Article 1, Section 8, Clause 3 — Limits On Federal Regulation Of Intrastate Activity

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Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

In United States v. Lopez[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn1art1 " 514 U.S. 549 (1995). The Court was divided 5-4, with Chief Justice William Rehnquist writing the opinion of the Court, joined by Justices Sandra O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, with dissents by Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg. ") the Court, for the first time in almost sixty years,[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn2art1 " Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down regulation of mining industry as outside of Commerce Clause). ") invalidated a federal law as exceeding Congress’s authority under the Commerce Clause. The statute made it a federal offense to possess a firearm within 1,000 feet of a school.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn3art1 " 18 U.S.C. § 922(q)(1)(A). Congress subsequently amended the section to make the offense jurisdictionally turn on possession of “a firearm that has moved in or that otherwise affects interstate or foreign commerce.” Pub. L. No. 104–208, 110 Stat. 3009–370. ") The Court reviewed the doctrinal development of the Commerce Clause, especially the effects and aggregation tests, and reaffirmed that it is the Court’s responsibility to decide whether a rational basis exists for concluding that a regulated activity sufficiently affects interstate commerce when a law is challenged.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn4art1 " 514 U.S. at 556–57, 559. ") As noted previously, the Court’s evaluation started with a consideration of whether the legislation fell within the three broad categories of activity that Congress may regulate or protect under its commerce power: (1) the use of the channels of interstate commerce; