Perez further observed that:
the loan shark racket is controlled by organized criminal syndicates, either directly or in
partnership with independent operators ... in most instances the racket is organized into
three echelons, with the top underworld 'bosses' providing the money to their principal
'lieutenants,' who in turn distribute the money to the 'operators' who make the actual
individual loans.
402 U.S. at 155-56; see also Hair, supra note 118, at 834 ("Although the Extortionate Credit
Transactions Act sets out criminal penalties, its economic theme so predominates that the
Act is in reality another congressional measure to regulate an interstate business-the
unique business of organized crime.").
For other examples of decisions upholding workplace regulation, see Hodel v. Virginia
Surface Mining & Reclamation Assn., 452 U.S. 264 (1981) (regulation of strip mining compa-
nies); Katzenbach v. McClung, 379 U.S. 294 (1964) (discrimination by restaurant operators
and employees); Heart of Atlanta Motel v. United States, 379 U.S. 241 {1964) {discrimination
by hotel operators and employees); United States v. Darby, 312 U.S. 100 (1941) (wages and
hours of employees); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (collective
bargaining in the workplace).
147. See United States v. Lopez, 115 S. Ct. 1624, 1664 (1995) (Breyer, J., dissenting).
148. Even when regulating the workplace·, Congress has been more likely to control em-
ployers and employees than to attempt regulation of customers, like students, or casual visi-
tors, like those who might run afoul of the Gun-Free School Zones Act. Perez sustained
punishment of the loan shark, not of his victim; Heart of Atlanta and McClung approved
restrictions on hotel and restaurant operators, not on customers; and Filburn paid for his
deeds as a producer, not as a consumer. The Supreme Court, however, long ago upheld
federal punishment of criminals who rob or extort interstate businesses. See United States v.
Green, 350 U.S. 415 (1956) (discussing the Hobbs Act, discussed infra notes 166-79 and ac-
companying text). Fmally,just last Term, the Court enforced a federal arbitration law against
the customer of a local business. See Allied-Bruce Terminix Cos. v. Dobson, 115 S. Ct. 834
(1995), discussed infra notes 268-75 and accompanying text.
The Court, of course, has approved some exercises of congres-

sional power that are not confined to the workplace. Congress may
prohibit indivi~uals from transporting alcoholic beverages, diseased
livestock, and other articles in interstate commerce; the Court has
upheld these prohibitions even as applied to purchasers or consum-
ers.149 The Court has also sustained punishment of convicted felons
who acquire guns that have previously moved in interstate com-
merce.150 Extending regulation beyond the conduct of employers
and employees in the workplace, however, may raise constitutional
questions when other connections to interstate commerce are
weak.lSl
Conversely, the Supreme Court might be more willing to accept
the Government's most expansive theories for congressional regu-
lation if those theories are linked to employers and employees.
Congress, for example, might set national licensing standards for
teachers on the ground that well-trained teachers are essential for
proper education and that effective education is necessary to feed a
strong economy. The structure of the argument would be the same
If the Government had characterized more aggressively schools as workplaces, it might
have convinced the Court to uphold the Gun-Free School Zones Act by analogy to the
Hobbs Act The lower courts routinely have applied the latter Act to the robbery or extor-
tion of any business making purchases or sales in interstate commerce. See infra note 171.
Schools indisputably purchase supplies from other states and exert other economic effects on
interstate commerce, so the Government could have argued that guns - like robbery or
extortion - interfere with businesses operating in interstate commerce.
The Government may have avoided this argument for two reasons. Ftrst, it may have
worried that the Court would refuse to characterize schools as "businesses," instead reviving
its affection for "the States' freedom to structure integral operations in areas of traditional
governmental functions." See National League of Cities v. Usery, 426 U.S. 833, 852 (1976).
Second, the Government may have recognized that guns interfere primarily with the quality
of education, not with the quantity of books and rulers traded across state lines. This fact
prompted the Government's focus on the theory embraced in Justice Breyer's dissent, that
guns destroy education and thus harm future productivity.
Still, the analogy to the Hobbs Act suggests that the Government might have been more
successful stressing the immediate obstruction of schools as businesses. The Court certainly
would have found this theory more cabined than the alternative theories the Government
offered. See supra notes 56-65 and accompanying text.
149. See, e.g., United States v. Hill, 248 U.S. 420 (1919) (transportation of liquor for per-
sonal use); Carninetti v. United States, 242 U.S. 470 (1917) (transportation of personal mis-
tress); Champion v. Ames, 188 U.S. 321 (1903) (transportation of lottery tickets); Reid v.
Colorado, 187 U.S. 137 (1902) (transportation of diseased livestock).
150. See Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 423
U.S. 212 (1976). Both of these cases construed federal law to allow punishment under these
circumstances, although neither one explicitly considered the constitutional issue. See also
infra notes 180-85 and accompanying text.
151. In the first set of cases noted above, when Congress forbids the interstate transport
of particular articles, it regulates the channels of commerce directly. The nexus with inter-
state commerce is thus more direct. The federal prohibition of firearm possession by con-
victed felons is one of the most dubious federal laws after Lopez, but it rests on an express
jurisdictional element and other special factors that may save its constitutionality. See infra
notes 180-85 and a:companying text.
as the one advanced in Lopez, but the regulation of work per-

formed by employees in the workplace might make the Court more
comfortable that the regulation "substantially affected" interstate
commerce.152
10. The Need To Set Some Limit
The Lopez majority expressed grave concern that sustaining the
Gun-Free School Zones Act under the Government's rationales
would render Congress's commerce power completely un-
bounded.153 This factor may have been the most influential one of
all in Lopez; it motivated the Court's distinction between commer-
cial and noncommercial activities, as well as its rejection of the
Government's most plausible rationales for national power. The
majority's wariness of regulatory rationales that would encompass
all forms of human behavior may play a role in future cases as well.
On the other hand, now that Lopez has demonstrated some
limit to congressional power under the Commerce Clause, the
Court may feel less compelled to recognize other limits. At its nar-
rowest, Lopez can be viewed as a case staking out the desperate
position that some activity must fall beyond Congress's ken. Hav-
ing made that point and encouraged Congress to think more care-
fully about its limited powers, the Court may be content to defer to
most other exercises of congressional jurisdiction.
B. Lower Court Interpretations of Lopez

In the first three months after Lopez was decided, the lower
courts issued more than three dozen opinions exploring the bounds
of Lopez. 1S 4 These opinions confirm that the courts will identify
the distinguishing features discussed above and treat Lopez as a
narrow, exceptional ruling. Several decisions have followed the
Supreme Court's specific ruling in Lopez, reversing convictions
based on the Gun-Free School Zones Act,1ss but only one court has
struck down another congressional statute under the Supreme
152. Other factors, of course, might influence the constitutionality of this type of regula-
tion. An absence of clear congressional findings on the link between education and the econ-
omy would reduce the chances that the Court would uphold the statute. The direct
regulation of education might also dissuade some Justices.
154. This section of the article considers only opinions issued before August 1, 1995.
Over the summer of 1995, lower court opinions citing Lopez appeared several times a week.
155. See, e.g., United States v. Glover, No. 94-3131, 1995 U.S. App. LEXIS 15113 (lOth
Cir. June 19, 1995); United States v. Walker, 59 F.3d 1196 {11th Cir. 1995); United States v.
Ornelas, 56 F. 3d 78 {lOth Cir. 1995); United States v. Edwards, 55 F.3d 428 {9th Cir. 1995);
United States v. Murphy, 53 F.3d 93 (5th Cir. 1995).
Court's Lopez decision. That ruling, as explained further below, is

at odds with several other decisions and is likely to be reversed on
appeal. 156 Other decisions uniformly uphold numerous broad con-
gressional statutes under the Commerce Clause.
Lopez has stimulated some lower courts to interpret statutory
language more cautiously. One court has construed the federal
money laundering statute somewhat narrowly after Lopez, and an-
other - in an opinion rendered between the Fifth Circuit and
Supreme Court decisions in Lopez - has refused to apply the
Hobbs Act to the robbery of a personally owned vehicle. In the
courts, Lopez may have its major impact by encouraging courts to
narrow slightly the scope of federal criminal statutes, rather than by
leading to the wholesale invalidation of portions of the U.S. Code.
1. Drug-Free Schools
The Drug-Free School Zones Act,157 which prohibits "distribut-

ing, possessing with intent to distribute, or manufacturing a con-
trolled substance" within 1000 feet of a school,158 is first cousin to
the Gun-Free School Zones Act. Despite superficial resemblances
between the two Acts, the District Court for the District of Kansas
upheld the Drug-Free School Zones Act in United States v. Garcia-
Salazar.159
The Garcia-Salazar court pointed to at least three differences
between drug-free and gun-free school zones. First, the Drug-Free
School Zones Act regulates commercial activity: it prohibits distri-
bution, possession with intent to distribute, and manufacture of
156. See infra notes 205-19 and accompanying text. Another district court, ruling before
the Supreme Court's Lopez decision, invalidated the Freedom of Access to Clinic Entrances
Act on commerce grounds. That decision also is likely to be reversed on appeal; it conflicts
with the decisions of eight other courts, including two courts of appeal. See infra notes 220-
33 and accompanying text.
157. 21 u.s.c. § 860 {1994).
158. 21 U.S.C. § 860{a) (1994). The Act erects a similar drug-free zone within 1000 feet
of "a public or private college, junior college, or university, or a playground, or housing
facility owned by a public housing authority," and within 100 feet of "a public or private
youth center, public swimming pool, or video arcade facility." 21 U.S.C. § 860(a) {1994).
159. 891 F. Supp. 568 (D. Kan. 1995); see also United States v. Walker, No. 94-40058-01-
SAC (criminal trial pending in D. Kan.) (parties still briefing constitutionality of 21 U.S.C.
§ 860 (1994) after Lopez). Several other decisions had upheld the Drug-Free School Zones
Act before Lopez. See, e.g., United States v. McDougherty, 920 F.2d 569 {9th Cir. 1990), cert.
denied, 499 U.S. 911 {1991); United States v. Thornton, 901 F.2d 738 {9th Cir. 1990); United
States v. Martinez, 1994 WL 424097 (N.D. Ill. Aug. 10, 1994), affd., Martinez v. United States,
51 F.3d 275 {7th Cir. 1995) {dismissing the challenge to Drug-Free School Zones Act, based
on Fifth Circuit's decision in Lopez, as "frivolous").
controlled substances. 16o Unlike the Gun-Free School Zones Act,

the Drug-Free School Zones Act does not regulate simple posses-
sion. The sale of controlled substances, whether in schoolyards or
on street corners, is an economic act falling readily within the
Lopez majority's solicitude for commercial regulation.161
Second, when Congress adopted a comprehensive ban against
drug trafficking in 1970, it extensively documented the "substantial
connection" between intrastate drug sales and interstate com-
merce.162 The Drug-Free School Zones Act, enacted fourteen years
later, merely enhances punishment for these existing offenses when
they occur in a school zone. Because the Drug-Free School Zones
Act built upon previous legislation, without criminalizing new con-
duct, the court was willing to rely upon Congress's 1970 findings to
sustain the Act.163 Once Congress had documented a substantial
connection between all intrastate drug sales and interstate com-
merce, Congress did not have to re-establish a substantial connec-
tion between a subset of intrastate drug sales and interstate
commerce.
Finally, the court stressed that federal law bans all manufacture
and sale of narcotics and that the Supreme Court has readily upheld
those bans under the Commerce Clause.164 Because Congress has
constitutionally prohibited all trade in controlled substances, it may
enhance the punishment of defendants who carry out that trade
near schoolyards. As the Ninth Circuit observed when upholding
160. Garcia-Salazar, 891 F. Supp. at 572 ("Drug trafficking is inherently commercial in

nature; firearm possession is not.").
161. This focus on manufacture and distribution makes the Drug-Free School Zones Act
an "easy case" under Lopez. Even if Congress enhanced punishment for simple drug posses-
sion near schools, however, the statute likely would pass constitutional muster under the
other rationales discussed in this section.
162. See 891 F. Supp. at 571.
163. See 891 F. Supp. at 571. The parties in Garcia-Salazar did not cite any more recent
findings made in connection with th~ 1984 adoption of the Drug-Free School Zones Act.
Thus, the court assumed that further findings tying that Act to interstate commerce did not
exist. See 891 F. Supp. at 571.
As explained above, the Gun-Free School Zones Act created a federal prohibition against
a wide range of conduct for the first time. See supra notes 73-74 and accompanying text. For
that reason, the courts could not rely upon findings made in connection with earlier gun
control statutes.
164. See 891 F. Supp. at 570-71 (citing Minor v. United States, 396 U.S. 87, 98 n.13 (1969);
Reina v. United States, 364 U.S. 507, 511 (1960); United States v. Walsh, 331 U.S. 432, 434
(1947); Hem v. United States, 268 U.S. 178, 183 (1925); McDermott v. Wisconsin, 228 U.S.
115, 128 (1913)).
Since Lopez, several lower courts have confirmed Congress's power to regulate the man-
ufacture and sale of narcotics under the Commerce Clause. See United States v. Bramble,
894 F. Supp. 1384, 1394-96 (D. Haw. 1995); United States v. Gonzalez, 893 F. Supp. 935, 936
(S.D. Cal. 1995); United States v. Johnson, 890 F. Supp. 504, 507 n.7 (W.D. Va. 1995).
the Drug-Free School Zones Act several years before Lopez, "It
would be highly illogical to believe that [drug] trafficking somehow
ceases to affect commerce when carried out within 1000 feet of a
school. " 165 -. : · ..... r ,
For these three reasons, the J:?rug-Free School Zones Act is
likely to survive Gommerce Clause. scrutiny. Indeed, the Act dem-
onstrates that Congress retains the power to regulate conduct
touching education, to punish purely intrastate acts, and to regulate
dangerous contraband after Lopez.
2. Hobbs Act
The Hobbs Act166 prohibits extortion and robbery that "in any
way or degree ... affects commerce."167 The Supreme Court up-
held Congress's power to enact this statute in 1956,168 and two
lower courts have confirmed the Act's constitutionality in the wake
of Lopez. 169 The Hobbs Act "is aimed at a type of economic activ-
ity, extortion," and also "contains an express jurisdictional ele-
ment."170 That element requires the prosecution to prove an
obstruction of or other interference with commerce in each case.
As the Supreme Court recognized almost forty years ago, Congress
may "protect[] ... interstate commerce against injury from extor-
tion ... racketeering," and other disruptive acts.171
Although the Hobbs Act is likely to withstand facial attack,
Lopez may encourage lower courts .to narrow the class of activities
satisfying the Act's jurisdictional ·element. Even before the
Supreme Court's Lopez ruling, the Fifth Circuit relied upon its
Lopez decision to reject the application of the Hobbs Act to the
165. United States v. McDougherty, 920 F.2d 569, 572 (9th Cir. 1990), cert. denied, 499
U.S. 911 (1991). When Congress bars interstate trade in a product, it may also punish local
possession of the contraband as a way of enforcing its primary ban. See United States v.
Atkinson, 513 F.2d 38, 39-40 (4th Cir. 1975) (invoking this rationale to uphold federal regula-
tion of intrastate narcotics possession).
166. 18 u.s.c. § 1951 (1994).
167. 18 U.S.C. § 1951(a) (1994).
168. See United States v. Green, 350 U.S. 415 (1956).
169. See United States v. Stillo, 57 F.3d 553 (7th Cir. 1995); United States v. Arena, 894 F.
Supp. 580 (N.D.N.Y. 1995).
170. Stillo, 51 F.3d at 553 n.2.
171. Green, 350 U.S. at 420-21. Both the Supreme Court and lower courts have upheld
Hobbs Act prosecutions whenever the defendant threatened a business making purchases or
sales across state lines. The potential interference with that trade is sufficient to demonstrate
an effect on interstate commerce. See, e.g., Stirone v. United States, 361 U.S. 212 (1960);
United States v. Davis, 30 F.3d 613 (5th Cir. 1994); United States v. Zeigler, 19 F.3d 486 (lOth
Cir. 1994); United States v. Scaife, 749 F.2d 338 (6th Cir. 1984).
robbery of a homeowner's cash, jewelry, clothes, and car.1n The

Government argued that the victim worked for a national computer
company, that the theft of his earphone and other belongings would
disrupt his performance at work,173 and that this disruption would
affect the company's production in interstate commerce.
The Fifth Circuit correctly perceived that acceptance of the
Government's "employee work disruption" rationale, as applied to
the theft of private belongings from the employee's home, would
render the Hobbs Act "ubiquitous, and any robbery ... arguably
would affect interstate commerce."174 Like the Supreme Court in
Lopez, the Fifth Circuit was not willing to countenance this type of
open-ended argument. Instead, the court drew a line between
thefts directly affecting a business engaged in interstate commerce
and those affecting individuals employed by those businesses,17S
This distinction evokes the Supreme Court's separation of commer-
cial and noncommercial activities in Lopez and also supports the
observation - unarticulated in Lopez - that the courts are more
willing to link acts in the workplace with interstate commerce.176
172. See United States v. Collins, 40 F.3d 95 (5th Cir. 1994), cert. denied, 115 S. Ct. 1986
(1995).
173. In addition to stressing the loss of the earphone, the Government pointed out that
the theft of the victim's car prevented him from attending a business meeting. See 40 F.3d at
99. The Government, however, apparently did not attempt to show any special link between
these activities and interstate commerce- for example, that the meeting involved represent-
atives from other states or that the calls involved the company's interstate business.
174. 40 F.3d at 100.
175. See 40 F.3d at 99-100.
176. The Fifth Circuit summarily rejected the Government's alternative argument that
the theft affected interstate commerce because the stolen car previously had traveled inter-
state. See 40 F.3d at 99, 101 n.29. This ruling seems at odds with the Fifth Circuit's own
decision that Congress could punish the theft of "a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce" under the federal carjacking statute.
United States v. Harris, 25 F.3d 1275 (5th Cir.), cert. denied, 115 S. Ct. 458 (1994) (quoting 18
U.S.C. § 2119 (1992)). Proof that the stolen car previously traveled in interstate commerce is
sufficient to satisfy the jurisdictional element of the carjacking statute. The difference may lie
in the fact that the carjacking statute focuses exclusively on vehicles, which are closely associ-
ated with commerce, while acceptance of this argument under the Hobbs Act might prompt
arguments that the theft of any other article that had previously moved in interstate com-
merce would also satisfy the jurisdictional requirement. Congress also made explicit findings
that carjacking affects interstate commerce, and the courts appear persuaded that carjacking
is a systematic, interstate criminal activity requiring federal prosecution. See infra notes 196-
204 and accompanying text. These factors underscore the importance of context in drawing
constitutional lines after Lopez.
The Fifth Circuit's refusal to allow prosecution under the Hobbs Act when the only link
to interstate commerce is previous movement of a stolen vehicle is also at odds with the
Supreme Court's decision that federal prosecutors may punish gun possession by convicted
felons simply by showing that the gun once traveled in interstate commerce. See Scarbor-
ough v. United States, 431 U.S. 563 (1977). Once again, however, additional contextual fea-
tures may reconcile these rulings. See infra notes 180-85 and accompanying text.
The Fifth Circuit drew upon both constitutional and nonconsti-

tutional rationales for its narrow reading of the Hobbs Act. At one
point, the court acknowledged that" '[t]he Hobbs Act definition of
commerce is coextensive with the constitutional definition' "177 and
suggested that Congress could not constitutionally punish the theft
of these private belongings. The court, however, also suggested
that it would not construe the Hobbs Act this broadly without a
clear signal from Congress that the statute " 'significantly changed
the federal-state balance.' "178 Under either of these rationales,
lower courts may rely upon Lopez to uphold the Hobbs Act and
other statutes with express jurisdictional elements but apply those
elements cautiously to certain types of fact pattems.179
3. Firearms and Felons

Federal law prohibits any convicted felon to "possess in or af-
fecting commerce, any firearm or ammunition. "180 Of all the stat-
utes the lower courts have examined in light of Lopez, this one cuts
closest to the constitutional line. The prohibition embraces non-
commercial conduct and, like the Gun-Free School Zones Act, pun-
ishes the possession of guns that may be used lawfully in other
contexts. Equally troubling, the Act's jurisdictional element has
been construed to require only the most tenuous connection to in-
terstate commerce. In Scarborough v. United States, 181 the
Supreme Court held that the Government could satisfy this nexus
simply by proving that the firearm moved across state lines some-
time before coming to rest in the felon's hands. The Government
does not have to show that the felon transported the gun personally
across state lines.182
177. 40 F.3d at 100 (quoting United States v. Hanigan, 681 F.2d 1127, 1130 (9th Cir.
1982), cert. denied, 459 U.S. 1203 (1983)).
178. 40 F.3d at 101 (quoting United States v. Bass, 404 U.S. 336, 349 (1971)).
179. This tendency is not wholly novel. Even before Lopez, the federal courts sometimes
dismissed convictions on the ground that the Government had failed to prove an effect on
interstate commerce under the Hobbs Act See, e.g., United States v. Buffey, 899 F.2d 1402
(4th Cir. 1990) (finding that attempted extortion did not sufficiently affect interstate com-
merce because victim would have used personal assets to respond to blackmail); United
States v. Mattson, 671 F2d 1020 (7th Cir. 1982) (finding that the depletion of the personal
assets of an employee was not sufficient to show effect on interstate commerce). These rul-
ings may expand after Lopez.
180. 18 u.s.c. § 922(g) (1994).
181. 431 u.s. 563 (1977).
182. See also Barrett v. United States, 423 U.S. 212 (1976) (upholding application of the
statute to felon who purchased gun from local retailer, when gun had been shipped through
interstate commerce to the retailer); United States v. Bass, 404 U.S. 336 (1971) (holding that
statute requires individualized proof in each case of a connection with interstate commerce).
Despite these weak links with interstate commerce, the

Supreme Court's own precedents support the authority of Congress
to punish felons who possess guns that have moved in interstate
commerce. By interpreting the jurisdictional element this broadly
in Scarborough, the Court necessarily implied that Congress had
the power to legislate that comprehensively. Narrowing the prohi-
bition against gun possession by felons or striking down the entire
statute would require the Court to renounce its own precedents -
a prospect that appeared to discomfort most of the Lopez majority.
Relying upon Scarborough, more than a dozen lower court
opinions have upheld readily the federal ban on guns for felons. 183
These courts also have pointed to the express jurisdictional element
in the statute. Although the required link with interstate commerce
is weak, the statute does compel the Government to prove some
connection with interstate commerce in every case.t84
If the Supreme Court were writing on a clean slate after Lopez,
it might question the constitutionality of the broad federal ban
against gun possession by felons.tss Even if the Court reexamined
Scarborough, however, it might find sufficient grounds to distin-
guish Lopez. The history of federal gun control is lengthy and con-
voluted; findings associated with a prior version of the felon
provision might persuade the Court that Congress acted constitu-
tionally. Apart from any legislative history, the Court might dis-
183. See, e.g., United States v. Rankin, 64 F.3d 338 (8th Cir. 1995); United States v. Col-
lins, 61 F.3d 1379 (9th Cir. 1995); United States v. Pelkey, 61 F.3d 914 (9th Cir. 1995); United
States v. Mosby, 60 F.3d 454 (8th Cir. 1995); United States v. Hanna, 55 F.3d 1456 (9th Cir.
1995); United States v. Tripp, No. 94 CR 0567, 1995 WL 417591 (N.D. Ill. July 13, 1995);
United States v. Cole, No. CIV.A.95-3190, 1995 WL 375833 (E.D. Pa. June 16, 1995); United
States v. Bramble, 894 F. Supp. 1384 (D. Haw. 1995); United States v. Hart, 1995 WL 461801
(N.D. Ohio June 7, 1995); United States v. Edwards, 894 F. Supp. 340 (E.D. Wis. 1995);
United States v. Williams, 893 F. Supp. 617 (S.D. W.Va. 1995); United States v. Brown, 893
F. Supp. 11 (M.D.N.C. 1995); United States v. Campbell, 891 F. Supp. 210 (M.D. Pa. 1995).
Indeed, the Eighth Circuit in Mosby endorsed a particularly broad reading of the federal
government's power to prosecute convicted felons who possess ammunition. The felon in
that case possessed ammunition that had been manufactured in the same state. The court
held, however, that federal prosecution could rest on proof that some components of the
ammunition had been manufactured out-of-state because the statute defined "ammunition"
to include those component parts.
One district court has also upheld a related statute, punishing firearm possession by an
abuser of controlled substances. See Bramble, supra (upholding 18 U.S.C.A. § 922(g)(3)
(1994)). The court in Bramble, finally, upheld an unrelated statute protecting bald and
golden eagles.
184. See, e.g., Tripp, 1995 WL 417591, at *2; Brown, 893 F. Supp. at 12; Campbell, 891 F.
Supp. at 212.
185. See Campbell, 891 F. Supp. at 212 (noting that "[i]t may well be that Lopez signals
an important change in the Supreme Court's commerce-clause jurisprudence" and that the
Court will revisit earlier holdings but upholding the convicted felon statute until otherwise
instructed by the Court).
cover that gun possession by convicted felons implicates national

interests to a greater degree than do other types of gun possession.
Former felons, for example, may be more likely than other gun-
toting citizens to participate in interstate crime networks or to re-
ceive guns in violation of other federal gun control measures. Ra-
tionales of this nature might be developed to uphold the ban on gun
ownership by felons. Meanwhile, the prohibition rests somewhat
precariously on the Court's pre-Lopez precedents.
4. Machineguns
Congress has forbidden broadly any person to "transfer or pos-
sess a machinegun. " 186 Congressional regulation of the sale or
"transfer" of machineguns after Lopez is uncontroversial; the sale
of any article is commercial activity. At first glance, however, the
possession prong of the statute raises serious questions under
Lopez. The statute does not contain any jurisdictional element lim-
iting its prohibition to conduct affecting interstate commerce. Nor
did Congress make any findings that would explain the connection
between machinegun possession and interstate commerce.1s7
The Tenth Circuit, however, has already upheld this statute
against a Commerce Clause challenge.lss Because the machinegun
ban did not alter Congress's statutory approach to gun regulation,
the court drew upon findings and legislative history in earlier stat-
utes to illuminate Congress's purpose.189 Those findings and his-
tory demonstrated that federal intervention is necessary to control
all gun traffic and that machineguns in particular are linked to rack-
eteering and drug distribution.l9o
In addition, the court noted that "Congress prohibited the . . .
possession of ... machineguns not merely to ban these firearms, but
rather, to control their interstate movement by proscribing ... pos-
session."191 The key distinction between the prohibition of posses-
186. 18 U.S.C. § 922(o)(l) (1994).
187. Indeed, the Tenth Circuit has acknowledged that "[t]he legislative history surround-
ing" the challenged provision was "virtually nonexistent." United States v. Wilks, 58 F.3d
1518, 1519 (lOth Cir. 1995). The only justification for the machinegun prohibition, which
hardly addressed congressional power under the Commerce Clause, was a statement by the
statute's sponsor that "I do not know why anyone would object to the banning of machine
guns." 58 F.3d at 1519-20 (quoting 132 CoNG. REc. H1750 (1986) (statement of Rep.
Hughes)); see also United States v. Lopez, 2 F.3d 1342, 1356 (5th Cir. 1993), affd., 115 S. Ct.
1624 (1995) (discussing the legislative history of the machinegun statute).
188. See Wilks, 58 F.3d 1518.
189. See 58 F.3d at 1521 n.4.
190. See 58 F.3d at 1519.
191. 58 F. 3d at 1522.
sion in the machinegun statute and the prohibition of possession

under the Gun-Free School Zones Act is that Congress has banned
the interstate sale of machineguns. Having banned these interstate
transfers, a commercial activity well within its power to regulate,
Congress has the power to prohibit the possession of machineguns
as a means of enforcing its primary regulation.1 92 This type of ra-
tionale was not available to Congress under the Gun-Free School
Zones Act because it had not banned interstate sales of all the guns
regulated by that Act.
Other courts upheld congressional power to ban machineguns
before Lopez, 193 with only one district court in the Fifth Circuit
striking down the statute.194 The Fifth Circuit has not ruled ex-
pressly on the constitutionality of federal regulation of machine-
guns but has declared in dictum that "no one could seriously
contend that the regulation of machineguns could not ... be upheld
under Congress's power to regulate interstate commerce. " 195 The
unanimity of the rulings after Lopez, together \vith the rationales
supporting those results, suggest that the machinegun statute will
continue to be upheld.
5. Carjacking
Several post-Lopez decisions also sustained the federal carjack-
ing statute.196 That statute prohibits the taking of "a motor vehicle
that has been transported, shipped, or received in interstate or for-
eign commerce ... by force and violence or by intimidation" and
while in possession of a gun. 197 Courts upholding this statute have
192. See United States v. Hunter, 843 F. Supp. 235, 246-49 (E.D. Mich. 1994); cf. United
States v. Atkinson, 513 F.2d 38,39-40 (4th Cir. 1975) (adopting a similar rationale to uphold
regulation of intrastate possession of narcotics).
193. See, e.g., United States v. Pearson, 8 F.3d 631 (8th Cir. 1993), cert. denied, 114 S. Ct.
2132 (1994); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 113 S. Ct.1614
(1993); United States v. Evans, 928 F.2d 858 (9th Cir. 1991); Hunter, 843 F. Supp. at 235.
194. See United States v. Bownds, 860 F. Supp. 336 (S.D. Miss. 1994). The court focused
both on the absence of an express jurisdictional element in the statute and the lack of any
congressional findings expressing a link between machine gun possession and interstate com-
merce. On both counts, the court invoked the Fifth Circuit's decision in Lopez.
195. United States v. Ardoin, 19 F.3d 177, 180 (5th Cir.), cert. denied, 115 S. Ct. 327
(1994); see also United States v. Lopez, 2 F.3d 1342, 1356-57 (5th Cir. 1993) (noting the
distinctions between the Gun-Free School Zones Act and regulation of machineguns), affd.,
115 S. Ct. 1624 (1995).
196. See United States v. Green, No. 94-6215, 1995 WL 451782 (6th Cir. July 27, 1995);
United States v. Washington, No. 94-5914, 1995 WL 408128 (6th Cir. July 10, 1995); United
States v. Carolina, 61 F.3d 917 (lOth Cir. 1995); United States v. Oliver, 60 F.3d 547 (9th Cir.
1995); United States v. Williams, 51 F.3d 1004 (11th Cir.), cert. denied, 116 S. Ct. 258 (1995);
United States v. Garcia-Beltran, 890 F. Supp. 67 (D.P.R. 1995).
197. 18 U.S.C.A. § 2119 (West Supp. 1995).
identified a wide range of distinctions between this statute and the

Gun-Free School Zones Act. The carjacking statute contains a ju-
risdictional element requiring proof that the car was "transported,
shipped, or received in interstate ... commerce."19s Cars, unlike
school zones, are "commodities and instruments of travel"; thus
they are linked more closely to interstate commerce.199 Carjacking
is also an "economic activity," 2oo and the statute's legislative history
contains express findings that carjacking affects interstate com-
merce.201 Courts themselves have been convinced that "carjacking
is a systematic criminal activity that substantially affects the inter-
state and foreign commerce of automobiles and the interstate com-
merce of automobile insurance" and must be controlled by federal
action.202 Finally, carjacking, like discrimination by hotels and res-
taurants, is an activity that may deter interstate travel.203
Before the Supreme Court's decision in Lopez, the courts of ap-
peals agreed that the carjacking statute passed constitutional mus-
ter.204 The combination of factors discussed above, added to the
198. Oliver, 60 F.3d at 550; Garcia-Beltran, 890 F. Supp. at 71. The court in United States
v. Cortner, 834 F. Supp. 242 (M.D. Tenn. 1993), revd. sub nom. United States v. Osteen, 30
F.3d 135 (6th Cir. 1994), disagreed with this reliance on the jurisdictional element:
To say ... that because something once traveled interstate it remains in interstate com-
merce after coming to rest in a given state, is sheer sophistry. This Court, at one time,
owned a 1932 Ford which was manufactured in Detroit in the year 1931 and transported
to the state of Tennessee. It remained in the state of Tennessee thereafter. Now if this
car were hijacked today, some sixty years later, is it still in interstate commerce?
834 F. Supp. at 243. .
199. See Oliver, 60 F.3d at 550; Garcia-Beltran, 890 F. Supp. at 71.
200. See Oliver, 60 F.3d at 550.
201. See 60 F.3d at 550; Garcia-Beltran, 890 F. Supp. at 71. The court in United States v.
Mallory, 884 F. Supp. 496 (S.D. Fla. 1995), found that the legislative history of the carjacking
statute failed to show that carjacking "has any substantial impact on interstate commerce."
884 F. Supp. at 497-98. But see United States v. Williams, 51 F.3d 1004 (11th Cir.) (disap-
proving the interpretation by the court in Mallory), cert. denied, 116 S. Ct. 258 (1995).
202. Garcia-Beltran, 890 F. Supp. at 72.
203. See 890 F. Supp. at 72; cf. Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of
Atlanta Motel v. United States, 379 U.S. 241 (1964).
204. See, e.g., Williams, 51 F.3d at 1004; United States v. Martinez, 49 F.3d 1398 (9th Cir.
1995); United States v. Overstreet, 40 F.3d 1090 (lOth Cir. 1994), cert. denied, 115 S. Ct. 1970
(1995); United States v. Osteen, 30 F.3d 135 (6th Cir. 1994), cert. denied, 115 S. Ct. 1825
(1995); United States v. Harris, 25 F.3d 1275 (5th Cir.), cert. denied, 115 S. Ct. 458 (1994);
United States v. Johnson, 22 F.3d 106 (6th Cir. 1994); see also infra notes 280-81 (discussing
the Supreme Court's denial of certiorari in two of these cases).
1\vo district court judges struck down the carjacking statute after the Fifth Circuit's deci-
sion in Lopez but before the Supreme Court had ruled in that case. See Mallory, 884 F.
Supp. at 496; United States v. Cortner, 834 F. Supp. 242 (M.D. Tenn. 1993). Both of those
decisions, however, have been reversed or disapproved by their court of appeals. See
Williams, 51 F.3d at 1004 (disapproving Mallory implicitly); Osteen, 30 F.3d at 135 (unpub-
lished opinion at 1994 WL 389210) (reversing Cortner). The Sixth Circuit has twice reaf-
firmed its approval of the carjacking statute since Lopez. See United States v. Green, 64 F.3d
664 (6th Cir. 1995) (unpublished opinion at 1995 WL 492913); United States v. Washington,
61 F.3d 904 (6th Cir. 1995) (unpublished opinion at 1995 WL 424419).
courts' contiriued unanimity after Lopez, suggest that the statute is

unlikely to succumb to attack under the Commerce Clause.
6. Child Support
The lower courts have divided over the constitutionality of the
Child Support Recovery Act of 1992.205 That statute punishes par-
ents who "willfully fail[ ] to pay a past due support obligation with
respect to a child who resides in another State. "206 District court
judges in both West Virginia and Kansas have upheld this legisla-
tion in the wake of Lopez, 2 07 while a federal judge in Arizona has
struck down the statute.2os
Despite this division, powerful arguments support Congress's
authority to enact the Child Support Recovery Act. The statute
regulates an "economic activity,"209 by enforcing an "obligation to
transfer funds from one state to another."210 The Act also contains
an explicit interstate nexus: federal law applies only if the delin-
quent parent and affected child reside in different states. This link,
requiring a current debt that crosses ·state lines, is much stronger
than the jurisdictional elements contained in other contested
laws.211
In adopting the Child Support Recovery Act, moreover, Con-
gress expressly found that the states have had difficulty enforcing
support obligations across state lines.212 The failure to collect these
obligations has contributed significantly to child poverty and has
expanded the federal government's own obligations to support sin-
gle parents and their dependent children.21 3 These findings demon-
strate an urgent national problem that can be addressed effectively
only through federal action.
205. Pub. L. No. 102-521, 106 Stat. 3403 (codified in scattered sections of 18 U.S.C. and
42 U.S.C.).
206. 18 u.s.c. § 228 (1994).
207. See United States v. Murphy, 893 F. Supp. 614 (W.D. W. Va. 1995); United States v.
Hampshire, 892 F. Supp. 1327 (D. Kan. 1995).
208. See United States v. Mussari, 894 F. Supp. 1360 (D. Ariz. 1995); United States v.
Schroeder, 894 F. Supp. 360 (D. Ariz. 1995). Judge Rosenblatt authored both of these deci-
sions; except for the background facts, the two opinions are identical. For simplicity, I cite
below only to Mussari.
209. See United States v. Lopez, 115 S. Ct. 1624, 1630 (1995).
210. Murphy, 893 F. Supp. at 616.
211. See, e.g., supra notes 181-82 and accompanying text (Ban on firearm possession by
felons only requires proof that the gun crossed state lines at some point in the past.); note 198
and accompanying text (Carjacking statute applies if carjacked vehicle crossed state lines at
any point before the carjacking.).
212. See H.R. Rep. No. 771, 102d Cong., 2d Sess. 5 (1992).
213. Id; see also United States v. Hampshire, 892 F. Supp. 1327, 1329-30 (D. Kan. 1995).
One of the courts upholding the Child Support Recovery Act,

finally, has pointed out that the Act is analogous to a federal statute
punishing individuals who flee a state to avoid prosecution.214 Both
statutes are necessary to prevent individuals from "taking advan-
tage of our federal system of government through flight to another
state."215 In that sense, the Child Support Recovery Act reinforces
state authority - by enforcing state-imposed obligations - rather
than undermining that authority.
Judge Rosenblatt, the one district judge to invalidate the Child
Support Recovery Act, rested his decision on the conviction that
both "criminal law and child custody are traditionally delegated to
the States for regulation."216 Rosenblatt also contended that the
Child Support Recovery Act "has nothing to do with 'commerce' or
any sort of economic enterprise,"217 despite the Act's application to
monetary transactions. Rosenblatt, finally, believed that federal
civil legislation would be sufficient to address any difficulties in en-
forcing child support obligations and that the statute's interstate
nexus was insufficient because it was "not tailored to address only
those parents who specifically flee from a state in order to avoid
paying child support."218
Despite Judge Rosenblatt's extensive analysis, his arguments are
not persuasive. The Lopez dissenters, as well as most of the Lopez
majority, undoubtedly would characterize an interstate monetary
obligation as an "economic activity" within the core area of con-
gressional authority. The fact that the debt arises in an area tradi-
tionally dominated by the states does not undercut this finding. In
Lopez itself, the majority made clear that "Congress has authority
under the Commerce Clause to regulate numerous commercial ac-
tivities that substantially affect interstate commerce and also affect
214. See Murphy, 893 F. Supp. at 616 (discussing 18 U.S.C. § 1073 (1994)).
215. 893 F. Supp. at 616.
216. United States v. Mussari, 894 F. Supp. 1360, 1367 (D. Ariz. 1995). Judge Rosenblatt
buttressed this argument by noting that some states punish criminally the failure to pay child
support, while others specifically reject that approach. For that reason, he believed that a
uniform federal law imposing criminal sanctions would "usurp the authority" of states in an
area traditionally subject to state regulation.
217. 894 F. Supp. a~ 1363 (quoting United States v. Lopez 115 S. a. 1624, 1630-31
(1995)).
218. 894 F. Supp. at 1364. The Supreme Court has not required Congress to regulate with
such precision under the Commerce Clause. In United States v. Perez, 402 U.S. 146 (1971),
for example, the Court held that Congress could regulate purely local acts of loan sharking
because some of those acts contributed to organized crime. The Government did not have to
show that a particular transaction was tied to organized crime.
[areas traditionally regulated by the states]."219 The economic na-

ture of a parent's failure to pay child support, together with the
other considerations noted above, sustain the constitutionality of
the Child Support Recovery Act after Lopez.
7. Freedom of Access Act
The Freedom of Access to Clinic Entrances Act of 1994220 im-
poses civil and criminal penalties on any person who "by force or
threat of force or by physical obstruction, intentionally injures, in-
timidates or interferes with ... any person ... in order to intimidate
such person or any other person ... from[ ] obtaining or providing
reproductive health services."221 Before Lopez, the lower courts
split over congressional power to enact this statute, with the Fourth
Circuit and four district courts upholding the Act, while one other
district court struck the Act down as outside Congress's Commerce
Clause power.222 Since the Supreme Court's Lopez decision, three
more courts have addressed the constitutionality of the Access Act,
and all three have sustained the Act.223
All three of these most recent decisions, including a decision by
the Eleventh Circuit Court of Appeals, find that the Access Act
"regulate[s] commercial activity"224 and targets violence with "com-
219. Lopez, 115 S. Ct. at 1633 (discussing regulation touching education); see also United
States v. Hampshire, 892 F. Supp. 1327, 1330 (D. Kan. 1995) ("The Court's opinion [in
Lopez] cannot be read to suggest that all federal legislation touching upon domestic relations
is necessarily invalid.").
220. 18 u.s.c. § 248 (1994).
221. 18 U.S.C. § 248(a)(1) (1994). The Act also prohibits attempted interference with
access to a reproductive health service; intimidation of or interference with a person who has
obtained reproductive health services; and intentional damage or destruction of the property
of a reproductive health services facility. See 18 U.S.C. § 248 (1994). The same types of
interferences, finally, are prohibited when exercised against places of religious worship. See
18 u.s.c. § 247 (1994).
222. Compare American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995) (uphold·
ing the Act) and United States v. Dinwiddie, 885 F. Supp. 1286 (W.D. Mo. 1995) (same) and
Riely v. Reno, 860 F. Supp. 693 (D. Ariz. 1994) (same) and Cook v. Reno, 859 F. Supp. 1008
(W.D. La. 1994) (same) and Council for Life Coalition v. Reno, 856 F. Supp. 1422 {S.D. Cal.
1994) (same) with United States v. Wilson, 880 F. Supp. 621 (E.D. Wis. 1995) (holding the
Access Act unconstitutional). This article examines only constitutional challenges to the Ac-
cess Act based on the Commerce Clause or Tenth Amendment. Defendants have challenged
the Act on First Amendment, vagueness, and other constitutional grounds, but those chal-
lenges are all beyond the scope of this article.
223. See Cheffer v. Reno, 55 F.3d 1517, 1520-21 {11th Cir. 1995); United States v. Lucero,
895 F. Supp. 1421 (D. Kan. 1995); United States v. White, 893 F. Supp. 1423, 1432-34 (C.D.
Cal. 1995).
224. See Cheffer, 55 F.3d at 1520; see also White, 893 F. Supp. at 1433. In United States v.
Wilson, 880 F. Supp. 621, 628 (E.D. Wis. 1995), the district court argued that the Access Act
"regulates private conduct affecting commercial entities," rather than the commercial entities
themselves. This argument, however, overlooks Supreme Court precedents upholding the
Hobbs Act. See supra notes 166-71 and accompanying text.
mercial ramifications."225 The Act prevents disruption of commer-

cial health facilities, many of which serve out-of-state patients or
obtain out-of-state supplies. The purchase of medical services
plainly is a commercial transaction.
The Access Act also rests on "extensive legislative findings"
documenting a strong connection between reproductive health
services and interstate commerce.226 These findings include evi-
dence that "[t]he increasing violence surrounding clinics is nation-
wide in focus" and that "existing [state] laws are inadequate to
redress these problems."227 Congress found that "[s]ome jurisdic-
tions have refused to respond at all to clinic violence and block-
ades," while others "have found it difficult if not impossible to
reach across state lines to prosecute the individuals or groups re-
sponsible for planning the actions."228
The Access Act, finally, draws constitutional support from
Supreme Court precedents approving congressional authority to
enact the Hobbs Act. The Hobbs Act, like the Access Act, does
not directly regulate businesses engaged in interstate commerce; in-
stead, it prohibits extortion or robbery interfering with those busi-
nesses.229 Although the Hobbs Act requires the Government to
prove that the criminal act "affect[ed] commerce," courts have
readily concluded that extortion or robbery "affects commerce"
whenever it targets a business purchasing supplies from other
states, serving customers in other states, or otherwise operating in
interstate commerce.230 Multiple Supreme Court and lower court
precedents suggest that Congress has ample authority to punish a
defendant who robs from a health clinic that purchases supplies
out-of-state.231 By the same token, Congress may punish a defend-
225. See White, 893 F. Supp. at 1433; see also Cheffer, 55 F.3d at 1520; Lucero, 895 F.
Supp. at 1423-24.
226. See Cheffer, 55 F.3d at 1520; White, 893 F. Supp. at 1433; Lucero, 895 F. Supp. at
1423-24.
227. White, 893 F. Supp. at 1427 (citing S. REP. No. 103-117, 103d Cong., 1st sess., at 13-
14, 17-21 (1993}); see also 893 F. Supp. at 1433 ("The campaign against abortion clinics, more-
over, was (and is) national.").
228. 893 F. Supp. at 1427; see also Naftali Bendavid, How Much More Can Courts, Pris-
ons Take?: It's Tempting to Federalize Crimes, But Opponents Are Gathering Momentum,
LEGAL TIMES, June 7, 1993, at 1 (Attorney General Reno defends federal prosecution of
abortion clinic blockers because militant blockers are "organized beyond state boundaries,"
and abortion access "involves an important and fundamental constitutional right").
231. E.g., Stirone v. United States, 361 U.S. 212 (1960); United States v. Green, 350 U.S.
415 (1956); see also supra notes 166-71 and accompanying text.
The Supreme Court's recent decision in Allied-Bruce Terminix Cos. v. Dobson, 115 S. Ct.
834 {1995}, discussed infra notes 268-75 and accompanying text, lends further support to the
ant who steals receipts from the clinic by intentionally blocking po-
tential customers from entering the building.232
For all of these reasons, courts are likely to follow the lead of
the Fourth and Eleventh Circuits, as well as the overwhelming ma-
jority of district courts that have considered Congress's power to
punish the obstruction of reproductive health clinics. The Com-
merce Clause grants Congress ample power to punish intentional
obstruction of a business drawing customers and supplies from in-
terstate commerce, especially when Congress makes findings to
document both the impact of that obstruction on commerce and the
special difficulties states have faced in punishing these acts.233
8. Money-Laundering
The federal money-laundering statute prohibits certain "finan-
cial transaction[s]" that "in any way or degree affect[ ] interstate or
foreign commerce."234 In United States v. Grey,23s the Tenth Circuit
held that the Government had failed to prove an effect on interstate
commerce by simply showing that the defendant contributed $200
in cash to feed the pot of a gambling operation at an American
Legion Post. The Government argued that the defendant's cash
transfer affected commerce because no money was coined in his
state; therefore the cash must have crossed state lines before reach-
constitutionality of both the Hobbs and Access Acts. In Terminix, the Supreme Court ruled
that Congress could regulate the terms of a local customer's contract with a business operat-
ing in interstate commerce. If Congress may regulate cooperative interactions between indi-
viduals and interstate businesses, then surely it may regulate disruptive interactions of
individuals with those businesses.
232. The one district court to invalidate the Access Act attempted to distinguish Hobbs
Act precedents by arguing that violators of the Hobbs Act use "violent means to achieve an
economic purpose," while violators of the Access Act use "non-violent means to achieve a
purely political or social purpose." United States v. Wilson, 880 F. Supp. 621, 629 (E.D. Wis.
1995). Congress's power to regulate, however, rests on the effect on interstate commerce,
not on the defendant's motive or means of interference with an interstate business. Prevent-
ing customers from entering the front door of a health clinic has the same economic effect as
robbing supplies out the back door - regardless of the defendant's motive or degree of
violence. See also Green, 350 U.S. at 420 (rejecting the claim that a defendant must be moti-
vated by personal economic gain to violate the Hobbs Act).
The Access Act does not require the Government to prove an effect on commerce in each
case, as the Hobbs Act does. Evidence before Congress, however, fully demonstrated the
interstate connections of reproductive health clinics. Even if a clinic isolated from commerce
could be found, the Access Act's across-the-board protection of health clinics is analogous to
the total prohibition on loansharking upheld in Perez v. United States, 402 U.S. 146 (1971).
233. Congress also invoked the Fourteenth Amendment when enacting the Access Act.
See Pub. L. No. 103-259, § 2, 108 Stat. 694 {1994). If the Act does not survive scrutiny under
the Commerce Clause, courts might tum to this source of authority. Upholding the Act
under the Fourteenth Amendment would be controversial because the Act regulates private
conduct. See United States v. White, 893 F. Supp. 1423, 1434-35 {C.D. Cal. 1995).
234. 18 U.S.C. § 1956(a){1), (c)(4) {1994).
235. 56 F.3d 1219 {lOth Cir. 1995).
ing the defendant's wallet.2 36 The court refused to accept this broad
rationale, holding that the Government must instead trace the dis-
puted cash and show a specific effect on interstate commerce.
Although the court reached this result as a matter of statutory
interpretation, it noted that "we doubt that even Congress could
[punish any cash transaction] without offending the constitution"237
and cited the Supreme Court's decision in Lopez. 238 Like the Fifth
Circuit decision refusing to apply the Hobbs Act to the robbery of a
homeowner,239 the Tenth Circuit's decision in Grey suggests that
courts may begin to read statutory "affecting commerce" require-
ments more narrowly after Lopez.
***
In sum, Lopez has not had much effect on judicial assessments
of Congress's Commerce Clause power. More than three dozen
lower court opinions have considered the constitutionality of multi-
ple federal statutes in the wake of Lopez. Only one district court
decision authored before Lopez and another issued since that opin-
ion have invalidated a federal law as exceeding Congress's com-
merce power. Both of those opinions express distinct minority
views and are likely to be reversed on appeal.
The majority of post-Lopez opinions have proven adept at iden-
tifying the distinguishing features of Lopez and in recognizing the
Gun-Free School Zones Act as an extreme exercise of congres-
sional power. The federal statutes examined so far constitute some
of the more wide-ranging exercises of congressional authority, sug-
gesting that most other laws also will survive scrutiny. Without fur-
ther action from the Supreme Court, it is unlikely that Lopez will
cut a noticeable swath through federal law.
Lopez may have a somewhat stronger impact in encouraging
courts to construe federal laws, particularly criminal laws, more
narrowly. One court has already dismissed an action based on the
money-laundering statute, and another rejected a Hobbs Act prose-
236. See 56 F.3d at 1224. The Government's reasoning was similar to arguments the Gov-
ernment has made successfully in prosecutions of convicted felons for possession of a fire-
arm. In United States v. Cox, 942 F.2d 1282 (8th Cir. 1991), cert. denied, 503 U.S. 921 (1992),
for example, an expert testified that the weapon was manufactured by Colt and that Colt
does not manufacture any weapons in Missouri. The Eighth Circuit held this evidence suffi-
cient to uphold prosecution of a possession that occurred in Missouri. See also United States
v. Washington, 17 F.3d 230,232-33 (8th Cir.) (finding expert testimony that firearm was not
made in Missouri sufficient to uphold conviction for possession in Missouri), cert. denied, 115
s. Ct. 153 (1994).
237. Grey, 56 F.3d at 1226.
238. See 56 F.3d at 1225-26 n.3.
cution based on the Fifth Circuit's Lopez opinion. These results are
not unprecedented; even before Lopez, courts occasionally ruled
crimes too local to satisfy the jurisdictional element of these and
other federallaws. 240 Lopez, however, may encourage courts to be-
come more aggressive in scrutinizing individual cases for a suffi-
cient nexus with interstate commerce.
III. THE FUTURE OF LoPEZ
The unusual combination of factors in Lopez, together with the

opinion's cautious reception in the lower courts, suggest that the
courts will construe Lopez narrowly. Lopez itself does not bode
the reversal of the New Deal, the end of national crime control, or a
significant shift in federal power. What are the chances, however,
that Lopez marks only the first step in a series of decisions signifi-
cantly cutting back congressional power to regulate "Commerce ...
among the several States"? Could Lopez be "a wedge, laying the
groundwork for future attempts to roll back federal civil rights and
social welfare legislation"?241
Justice Thomas enthusiastically concurred in the Lopez decision
and urged the Court to "temper" Congress's commerce power fur-
ther in future cases.242 Justice Thomas even suggested that he
"might be willing to return to the original understanding" of the
Commerce Clause as a narrow grant of congressional power.243 Is
the rest of the Court likely to follow Justice Thomas's lead?
No, Justice Thomas's colleagues already have declined his invi-
tation. The Supreme Court sprinkled its 1994 Term with repeated
240. See, e.g., United States v. Buffey, 899 F2d 1402 (4th Cir. 1990) (finding attempted
extortion did not sufficiently affect interstate commerce because victim would have used per-
sonal assets to respond to the blackmail); United States v. Mattson, 671 F.2d 1020 (7th Cir.
1981) (finding the depletion of the personal assets of an employee was not sufficient to show
an effect on interstate commerce); see also infra note 289 (discussing a recent Ninth Circuit
decision construing the federal arson statute narrowly).
241. Mickenberg, supra note 144, at C12; see also Roger Pilon, It's Not About Guns: The
Court's Lopez Decision Is Really About Limits on Government, WASH. PoST, May 21, 1995,
at C5 ("Could the New Deal be on the ropes not only in the political but in the legal arena as
well? Not yet, but the potential is there."); Judicial Activists, ST. Louis PosT-DISPATCH, July
9, 1995, at 2B (Lopez "struck at the foundation of court rulings dating back to the New Deal"
and cast a "shadow ... over a long-held interpretation of a key part of the Constitution.").
Even Justice Souter remarked dryly in his dissent:
[T]oday's decision may be seen as only a misstep ..• but hardly an epochal case. I would
not argue otherwise, but ... [n]ot every epochal case has come in epochal trappings.
Jones & Laughlin did not reject the direct-indirect standard in so many words; it just said
the relation of the regulated subject matter to commerce was direct enough.••. But we
know what happened.
United States v. Lopez, 115 S. Ct. 1624, 1657 (1995) (Souter, J., dissenting).
242. See 115 S. Ct. at 1642 (Thomas, J., concurring).
243. 115 S. Ct. at 1650 n.8.
clues that the Court does not intend further dramatic cuts in Con-
gress's Commerce Clause power. Indeed, a January 1995 opinion
- which has received surprisingly little attention from either jour-
nalists or scholars of federal-state relations - maintains a generous
construction of the Commerce Clause.244 In this section, I explore
the Supreme Court's many signals about the future of Lopez - in
the Lopez opinions themselves, in two other cases the Court de-
cided on the merits during the 1994 Term, and in several non-
precedential actions. All of these signals suggest that, although
Lopez is an important reminder of the constitutional limits on Con-
gress's power, the decision is unlikely to herald a new era of Com-
merce Clause jurisprudence.
A. Signals from Lopez

Lopez was a sharply divided, five-four decision. Justice Breyer
read portions of his dissent from the bench, evidencing a deep com-
mitment to the ideals expressed there. These facts alone suggest
that, until the Court's membership changes, any extension of Lopez
would face an uphill battle.
Chief Justice Rehnquist's opinion for the majority, moreover,
indicates little inclination to expand Lopez. The majority broadly
endorsed previous cases upholding congressional regulation of eco-
nomic activity, from NLRB v. Jones & Laughlin Steel Corp. 245
through Katzenbach v. McClung246 and Perez v. United States. 247
The Court summarized this portion of its opinion by declaring that
"[w]here economic activity substantially affects interstate com-
merce, legislation regulating that activity will be sustained.''2 48 Jus-
tice Rehnquist also closed his opinion for the majority by
characterizing Lopez as a case in which the Court "decline[d] ... to
proceed any further" in enlarging congressional power, rather than
as a case cutting back previous interpretations of that power.249
Justice Rehnquist may have been overly modest in this characteri-
zation of Lopez, but it is instructive that his opinion strove to show
that sustaining the Gun-Free School Zones Act would have re-
244. See Allied-Bruce Terminix Cos. v. Dobson, 115 S. Ct. 834 (1995), discussed infra
notes 268-75 and accompanying text.
245. 301 u.s. 1 (1937).
246. 379 u.s. 294 (1964).
247. 402 u.s. 146 (1971).
248. United States v. Lopez, 115 S. Ct. 1624, 1630 (1995).
249. 115 S. Ct. at 1634.
quired the Court to move beyond previous interpretations of the

Commerce Clause, rather than simply to apply those precedents.250
Justice Kennedy's concurring opinion, joined by Justice
O'Connor, was even more cautious in endorsing Lopez's result.
Justices Kennedy and O'Connor noted that the history of the Com-
merce Clause "counsels great restraint before the Court determines
that the Clause is insufficient to support an exercise of the national
power" and admitted frankly that this "history [gave them] some
pause about today's decision."251 Justices Kennedy and O'Connor
joined the majority but stressed its "limited holding."252
In joining Lopez, Justices Kennedy and O'Connor also made
clear that they would not question any of the Court's prior deci-
sions upholding commercial regulation - and that they did not
view the majority opinion as undermining any of those prece-
dents.253 These two Justices also stressed the importance of stare
decisis in promoting a stable government structure and empowering
Congress to address a modern, integrated economy.254 "Congress
can regulate in the commercial sphere," Justices Kennedy and
O'Connor concluded, "on the assumption that we have a single
market and a unified purpose to build a stable national econ-
omy."255 Like Justice Rehnquist, they viewed Lopez as portending
no challenge to the Court's long line of post-New Deal commerce
cases.
Even Justice Thomas, who called for a more wide-ranging re-
view of the Court's Commerce Clause jurisprudence, suggested that
he could conduct that review "without totally rejecting our more
recent Commerce Clause jurisprudence."256 Justice Thomas also
admitted that "[c]onsideration of stare decisis and reliance interests
250. See also 115 S. Ct. at 1626-30 (discussing the Court's Commerce Clause precedents
at length).
252. See 115 S. Ct. at 1634.
253. See 115 S. Ct. at 1637 (Heart of Atlanta, McClung, Perez, "and like authorities are
within the fair ambit of the Court's practical conception of commercial regulation and are not
called in question by our decision today.").
254. See 115 S. Ct. at 1637. This reference to stare decisis cannot be taken lightly; the
doctrine has played an important part in the rulings of both Justice Kennedy and Justice
O'Connor. See, e.g., Planned Parenthood v. Casey, 112 S. Ct. 2791,2804 (1992) (opinion of
O'Connor, J., Kennedy, J., and Souter, J.) (explaining the importance of stare decisis in ad-
hering to the Court's ruling in Roe v. Wade, 410 U.S. 113 (1973)).
255. 115 S. Ct. at 1637.
256. 115 S. Ct. at 1642-43 (Thomas, J., concurring); see also 115 S. Ct. at 1650 ("This
extended discussion of the original understanding [of the Commerce Clause] ... does not
necessarily require a wholesale abandonment of our more recent opinions." (footnote
omitted)).
December 1995) Commerce! 731
may convince us that we cannot wipe the slate clean" in construing

the Commerce Clause.257 Justice Thomas undoubtedly would build
upon Lopez, most likely to trim congressional regulation of non-
commercial matters, but even he might not untie the knots of the
New Deal. None of the other Justices in Lopez expressed even the
slightest interest in joining Justice Thomas's reexamination of Com-
merce Clause principles.
B. Other Decisions on the Merits: Termites and Gold Mines

In addition to Lopez, the Supreme Court's 1994 Term included
two cases shedding significant light on the future of federal-state
relations under the Commerce Clause.258 Both of these decisions
confirm that the Court is unlikely to enlarge Lopez and overturn
previous Commerce Clause precedents. Indeed, one of the deci-
sions appears to affirm congressional power in a new context.
1. Gold Mines
One week after its Lopez decision, the Supreme Court issued a
short per curiam opinion in United States v. Robertson. 259 Juan
Robertson had been convicted of violating the Racketeer Influ-
enced and Corrupt Organizations Act (RICO) by investing the pro-
ceeds of illegal drug activities in an Alaskan gold mine. To support
a conviction under RICO, the Government had to show that the
mine was an "enterprise which is engaged in, or the activities of
which affect, interstate or foreign commerce."260
Robertson purchased supplies for the mine in California and
shipped those materials to Alaska. He also hired employees from
257. 115 S. Ct. at 1650 n.8.
258. The Court's landmark decision in United States Term Limits, Inc. v. Thornton, 115
S. Ct. 1842 (1995), holding that states may not set term limits for federal senators and repre-
sentatives, also has important implications for federal-state relations. In particular, the deci-
sion may presage the continued decline of Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528 {1985), in which the Court stated that states should look primarily to
the political process - rather than the courts - to vindicate their sovereignty. In Thornton,
the Court stressed the national character of Congress; the fact that representatives are not
" 'dependent upon, nor controllable by, the states' "; and the Framers' intent to create a
national legislature that was " 'dependent on the people alone,' " rather than " 'too depen-
dent on the State governments.'" 115 S. Ct. at 1853 (quoting JosEPH STORY, CoMMENTA-
RIES ON TiiE CoNSTITUTION OF TiiE UNITED STATES § 627 {5th ed. 1905)); 115 S. Ct. at 1857
(quoting THE FEDERAUST No. 52, at 326 (James Madison) (Clinton Rossiter ed., 1961)).
These assertions appear to undercut, perhaps unintentionally, Garcia's central premise that
"the composition of the Federal Government was designed in large part to protect the
States." 469 U.S. at 550-51. Thornton, however, does not directly affect the Court's con-
struction of the Commerce Clause, and I do not discuss that case further here.
259. 115 S. Ct. 1732 {1995).
260. 18 U.S.C. § 1962(a) {1994).
outside Alaska to work in the mine and personally transported fif-

teen percent of the mine's product out of Alaska. The Supreme
Court held that these activities were sufficient to prove that the
gold mine was "engaged in ... interstate ... commerce" within the
meaning of the statute.261 Thus, the Court did not need to decide
either whether the "affecting . . . commerce" prong of RICO re-
quires the demonstration of a substantial effect or whether the facts
in Robertson would have been sufficient to satisfy a substantial ef-
fect test.262
Technically, Robertson is not a constitutional decision; it con-
strues the language of RICO. Congress, however, plainly drafted
RICO's language to track the Court's Commerce Clause jurispru-
dence, and the Court would not construe the language consciously
to reach conduct falling outside congressional power. The Court's
decision in Robertson, therefore, is equivalent to a ruling that the
Commerce Clause allows Congress to punish the investment of
drug-trafficking proceeds in a business that purchases materials,
hires employees, and exports goods across state lines.263
Robertson confirms that none of the Justices are ready to return
all criminal regulation to the states. The Court issued its decision
unanimously in a short per curiam opinion; even Justice Thomas
was not prepared to question congressional power in this case. On
the other hand, some commentators have gone too far in viewing
Robertson as a retreat from Lopez. 2 64 Robertson was a far different
case from Lopez; the disputed mine had multiple interstate contacts
that formed an integral part of its operations. This was not a case in
which the Court approved federal jurisdiction based upon a single
telephone call or a single case of supplies purchased from out-of-
state.265
261. See 115 S. a. at 1733.

262. See 115 S. a. at 1733.
263. Cf. United States v. Lopez, 2 F.3d 1342, 1347-48 (5th Cir. 1993), affd., 115 S. Ct. 1624
(1995) (observing that when "a commerce nexus is an element of the crime defined by [a
statute], each application of that statute is within the commerce power").
264. See, e.g., Linda Greenhouse, Supreme Court Roundup: Justices Forgo Opportunity to
Expand on Recent Commerce-Clause Ruling in Gun Case, N.Y. TIMES, May 2, 1995, at A13
(In Robertson, the Supreme Court "made a strategic, although perhaps only temporary, re-
treat from the constitutional battle lines it drew" in Lopez; Robertson shows the Court
"pull[ing] back to await further developments in the lower courts."); W. John Moore, A
Landmark Decision? Maybe Not, 27 NAn.. J. 1131, 1131 (1995) (In Robertson, "the Court
sent a clear message that Lopez was no blockbuster.").
265. Cf. United States v. Malatesta, 583 F.2d 748, 754 (5th Cir. 1978) ("[A]ny one" of
several interstate telephone calls was sufficient to satisfy RICO's jurisdictional element.),
affd. en bane, 590 F.2d 1379 (5th Cir.), cerL denied, 444 U.S. 846 (1979).
RICO, moreover, did not purport to regulate all aspects of the

Alaskan gold mine; it punished Robertson's investment in that
mine. Robertson invested money that he had obtained from illegal
drug trafficking, a commercial activity that is part of an extensive
interstate web and that Congress has forbidden in toto.
Robertson's investment itself, finally, crossed state lines; he oper-
ated the Alaskan mine while living in Arizona, made numerous in-
terstate trips to supervise the mine, and even purchased a small
airplane to fly between Arizona and Alaska.2 66 Although the Court
did not focus on these aspects of the case, they should leave no
doubt that Congress had the power to punish Robertson's acts
under the Commerce Clause.267
Robertson, in sum, confirms that the Court does not intend an
imminent, draconian reversal of its Commerce Clause jurispru-
dence with Lopez. The decision is important for that reason but
does not portend more than that.
2. Termites
In the end-of-Term excitement over Lopez, commentators all

but forgot an earlier Commerce Clause ruling that suggests much
more clearly than Robertson that the Court intends no wholesale
restructuring of its Commerce Clause jurisprudence. In Allied-
Bruce Terminix Cos. v. Dobson, 268 the Court held that Congress
intended to reach to the limits of its Commerce Clause power when
it regulated any "contract evidencing a transaction involving com-
merce" under the Federal Arbitration Act.269 After determining
that the phrase "involving commerce" was "the functional
equivalent of 'affecting' [commerce]"27° and that Congress intended
to reach as far as the Commerce Clause permitted in the Arbitra-
tion Act, the Court summarily concluded that the particular trans-
266. See Brief for the United States at 18, United States v. Robertson, 115 S. Ct. 1732
(1995) (No. 94-251).
267. The Court may not have focused on these interstate components of Robertson's
investment or previous drug dealing because RICO requires investment in "an enterprise
which is engaged in, or the activities of which affect, interstate or foreign commerce." 18
U.S.C. § 1962(a) (1994} (emphasis added). Thus, the statute may require some relationship
between the target enterprise and interstate commerce, in addition to any other interstate
contacts in the case. As a constitutional matter, however, Congress surely can prohibit an
investment that requires ongoing, personal supervision across state lines.
268. 115 s. Ct. 834 (1995).
269. 9 u.s.c. § 2 (1994).
270. 115 S. Ct. at 839.
action fell within Congress's power. Indeed, the parties did not
contest that fact.2n
The contract at issue in Terminix was a termite-protection plan
that an Alabama homeowner had bought from the local office of a
multistate termite-control company. Two facts amply connected
the transaction to interstate commerce under pre-Lopez cases: the
termite-control company and its parent both operated in several
states, and the local Terminix office obtained supplies from out-of-
state.272
A Court bent on using Lopez as a springboard for substantial
reversals in Commerce Clause doctrine, however, might have raised
some questions about the connections between this contract and in-
terstate commerce. The contract covered a single Alabama home,
and the Alabama homeowner had purchased the contract from a
local franchisee. Employees of the local franchise stressed to cus-
tomers that they were not dealing with a national organization but
"just dealing with us as local companies."273 At least from the
homeowner's point of view, therefore, the transaction was quite lo-
cal. The Alabama homeowner, moreover, was the party who ob-
jected to the arbitration clause in the contract. The Court thus
approved federal power over a customer- and a homeowner, at
that - who used a business operating in interstate commerce. Pre-
vious cases more readily affirmed congressional power over em-
ployers and employees associated with businesses affecting
interstate commerce or wrongdoers who interfered with those busi-
nesses.274 A Court determined to reconsider Commerce Clause
precedent might have considered distinguishing local customers
from the businesses they patronize.
None of the Justices, however, expressed any concern over Con-
gress's power to regulate customers in such local transactions.2 7S
When federal legislation touches any type of commercial transac-
271. See 115 S. a. at 843.

272. See 115 S. a. at 837.
273. Brief for Respondent at 2, Allied-Bruce Terrninix Cos. v. Dobson, 115 S. a. 834
(1995) (No. 93-1001).
275. Justices Thomas and Scalia dissented from the Court's judgment on the ground that
Congress intended the Federal Arbitration Act to apply only to federal, not state, courts. 115
S. a. at 844-45 (Scalia, J., dissenting); 115 S. a. at 845 (Thomas, J., joined by Scalia, J.,
dissenting). Because this issue made it unnecessary for them to address other issues in the
case, they might not have considered Congress's power to regulate the particular contract in
Terminix. Justice Thomas's eagerness to urge the Lopez Court to broaden its holding, how-
ever, suggests that he might at least have noted his concern if he perceived the exercise of
congressional power in Terminix as too extensive.
tion, the Court appears quite willing to continue upholding broad

exercises of congressional power. Justice Breyer read his Lopez
dissent from the bench, but his less-trumpeted opinion in Terminix
may be more important in demonstrating the limits of the Court's
new Commerce Clause doctrine.
C. Certiorari Denials
When the Supreme Court receives petitions for certiorari in
cases that are related to a case awaiting plenary disposition, the
Court often defers action on the related petitions until after the
fully briefed case has been decided.276 Shortly after the main case
has been decided, the Court will dispose of the "held" petitions by
denying certiorari, by vacating the lower court opinion and remand-
ing for reconsideration in light of the new Supreme Court decision,
or, occasionally, by granting the related petition and setting that
case for full argument.2n
The first two actions do not constitute dispositions on the mer-
its.278 Some courtwatchers, however, have suggested that these ac-
tions contain important, initial clues about how the Court will
construe a new precedent. In particular, the denial of certiorari in a
held case may suggest that the Court sees no inconsistency between
the lower court decision and its new precedent. If the Court per-
276. See RoBERT L. STERN ET AL., SUPREME CouRT I'R.AcnCE 243-44, 249 (7th ed.
1993); William J. Brennan, Jr., The National Court of Appeals: Another Dissent, 40 U. Cm.
L. REv. 473, 477-78 (1973); Arthur D. Hellman, The Supreme Court's Second Thoughts: Re-
mands for Reconsideration and Denials of Review in Cases Held for Plenary Decisions, 11
HASTINGS CONST. L.Q. 5 (1983).
277. See Hellman, supra note 276, at 38-39.
278. See STERN ET AL., supra note 276, at 239, 249; Hellman, supra note 276, at 9-11, 20.
The Supreme Court frequently has declared that denials of certiorari carry no precedential
weight. See, e.g., Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 366 n.1 (1973);
United States v. Carver, 260 U.S. 482, 490 (1923). But see infra note 279 and accompanying
text. The Court has less frequently discussed its practice of vacating lower court decisions
and remanding for reconsideration in light of a new Supreme Court decision. In Henry v.
City of Rock Hill, 376 U.S. 776, 777 (1964), the Court observed that these orders do "not
amount to a final determination on the merits." Instead, the Court explained, the Court may
issue such an order when it is "not certain that the case [is] free from all obstacles to reversal
on [the] intervening precedent." 376 U.S. at 776. The order "indicate[s]" that the Court
finds the intervening precedent "sufficiently analogous and, perhaps, decisive to compel re-
examination of the case." 376 U.S. at 777. As one scholar has pointed out, this language is
somewhat ambiguous. On the one hand, the Court clearly stated that these remand orders
are not decisions on the merits. On the other hand, the observation that the remanded case
is not free from "all" obstacles to reversal suggests that the Court believes that the interven-
ing precedent strongly counsels reversal. See Hellman, supra note 276, at 10; see also Florida
v. Burr, 496 U.S. 914,918 (1990) (Stevens, J., dissenting) ("[A]n order remanding a case to a
lower court does 'not amount to a final decision on the merits,' but only a conclusion that an
intervening decision is sufficiently analogous to make reexamination of the case appropri-
ate." (citation omitted) (quoting Henry, 376 U.S. at 776)).
ceived a possible conflict, it would have the option of vacating the

lower court decision and remanding for reconsideration in light of
the intervening precedent.279
Shortly after deciding Lopez, the Supreme Court denied certio-
rari in four cases that appear to have been held pending that deci-
sion.28o In two of the denied petitions, the lower courts had upheld
the federal carjacking statute against a Commerce Clause attack.2Bl
The Court's denial of certiorari in these two cases, without recorded
dissent, may suggest that the Court does not view the carjacking
statute as vulnerable to constitutional attack after Lopez. At the
very least, the denials suggest that the Court was not eager to push
the boundaries of Lopez.
The Court also denied petitions for certiorari in two cases chal-
lenging Congress's power to punish the arson of private dwell-
279. See Hellman, supra note 276, at 21 (suggesting, based on an empirical study, that
"when the Court denies review rather than issuing a reconsideration order in a case obvi-
ously held pending the announcement of a plenary decision, its action - contrary to the
usual rule - can be deemed to have at least some precedential significance" (footnotes
omitted)).
The Supreme Court itself once attributed some significance to a denial of certiorari under
these circumstances. See United States v. Kras, 409 U.S. 434, 443 (1973) (noting that
"although a denial of certiorari normally carries no implication or inference," a denial over
the "pointed dissents" of two Justices shortly after the decision of a related case "surely [was]
not without some significance as to ••. the Court's attitude"). But see 409 U.S. at 460-61
(Marshall, J., dissenting) (protesting vigorously the attribution of any significance to denials
of certiorari). Some lower courts also have noted the possible significance of certiorari deni-
als in cases that were held pending another decision. See, e.g., Awtry v. United States, 684
F.2d 896, 899 (Ct. Cl. 1982) (" [W]e atta<;h no significance to the denial of certiorari," but "the
temptation to do otherwise is exceptionally great" when the petition was pending while the
Court decided a related case on the merits.); Wells v. Meyer's Bakery, 561 F.2d 1268, 1275
(8th Cir. 1977) (The denial of certiorari four weeks after a related decision "cannot be
overlooked.").
280. The Court also vacated and remanded for reconsideration one case in which the
lower court had upheld a conviction under the Gun-Free School Zones Act. See Edwards v.
United States, 115 S. Ct. 1819 (1995).
The fact that a petition was held pending another decision can only be deduced from the
length of time that the petition remained on the Court's docket and the coincidence of denial
shortly after the decision of a related case. The process of deduction, obviously, is not fool-
proof. See Hellman, supra note 276, at 16 n.48, 21 n.65. It is also difficult to trace criminal
cases in which certiorari has been denied because so many of those cases appear on the
Court's in forma pauperis docket and are not summarized in readily available sources. It is
relatively clear that the four cases discussed in the text were held pending Lopez. It is possi-
ble, however, that the Court held and disposed of additional in forma pauperis petitions after
its Lopez opinion.
281. See Overstreet v. United States, 115 S. Ct. 1970 (1995); Osteen v. United States, 115
S. Ct. 1825 (1995). For further discussion of the carjacking statute, see supra notes 196-204
and accompanying text. Curiously, the Court had denied certiorari in a third case upholding
the carjacking statute shortly before hearing oral arguments in Lopez. See Harris v. United
States, 115 S. Ct. 458 (1994). The Court may have missed the possible link between this case
and Lopez, or an independent ground may have supported the lower court's decision. Cf.
Hellman, supra note 276, at 38 n.127 (noting that the Court occasionally treats petitions in
what appears to be an inconsistent manner, holding one and denying another immediately).
ings.282 Federal law prohibits the arson of "any building, vehicle, or

other real or personal property used in interstate or foreign com-
merce or in any activity affecting interstate or foreign com-
merce."283 Ten years ago, the Supreme Court upheld the
application of this statute to rental property; that decision would fit
comfortably with the Lopez Court's distinction between commer-
cial and noncommercial activities.284
At least one of the cases pending after Lopez, however,
presented a much closer question under the Court's new reading of
the Commerce Clause.285 In Ramey v. United States, the defendants
had been convicted of burning a mobile home in Logan County,
West Virginia.286 The defendants lived near their victims' home;
there was no evidence that they planned the arson in another state
or purchased supplies for the crime outside West Virginia. The ar-
son was not linked either to a larger criminal organization or to a
commercial motive such as the receipt of insurance proceeds. This
was an ugly, but local, crime of racial hatred: the defendants
burned the home of an interracial couple to the ground because
they objected to the interracial marriage. The Fourth Circuit up-
held federal jurisdiction on the tenuous ground that the victims had
purchased electricity from an interstate power grid. Destruction of
their trailer, the court reasoned, "affected" interstate commerce by
reducing slightly the demand for electricity.287
Justice Scalia dissented from the denial of certiorari in both
Ramey and its companion case, calling for the Court to vacate the
282. See Ramey v. United States, 115 S. a. 1838 (1995); Moore v. United States, 115 S.
a. 1838 (1995).
283. 18 u.s.c. § 844(i) (1994).
284. See Russell v. United States, 471 U.S. 858 (1985).
285. The second case, Moore v. United States, more clearly fit the scope of congressional
power recognized in Lopez. The defendants in Moore were hired to burn a private home so
that the owner could claim insurance proceeds. The agreement to burn the house was a
commercial transaction, as was the resulting fraud on the insurance company. The insurance
company was located in another state, an out-of-state bank held a mortgage on the house, the
house was being marketed for sale in several states, and the house was an asset held by the
U.S. Bankruptcy Court in another state. See Moore v. United States, 25 F.3d 1042 (4th Cir.
1994). The arson's effect on interstate commerce, therefore, was sufficiently immediate and
substantial to satisfy Lopez.
286. The facts of the case are recounted in the Court of Appeals' opinion, Ramey v.
United States, 24 F.3d 602 (4th Cir. 1994).
287. See 24 F.3d at 607. The Government's alternative argument in Ramey was that the
victims' mobile home had moved previously in interstate commerce. The court declined to
decide whether this previous movement would be sufficient to sustain federal regulation,
noting that the trailer had been stationary in West Virginia for 16 years. See 24 F.3d at 607
n.7. Some of the Supreme Court Justices conceivably concluded that this prior movement of
the home was sufficient to link the crime to interstate commerce. Once again, however, this
conclusion would suggest an aversion to expanding Lopez.
judgments and remand the cases for further consideration in light of

Lopez. Scalia's proposal was plausible; the slender link to inter-
state commerce in Ramey at least raised questions after the Court's
Lopez decision. No other Justice, however, joined Scalia in publicly
calling for the Court to vacate and remand these cases.
An activist Court, either reading Lopez broadly or anxious to
narrow the Commerce Clause further, easily could have remanded
these four cases for further consideration. Indeed, if Lopez cast
any significant doubt on the constitutionality of the carjacking stat-
ute or the contested applications of the arson statute, fairness to the
individual criminal defendants would have called for a remand.2ss
Circumstances peculiar to these cases might explain the Court's de-
cision to deny certiorari rather than to remand the cases for recon-
sideration in light of Lopez. A majority of the Justices might still
hold the carjacking statute unconstitutional or prune the scope of
the arson statute.2s9 The denial of these petitions, however, sug-
gests that the Court was content to retreat from the Commerce
Clause once Lopez had been decided.
IV. LoPEZ REFINED: DRAWING CoNSTITUTIONAL LINES WITH

Fuzzy LoGic
I have argued that Lopez is a limited decision, resting on multi-
ple distinguishing features, and that the Supreme Court is unlikely
288. The desire to treat litigants equally and not deprive a litigant of the benefit of a new
legal rule because of an accident of timing is one of the justifications for the Court's practice
of holding related certiorari petitions. Otherwise, litigants might be caught in a twilight zone:
if their case had moved more slowly through the lower courts, they would have benefited
from the Court's new rule. If their case had moved more rapidly, their petition might have
been the one selected for review. See Hellman, supra note 276, at 31 & n.100.
289. While this article was being edited, the Ninth Circuit refused to apply the arson
statute under circumstances quite similar to those in Ramey. See United States v. Pappado·
poulos, 64 F.3d 522 (9th Cir. 1995). The defendant in Pappadopou/os conspired with two
others to bum her residence and fraudulently collect the insurance proceeds. The Govern-
ment's only evidence that the burned residence was "used in interstate or foreign commerce"
was proof that the home had consumed natural gas from out-of-state sources. See 64 F.3d at
524. The Ninth Circuit held that this commerce link was too tenuous to withstand scrutiny
after Lopez. In reaching this result, the court neither cited Ramey nor discussed the Supreme
Court's nonprecedential denial of certiorari in that case.
The Ninth Circuit's decision in Pappadopou/os is similar to lower court opinions constru-
ing the Hobbs Act and federal money laundering statutes, see supra notes 172-79, 234-39 and
accompanying text. The Ninth Circuit did not hold the federal arson statute unconstitutional;
it narrowed slightly the jurisdictional element in that statute. The decision is a plausible one
after Lopez, as the Seventh Circuit has also realized. See United States v. Martin, 63 F.3d
1422 (7th Cir. 1995) (Lopez may cast doubt on prior decisions applying the Arson Act to the
burning of residential buildings with no interstate connection other than the consumption of
power from out-of-state sources. {dictum)). The very plausibility of the result makes the
Supreme Court's denial of certiorari in Ramey all the more remarkable. Although the Court
ultimately may agree with the Ninth Circuit in Pappadopou/os, the Court's action in Ramey
suggests that it was not eager to encourage even relatively restrained applications of Lopez.
to expand the Lopez ruling significantly. To understand Lopez, it is

essential to capture the opinion's many nuances. There is no single
"key" to Lopez, although certain facets of the case may have been
more important than others to the majority.
Fuzzy logic~ a contemporary theory of mathematical sets, offers
a promising avenue for describing a multifaceted decision like
Lopez. The principles of fuzzy logic allow computer scientists to
model decisions based on the complex interaction of multiple fac-
tors, as well as to account for variability in each of those factors.
Fuzzy logic masters both complexity and uncertainty in a manner
that produces finely tuned results. Working with fuzzy logic, engi-
neers have produced subway trains that glide smoothly to a stop
within seven centimeters of their target, cameras that automatically
compensate for jitter in the hand that holds them, and computer-
ized databases that diagnose medical ailments in thousands of
patients.290
Fuzzy logic suggests that the uncertain, fuzzy factors of constitu-
tional cases like Lopez also can be tamed to yield well-defined re-
sults. In this final section, I explain the fundamentals of fuzzy logic
and then build a "fuzzy" model of Lopez. 291 This model is quite
similar to the traditional doctrinal analysis offered above. Indeed,
one of the advantages of drawing upon fuzzy logic is that it ampli-
fies important features of conventional legal thinking. Restating
Lopez with fuzzy logic, however, stresses the importance of context
in that decision and helps define the boundaries of the Court's new
rule.292
A. The New Mathematics of Fuzzy Logic

Conventional logic divides the world into crisp classes. This
animal either is a bird or it is not a bird. That person either is bald
290. See DANIEL McNEILL & PAUL FREmERGER, Fuzzy Loorc 156 (1993); Bart Kosko
& Satoru Isaka, Fuzzy Logic, SCI. AM., July 1993, at 76, 78-80. The subway driven by fuzzy
logic is three times more precise in stopping than a subway driven by a human operator and
cuts energy costs by 10%. See McNEILL & FREmERGER, supra, at 156.
291. My discussion of fuzzy logic draws upon BART KosKo, Fuzzy THINKING: THE NEw
SCIENCE OF Fuzzy Loorc (1993); McNEILL & FREmERGER, supra note 290; and Kosko &
Isaka, supra note 290. All three sources provide an excellent introduction to fuzzy logic. For
those interested in reading the scholarly paper that is credited with starting the fuzzy revolu-
tion, see L.A. Zadeh, Fuzzy Sets, 8 INFo. & CoNTRoL 338 (1965).
292. The ability to explain the location of a constitutional line is different from the textual
or policy considerations motivating the choice of one line over another. Fuzzy logic can help
describe where Lopez's constitutional boundary lies, but mathematical principles cannot
choose between competing theories of the Commerce Clause. Judges still must decide which
actions are "commerce" and which are not. Indeed, fuzzy logic helps illuminate this distinc-
tion. See infra notes 304-06 and accompanying text.
or is not bald. Conventional logic also depends on the law of the

excluded middle: an object cannot belong both to a set and the
set's complement. This feathered creature cannot be both a bird
and not a bird. That woman cannot be both bald and hairy. 2 93
Fuzzy logic recognizes that most sets do not have clearly marked
boundaries. Many objects belong partly to a class and partly to its
complement; sets are composed of objects that belong to the set to
different degrees. A robin is more of a bird than an ostrich, an
ostrich is more of a bird than a chicken, and all of these are more of
a bird than a bat.2 94 Men and women with receding hairlines are a
little bit bald; women and men with half a bare scalp are partly
bald; men and women ·with a few patches of hair are mostly bald;
and Michael Jordan and Sinead O'Connor are completely bald.
Psychologists have confirmed that these fuzzy classifications
correspond to human thought processes. When psychologist
Eleanor Rosch asked students to rate how well particular words
typified categories like "science " "vehicle " or "bird " the students
had no difficulty responding to' her directions.
' '
2 9s They also dis-
played remarkable consensus on the rankings of words within each
category. All 113 of Rosch's subjects thought that chemistry was
more of a science than botany, that a car was more of a vehicle than
a scooter, and that murder was more of a crime than stealing.2 96 It
also made sense to the students to say that a robin is a better bird
than a chicken; that an apple is more of a fruit than an olive; and
that a carrot is more vegetable-like than parsley or a pickle.297
293. The law of the excluded middle produces a number of well-known paradoxes in
traditional logic. Falakros, for example, proposed this paradox: "Pluck a hair from a normal
man's head and he does not suddenly become bald. Pull out another, and a third, and a
fourth, and he still isn't bald. Keep plucking and eventually the wincing man will have no
hairs at all on his head, yet he isn't bald." McNEILL & FREIBERGER, supra note 290, at 27.
294. This example derives from a test psychologist Eleanor Rosch ran with college stu-
dents in 1973. The test is described further below. See also McNEILL & FREIBERGER, supra
note 290, at 84-85.
295. See Eleanor H. Rosch, On the Internal Structure of Perceptual and Semantic Catego-
ries, in COGNmVE DEVELOPMENT AND TilE ACOUISmON OF LANGUAGE 111 (Timothy E.
Moore ed., 1973), discussed in McNEILL & FREIBERGER, supra note 290, at 84-85.
296. Id.
297. Id. Gregg Oden conducted further experiments demonstrating the natural ability of
people to reason with fuzzy categories. Oden, for example, gave subjects pairs of statements
like "A chair is furniture" and "An ostrich is a bird." He then asked the subjects which
sentence was more true than the other, and how much more true it was. He thus showed, not
only that people think in fuzzy categories but that they are capable of manipulating those
categories by making statements like: "A chair is twice as much furniture as an ostrich is a
bird." See Gregg Oden, Fuzziness in Semantic Memory: Choosing Exemplars of Subjective
Categories, 5 MEMORY & CoGNmON 198 (1977); see also McNEILL & FREIBERGER, supra
note 290, at 91.
Fuzzy logic quantifies this natural thought process by ascribing

numerical values to set membership: a chair is .9 furniture, mean-
ing that it belongs very strongly to the category of furniture, while a
filing cabinet might be only .5 furniture (somewhat furniture) and a
bathtub might be only .3 furniture (a little bit furniture). Each of
these pieces of "furniture" also belongs partly to the set of "not
furniture." A chair is very slightly (.1) not furniture; a filing cabinet
is somewhat (.5) not furniture; and a bathtub is mostly (.7) not fur-
niture.298 In fuzzy logic, the excluded middle disappears.
Fuzzy categories may be combined into fuzzy rules, and fuzzy
rules can be joined to describe decisionmaking processes. These
fuzzy algorithms are particularly apt at describing expert judg-
ments, which may rely upon hundreds of simultaneous compari-
sons. A subway driver attempting to bring her train to a smooth
stop at the station, for example, might apply a series of fuzzy rules
like: (1) The closer I am to the station, the harder I should apply
the brakes; (2) the more the track slopes down to the station, the
harder I should apply the brakes; (3) the more the track slopes up
to the station, the lighter I should apply the brakes; and (4) the
wetter the track, the more I should pump the brakes.299 In practice,
the expert applies these rules rapidly and without articulating them;
an experienced driver knows just how much to apply the brake
under different circumstances. Articulating the rules through fuzzy
logic illuminates the decisionmaking process and also allows
computer-driven machines to reproduce that process.3oo
298. These examples derive from experiments conducted by Gary Oden. See Oden,
supra note 297. Oden used his results to calculate the degree to which subjects believed each
of these items belonged to the category of "furniture." He obtained values of .960 for chair,
.114 for filing cabinet, and .032 for bathtub, as well as .119 for picture, .091 for mirror, .053 for
refrigerator, and .030 for carseat See id. at 201. I have simplified his numbers, while main-
taining the rank orders he found.
299. This example is based loosely on some of the problems encountered in designing the
computerized subway system in Sendai, Japan. See Kosko & Isaka, supra note 290, at 78-79.
300. To accommodate the electrical pathways of a computer, fuzzy logic would state these
rules somewhat differently when programming a machine. Programmers first would establish
a series of more absolute rules such as: {1) If I am at the station, then press the brakes very
hard; (2) If I am very close to the station, then press the brakes moderately hard; {3) If I am
somewhat close to the station, then press the brakes a little bit hard; (4) If I am a little bit
distant from the station, then press the brakes lightly; and {5) If I am moderately distant from
the station, then press the brakes very lightly. System designers then would quantify each of
the fuzzy terms in these rules with overlapping numerical ranges. "At the station," for exam-
ple, might be defined as from 0 to 10 feet away from the station. "Very close to the station"
might be defined as from 5 to 50 feet from the station, and "somewhat close to the station"
might be defined as from 30 to 100 feet from the station. Depending on the exact position of
a train, each of these rules would activate to a different degree. A train that was 9 feet from
the station, for example, would be partly "at the station" and partly "very close to the sta-
tion." Each of the rules governing those positions would fire to the appropriate degree, pro-
ducing a braking pressure between "very hard" and "moderately hard." See generally,
The subway driver's judgment could also be expressed in a se-

ries of conventional yes-no rules, but the number of rules would be
overwhelming. The first of these rules might read: "If I am 200 feet
from the station, the track slopes down fifteen degrees toward the
station, and the rails are completely dry, then depress the brakes
one-eighth of an inch and hold them steady at that point."301 To
express the subway driver's judgment through a series of yes-no
rules, a different rule would be necessary for each permutation of
feet from the station, degree of track slope, and amount of water on
the rails. Computerized systems based on conventional yes-no logic
have proven both cumbersome and stiff. The number of program-
med rules is unwieldy, and seams between the rules produce notice-
able jerks or jumps - just as a car powered by conventional cruise
control shifts noticeably from one engine speed to another as the
car climbs a hill.
Both fuzzy rules and yes-no rules link an action to a condition,
but fuzzy rules state both the action and condition as matters of
degree. Yes-no rules, on the other hand, create strict categories
that must be satisfied for the rule to apply. This simple shift, from
yes-no rules to fuzzy ones, has produced both revolutionary con-
sumer products and a more accurate model for human decision-
making. The same shift illuminates traditional paths of
constitutional interpretation.
B. The Fuzzy Logic of Interstate Commerce

Interstate commerce, like birds and baldness, is not a crisp set.
A ferry crossing the Hudson River from New Jersey to New York is
very much interstate commerce; a strike in Pittsburgh that halts
KosKo, supra note 291, at 156-76 (describing this process in greater detail, as applied to the
regulator for an air conditioner).
In adapting fuzzy logic to legal thinking, I have by-stepped these steps because people can
reason directly with statements like "the closer I am to the station, the harder I should press
the brake." The process used to power machines, however, may provide a useful analogy in
areas in which the courts traditionally have used a series of rigid categories. In construing the
Equal Protection Clause, for example, the Supreme Court has applied three types of scrutiny
to three types of rigidly defined classes. Pursuing the fuzzy logic analogy, we should consider
whether some classifications fall partly in two or more categories - and should benefit from
some combination of the scrutiny afforded those categories. The result would be similar to
the 'sliding scale' of scrutiny proposed 25 years ago by Justice Marshall, see San Antonio Sch.
Dist. v. Rodriguez, 411 U.S. 1, 98-110 (1973) (Marshall, J., dissenting); Dandridge v.
Williams, 397 U.S. 471, 519-21 (1970) (Marshall, J., dissenting), but might illuminate that
approach more clearly. I leave further development of these ideas to another day.
301. This type of rule is a "yes-no" rule because the rule either applies or it does not. If
the position of the train and condition of the track satisfy the premises of the rule, then the
outcome applies. If any of the conditions vary from the rule's premises, then the rule does
not apply, and the operator must consult another rule.
steel shipments to several other states is somewhat interstate com-

merce; and a fan;ner's decision to consume his wheat on the farm
rather than sell it is a little bit interstate commerce.302 In the every-
day, nonlegal world around us, activities do not fall into sharply
defined sets of interstate commerce and noninterstate commerce.303
Judicial dispositions, on the other hand, must be crisp. At the
end of a judicial opinion, the challenged conduct either is interstate
commerce or it is not interstate commerce. The Court's challenge
is to sort a fuzzy set of everyday activities into two watertight con-
stitutional compartments: "Commerce . . . among the several
States" and all other conduct.
The first lesson of fuzzy logic is that the Court must choose this
boundary; it cannot simply discover a well-defined class of activities
called "interstate commerce" in the outside world.304 Instead, the
302. Focusing on the words "interstate commerce" in these examples is somewhat artifi-
cial because Congress's power under the Commerce Clause depends upon the meaning of the
word "regulate" and the meaning of the Necessary and Proper Clause, U.S. CoNsT. art. I,§ 8,
cl. 18 (Congress shall have power "To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers."), as well as on the meaning of the words
"Commerce •.. among the several States." I have followed the convention of most judges
and scholars in collapsing all of these sources into a single reference to "interstate
commerce."
Once all of these powers are considered, it is possible to see why the strike and decision
to withhold wheat from the market are at least somewhat "interstate commerce." The power
to "regulate" interstate commerce includes the power to promote interstate commerce, and
Congress might reasonably decide that strikes and restless labor conditions reduce the inter-
state flow of goods. Similarly, Congress has the power to set prices for interstate wheat sales;
those sales indisputably constitute "interstate commerce." In an integrated market, however,
Congress can only maintain those interstate price supports by fixing prices of intrastate sales
and controlling goods withheld from the market; under these circumstances, the Necessary
and Proper Clause makes the latter decision at least a little bit "interstate commerce."
Recognizing that these activities are somewhat cpmmerce-like does not mean that the
Court must include them within Congress's power to regulate interstate commerce. To en-
force the federal-state balance built into the Constitution, the Court might decide that the
Commerce Clause demands a high degree of commerce-likeness to support congressional
regulation. The Court, however, cannot reach that result simply by denying all co~ection
between these activities and interstate commerce.
303. Some scholars argue that the words "Commerce ... among the several States" imply
a narrow, well-defined category of activities. Richard Epstein, for example, suggests that
"commerce" means "shipping and navigation, and the contracts regulating buying and sell-
ing." Epstein, supra note 67, at 1394. Further examination of Epstein's argument, however,
reveals that he rejects broader definitions of interstate commerce because they would conflict
with the Tenth Amendment or structural assumptions of federalism in the Constitution. His
argument does not rest on the simple assertion that "commerce" is a sharply defined set of
activities. Epstein's final definition of interstate commerce, moreover, is distinctly fuzzy:
"interstate transportation, navigation and sales, and the activities closely incident to them."
Id. at 1454 (emphasis added).
304. Fuzzy logic alone does not prove that interstate commerce is a fuzzy set; that conclu-
sion about interstate commerce is an empirical judgment. The principles of fuzzy logic, how-
ever, help to express what we notice in the world around us and from reading the Supreme
Court's commerce cases - that some things are more like interstate commerce than others
but that there is no a priori line separating interstate commerce from other conduct.
Justices must decide what degree of "commerce-likeness" will sat-

isfy the constitutional definition of interstate commerce.3os That
decision may be influenced by the Constitution's text or structure,
the history of our government, or any other source that the Justices
feel authorized to consult.3D6 The concept of "commerce" alone
will not produce a sharply defined set of activities for congressional
regulation.
The Supreme Court itself has recognized the fuzziness of inter-
state commerce. In 1937, the Court admitted that the definition of
interstate commerce "is necessarily one of degree,"3D7 and the ma-
jority confirmed that observation in Lopez. 308 The Court, however,
has always seemed apologetic about this inability to identify a sin-
gle, crisp definition of interstate commerce. Fuzzy logic teaches
that there is no shame in complexity. Admitting the fuzziness of
interstate commerce and the need for the Court to choose a level of
commerce-likeness that will support congressional power is more
productive than engaging in a fruitless quest for a closed set of ac-
tivities defined as "interstate commerce."
More important, fuzzy logic demonstrates that it is possible to
work logically with imprecise categories. The fact that interstate
305. Critics of judicial review may argue that it is inappropriate for the Court, rather than
an elected legislature, to decide this question. When enforcing the Commerce Clause, how-
ever, the Court does not dispute the legitimacy of social or economic ends - as it did under
the discredited line of due process cases originating with Lochner v. New York, 198 U.S. 45
(1905). Instead, the Court is enforcing a division of power between Congress and the state
governments. Common sense suggests that policing this boundary should not be left to one
of the interested parties. The scholarly and judicial debate over the appropriateness of judi-
cial review in Commerce Clause cases, however, is long-standing and spirited. See supra note
71. Fuzzy logic does not change the terms of that debate; it merely clarifies that courts inevi-
tably assume an active role when enforcing the Commerce Clause because they must choose
an appropriate level of commerce-likeness rather than passively applying one that is pre-
ordained by a clear definition of "interstate commerce."
306. A vast literature exists on the legitimate sources of constitutional interpretation, and
that debate is well beyond the scope of this article. Fuzzy logic does not determine what
sources the Court may consult; it merely clarifies that the Court is unlikely to find a sharply
bounded category of activities corresponding with the constitutional text. Some additional
sources of authority, therefore, will be necessary.
307. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937); see also Wickard v.
Filburn, 317 U.S. 111, 123 n.24 (1942) ("[T]he criterion necessarily is one of degree and must
be so defined. This does not satisfy those who seek for mathematical or rigid formulas.").
308. United States v. Lopez, 115 S. a. 1624, 1633-34 (1995); see also 115 S. a. at 1637
(Kennedy, J., concurring); 115 S. a. at 1657 (Breyer, J., dissenting) ("(T]he question of de-
gree (how much effect) requires an estimate of the 'size' of the effect that no verbal formula-
tion can capture with precision."). Members of both the Lopez majority and dissent also
used comparative terms to describe some activities as "more like" interstate commerce than
others. See, e.g., 115 S. a. at 1636 (Kennedy, J., concurring) ("Even the most confined inter-
pretation of 'commerce' would embrace transportation between the States."); 115 S. Ct. at
1656 (Souter, J., dissenting) ("A challenge to congressional regulation of interstate garbage
hauling would be easy to resolve; review of congressional regulation of gun possession in
school yards is more difficult.").
commerce is fuzzy does not mean that the Court will render illogi-
cal, woolly headed opinions about interstate commerce. On the
contrary, fuzzy categories and fuzzy rules can lead to very precise
results - like a computerized subway that stops within centimeters
of its target.
Fuzzy logic might frame the issues in Lopez like this: How
much is gun possession in a school zone like interstate commerce?
And, how much like interstate commerce must an ·action be for
Congress to regulate it? Stating the issues this way helps illuminate
the Court's reasoning on both scores. Supreme Court opinions, for
example, reveal at least five factors that have influenced the Court's
answer to the second question. Since the New Deal, the Court has
acknowledged that elected legislators, rather than appointed
judges, should set economic and social goals in a democratic soci-
ety. Congress is also more knowledgeable than the Court about the
economic effects of legislation. A complex modem economy,
moreover, requires national solutions to many problems. These
three factors have pushed the Court to set the judicially enforceable
level of commerce-likeness quite low. On the other hand, the
Court has recognized that the text of the Commerce Clause implies
that some activities are not interstate commerce. The Court has
also decided that the structure of our federal system requires a level
of commerce-likeness that is not so low that it "would effectually
obliterate the distinction between what is national and what is local
and create a completely centralized govemment." 309 These two fac-
tors argue that the level of commerce-likeness should not be trivial
and certainly should not be zero.
Fuzzy logicians would attach weights to these five forces and
then find their fuzzy weighted average. The resulting average
would represent a precise level of commerce-likeness accommodat-
ing these countervailing forces. The Supreme Court cannot express
its decision in such quantitative terms, but fuzzy logic still underlies
its reasoning process and illuminates its result. The fuzzy logic
model, for example, explains that the Court chose a higher level of
commerce-likeness in Lopez than some recent cases had suggested
because it feared that the Commerce Clause had expanded to en-
compass all human activity. The last two forces identified above
deserved some weight, the Court concluded, so it raised the re-
quired level of commerce-likeness above zero.
309. Jones & Laughlin Steel Corp., 301 U.S. at 37.

The analogy to fuzzy logic, moreover, suggests that the current

level of commerce-likeness demanded by the Commerce Clause
may be quite specific - even though words cannot express that
specificity. The Supreme Court can only say that the Constitution
requires a "substantial effect" on interstate commerce for Congress
to act, which may be the same as saying that Congress may regulate
things that have a· "low" level of commerce-likeness but not things
with a "very low" level of commerce-likeness. The fuzziness of
these words may mask a very precise point at which the Court
would allow congressional regulation - just as we know that there
is a particular level of braking pressure that will bring the car to a
smooth stop at a red light but can only tell a new driver to apply the
brake "lightly" and then yell "more" or "less" until the neophyte
gets it right.
The Supreme Court, however, did not merely announce a result
in Lopez; it explained why gun-free school zones, as regulated by
the Gun-Free School Zones Act, were not sufficiently commerce-
like to support congressional regulation. Fuzzy logic can help us
organize those reasons by stating as a series of fuzzy rules both the
Court's express reasons and the contextual factors that might have
influenced its decision. Lopez tells us to measure how commerce-
like an activity is by applying these rules:
{1) The more an activity is like commercial or economic conduct, the
more likely it is to be interstate commerce.
{2) The less clearly Congress's statute provides a jurisdictional ele-
ment, the less likely the regulated activity is to be interstate
commerce.310
{3) The less explicitly Congress makes findings tying the regulated
activity to interstate commerce, the less likely the activity is to be in-
terstate commerce.
(4) The more an activity is like education or another area tradition-
ally regulated by the states, the less likely it is to be interstate
commerce.
(5) The more an activity is linked to cherished notions of private
property, the less likely it is to be interstate commerce.
(6) The more an activity falls within an area in which national regula-
tion is necessary, the more likely it is to be interstate commerce.
310. At first glance, a "jurisdictional element" might seem to be an exception to the prop·
osition that all sets are fuzzy. Surely a statute either has a jurisdictional element or it does
not have one. Jurisdictional elements, however, come in many guises. Some statutes require
the government to prove a particular link to interstate commerce, such as that a gun moved
across state lines or that a defendant placed an interstate phone call. Other statutes simply
empower the government to regulate any activity "substantially affecting interstate com·
merce." Stating the jurisdictional element rule as a fuzzy one allows for the possibility that
the Court will decide in a future case that the type of jurisdictional element affects its
decision.
(7) The more likely it is that competition among the states will pro-
vide the desired regulatory end, the less likely it is that the regulated
activity is interstate commerce.
(8) The more an activity resembles a crime punished under state law,
the less likely it is to be interstate commerce.
(9) The more an activity is linked to the workplace, particularly to
the conduct of employers or employees, the more likely it is to be
interstate commerce.
(10) The more likely it is that regulation of this activity would allow
congressional regulation of all conduct, the less likely this activity is to
be interstate commerce.
Future decisions will refine these rules, discarding some princi-
ples and adding others. The Supreme Court, for example, might
reject my rule about workplaces, finding that criterion irrelevant to
how much an activity is like interstate commerce. The Court might
also indicate that some of these rules have more weight than others
in determining the commerce-likeness of regulated conduct. The
Lopez opinion itself suggests that rules one, two, and ten are most
important in determining how much an activity is like interstate
commerce.
Future decisions are also necessary to reveal whether gun-free
school zones set the high water mark of state-controlled behavior,
so that even conduct that is only marginally more like interstate
commerce will fall within congressional control, or whether the tide
of things that are not sufficiently like interstate commerce will wash
even higher. Numerous signs from the Supreme Court, discussed in
Part III above, suggest that Lopez is at or near the high water mark,
but future decisions are needed to confirm that.
Rephrasing Lopez in this fuzzy manner is helpful for several
reasons. First, the fuzzy rules provide a framework for exploring
open questions. The rules outlined above highlight the need to de-
termine the weight of each factor in determining how much an ac-
tivity is like interstate commerce, as well as the need to clarify the
degree of overall commerce-likeness needed to support congres-
sional action.
Second, the fuzzy algorithm allows fuzziness in each of its com-
ponents. Commercial conduct, congressional findings, national
need, and traditional state activities are all fuzzy sets. Courts, as
the dissent pointed out in Lopez, are not very successful in identify-
ing sharply bounded sets like "commercial conduct" or "traditional
state activities."311 Casting Lopez in fuzzy terms avoids this di:ffi-
311. 115 S. Ct. at 1663-65 (Breyer, J., dissenting). The inability to identify a crisp set qf
"traditional governmental functions" also motivated the Supreme Court's 1985 decision to - '
culty. Courts' do not need to draw sharp lines separating commer-

cial conduct from noncommercial conduct; they only need to decide
matters of degree. It is hard to create crisp categories of commer-
cial and noncommercial conduct, but it is not so hard to say that this
action is more or less commercial than that one.312 Fuzzy logic de-
mands no more - and teaches that it is possible to reach precise
results by combining rules stated as matters of degree.
Third, this outline of fuzzy rules demonstrates that judicial deci-
sions based on multiple factors are not just ad hoc pronouncements.
Instead, these decisions rest on complex algorithms. Fuzzy logic
makes it easier to express these decisionmaking steps, so that the
court's reasoning is more clear. Over time, moreover, algorithms
based on fuzzy rules can be amended to incorporate more informa-
tion and yield more certain results.
Finally, fuzzy rules preserve more information and more fully
describe a Court's decision than blunt, categorical statements. The
danger of simple, unqualified statements can be seen in the history
of Wickard v. Filburn, 313 the case my classmates parodied in song.
Wickard frequently is cited for the categorical proposition that "in
determining whether a local activity will likely have a significant
effect upon interstate commerce, a court must consider, not the ef-
fect of an individual act ... but rather the cumulative effect of all
similar instances. " 314 In refining Wickard to this rule, courts have
omitted the facts that:
(1) Farmer Filburn was not an organic home baker who had decided
to raise wheat for a few loaves of bread. He raised wheat commer-
overrule National League of Cities v. Usery, 426 U.S. 833 (1976), and withdraw from judicial
enforcement of the Commerce Clause. See Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528 (1985). Usery suffered from a remarkable degree of rigidity, in requiring courts to
determine whether a congressional action (1) "regulate[d) the 'States as States'"; (2) "ad-
dress[ed] matters that are indisputably 'attribute(s] of state sovereignty' "; and (3) "directly
impair(ed] [the States'] ability 'to structure integral operations in areas of traditional govern-
mental functions.' " Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264,
287-88 (1981). It would be interesting to revisit Usery and determine whether the decision
would be more workable if courts determined how much a federal statute regulated the
"States as States," the extent to which the statute addressed "attributes of state sovereignty,"
and the degree to which the governmental function was "traditional."
312. Much of the Lopez majority's opinion expresses the fuzziness of the Commerce
Clause inquiry. In discussing the distinction between commercial and noncommercial con-
duct, however, the Court lapsed into conventional black-white categories. Lopez's conduct,
Rehnquist declared, "is in no sense an economic activity.'' 115 S. Ct. at 1634 (emphasis ad-
ded). This declaration elicited the dissent's accurate observation that schools and the activi-
ties taking place in them are somewhat commercial. See 115 S. Ct. at 1664 (Breyer, J.,
dissenting). The majority would have fared better by adhering to fuzzy logic and noting that
Lopez's behavior was "very little like economic activity.''
313. 317 u.s. 111 (1942).
314. Lopez, 115 S. Ct. at 1658 (Breyer, J., dissenting).
cially and regularly sold a portion of that wheat; indeed, the record
was not clear whether Filburn intended to sell the disputed wheat or
consume it on the farm.315
(2) "Home consumption" of wheat does not refer primarily to bread
and pies baked by wheat growers. Instead, most farm consumption of
wheat is devoted to feeding livestock who are then sold commercially
and to reseeding fields to produce more wheat for commercial sale.316
(3) Price controls for wheat could be enforced only on a national
level, and Congress believed those controls were essential to help pull
the country out of the Depression.317
(4) Farm consumption of wheat was a major variable in the market
for that product. The quantity of wheat required for household food,
livestock food, and seed is relatively inelastic. Therefore, small reduc-
tions in the wheat supply through increased farm consumption can
place dramatic pressure on price and easily undercut a price-control
program.318
(5) The aggregated effect of home wheat consumption on interstate
commerce, a possible fall in wheat prices, was exactly the effect Con-
gress sought to regulate; there was no suggestion that Congress pre-
tended an interest in wheat prices in order to regulate other
conduct.319
The cumulative effect of decisions to withhold wheat from a
market subject to national price controls, in other words, is more
commerce-like than the cumulative effect of guns possessed within
1000 feet of schools. Blindly transferring the aggregation principle
from Wickard to other contexts distorts the meaning of Wickard
and suggests that the decision is much broader than it was intended.
Wickard is not as broad an endorsement of national power as courts
have sometimes declared, and Lopez is not as forceful a protection
of state interests as some commentators have suggested. Both
opinions reflect careful attention to facts and context and draw rea-
soned lines in the fuzzy set of interstate commerce. Rephrasing the
decisions as fuzzy rules helps preserve both their context and their
meaning.

316. See Stern, supra note 117, at 902 (Farm consumption of wheat included 28-174 mil-
lion bushels consumed annually as livestock food, 73-97 million bushels used each year for
reseeding, and just 10-16 million bushels consumed annually as household food.). Despite
these facts, the myth of FJ.!burn as an organic home baker persists. See, e.g., Village of
Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994) ("We know
from Wickard v. Filburn ... that wheat a farmer bakes into bread and eats at home is part of
'interstate commerce'.•.." (citation omitted)).
317. See Stern, supra note 117, at 901-04.
318. See Wickard v. Filburn, 317 U.S. 111, 127 (1942); Stern, supra note 117, at 904.
319. Cf. Van Alstyne, supra note 61, at 783-99 (criticizing courts for upholding legislation
based on the Commerce Clause when the statute is dressed in a "cellophane wrapper" of
feigned interest in matters affecting interstate commerce).
Fuzzy logic is not necessary to preserve the fine points of judi-

cial decisions; careful doctrinal analysis could do the same. The
pressures of legal advocacy, however, tend to squeeze judicial state-
ments into rigid categories. The desire for certainty in organizing
vast quantities of legal doctrine has the same effect. Fuzzy logic is a
convenient tool for combatting these tendencies and remembering
that constitutional categories are inevitably fuzzy. Most important,
fuzzy logic reminds us that "fuzzy" is not the opposite of "logical."
Combining fuzzy rules yields reasoned decisions and well-defined
results -like a high speed train capable of stopping on a dime.32o
V. CoNCLUSION: A CoMMERCE SoNG FOR THE NINETIES
A nihilist might sneer at the seeming insignificance of United

States v. Lopez. The decision overturned a minor federal law that
Congress promptly moved to reenact in different form.321 With or
without federal action, school principals and state prosecutors will
continue to punish individuals who bring guns to schools. The
lower courts are unlikely to apply Lopez to invalidate many federal
laws, and the Supreme Court is unlikely to expand the opinion's
scope.
The strength of Lopez, however, lies in its narrow impact. De-
spite the decision's limited potential for striking federal legislation,
Lopez confirmed two fundamental constitutional principles: that
the Commerce Clause confers a limited grant of authority on Con-
gress and that the courts will enforce that limit through deferential,
but authentic, review. The modest ambition proclaimed by the ma-
jority - to prune an excessive and unnecessary piece of congres-
sional meddling while leaving prior Commerce Clause decisions
untouched - insulates those two principles from reversal. Lopez
will be distinguished, but it is unlikely to be reversed. 322 In that
way, Lopez makes a lasting contribution to constitutional doctrine.
Does this mean my classmates will need a new commerce song
when we cross state lines to celebrate our twentieth reunion? The
320. Once again, fuzzy logic cannot tell us where to place the dime. Fuzzy logic only
describes how to find a destination the Supreme Court has chosen on other grounds.
322. In contrast, National League of Cities v. Usery, 426 U.S. 833 (1976), involved an
application of the Fair Labor Standards Act that was worth millions of dollars to state and
local governments. Continued litigation was inevitable, as the courts struggled to determine
which employees were protected by the decision's shield of state sovereignty and which
workers fell outside that stronghold. The stakes were high enough, for both governments
and their employees, to keep the issue before the Court in the hopes that the Court would
change its mind. Nine years later, the Court overruled its decision in Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985).
ruling in Wickard v. Filburn3 23 will survive until our fiftieth reunion

and beyond. But a song is worth a megabyte of fuzzy logic, so I
offer this final tribute to Lopez:
Commerce (Revised)!
(sung to the tune of Achy Breaky Heart324)
The Peds can put the heat on a farmer growing wheat
(as long as he's consuming it at home),
Interstate extortion, obstructing an abortion,
And having drugs within a schooling zone.
Tell Ollie's Barbecue how not to sell its food,

And loan sharks not to break a butcher's leg.
Transactions dealing drugs, machine guns owned by thugs
Are all round holes that fit the "commerce" peg.
But don't regulate things that aren't so interstate;

The Court has said it may not understand
Those yuppie earphones or Gun-Free School Zones,
These aren't the kind of laws the Framers planned.
Contracts to arbitrate are on the federal plate,

though the bugs involved are in a 'Barna home.
The feds can draw the line at drugs financing a mine
or bigots who won't rent a hotel room.
But they can't regulate things that aren't so interstate;

I just don't think the Court would understand.
So gamble what you've got in an American Legion pot;
Now Lopez draws a line across the sand.
323. 317 u.s. 111 {1942).

324. The original lyrics to this song are among the worst ever written. You wouldn't
think that I need authority for that assertion, but I have one: See Dave Barry, Baby, Baby,
Don't Get Hooked on These Songs, ORLANDo SENTINEL TRIB., Jan. 26, 1993, at El.
I am grateful to Andrew Lloyd Merritt, still my favorite classmate after 15 years, for
composing this new version of "Commerce!" As the only country musician who has pub-
lished an article on securities fraud in the Texas Law Review, he was uniquely qualified for
the task.

Commerce!

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Michigan Law Review

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Deborah Jones Merritt*

Enlightened by this song and confident that Congress could reg-

have understood the contextual uniqueness of Lopez and already

holding in Lopez. Fuzzy logic captures the many facets of Lopez

I. UNITED STATEs v. LoPez.· THREE NEw PRINCIPLES

The Lopez decision works three important changes in the

only from intrastate activities;" and (3) statutes regulating activities

in education.19 Breyer was puzzled, even outraged, that the major-

19. See 115 S. Ct. at 1659-62, 1664 (Breyer, J., dissenting).

in Heart of Atlanta Motel v. United States, 24 a case broadly constru-

very least, therefore, the Lopez Court resolved an ambiguity in

merce Clause. Lopez sets an outer limit on congressional power,

B. Rational Basis Review

perfunctory.42 "[T]he federal balance," Justices Kennedy and

the substantial burdens that an activity has on interstate com-

ated rather than plenary. Under the Government's theories, the

54. 115 S. Ct. at 1632.

Acceptance of these theories would have required the Court to

ment erred in failing to acknowledge that the theory moved a step

II. THE LIMITS OF LOPEZ

Lopez is an important statement of constitutional principle.

direction of some interstate sale concluded somewhere by some

disappear. For these reasons, the Lopez majority correctly deter-

A. The Distinguishing Features of Lopez

jurisdictional element of the statute and by omitting any explicit

larly, the majority distinguished precedents in which the Court had

· 2. Lack of a Jurisdictional Element

Lopez decision, both senators and representatives introduced bills

3. Lack of Express Findings or Legislative History

even legislative history revealed the link Congress perceived be-

5. Gun Control and Private Property

The Fifth Circuit observed that the Second Amendment might

105. 115 S. Ct. at 1640 (Kennedy, J., concurring).

majority, as well, may have been influenced by the concepts of pri-

, 6. Lack of National Necessity

to pull the country out of the Depression.117 Federal regulation of

117. The Court described the agricultural crisis in these terms:

but the National School Boards Association - representing ap-

sociation of School Administrators, National Association of Secondary School Principals,

7. Positive and Negative Competition Among the States

When states compete by withholding services or legislative pro-

overwhelm the federal courts." 13 7 In 1990, a Federal Courts Study

Equally troubling, duplicate state and federal crimes give prose-

9. Conduct Outside the Workplace

The Court's distinction between commercial and noncommer-

poultry, and eggs.14S Even Perez v. United Statest46 upheld federal

The Court, of course, has approved some exercises of congres-

as the one advanced in Lopez, but the regulation of work per-

B. Lower Court Interpretations of Lopez

Court's Lopez decision. That ruling, as explained further below, is

The Drug-Free School Zones Act,157 which prohibits "distribut-

controlled substances. 16o Unlike the Gun-Free School Zones Act,

160. Garcia-Salazar, 891 F. Supp. at 572 ("Drug trafficking is inherently commercial in

robbery of a homeowner's cash, jewelry, clothes, and car.1n The

The Fifth Circuit drew upon both constitutional and nonconsti-

3. Firearms and Felons

Despite these weak links with interstate commerce, the

cover that gun possession by convicted felons implicates national

sion in the machinegun statute and the prohibition of possession

identified a wide range of distinctions between this statute and the

courts' contiriued unanimity after Lopez, suggest that the statute is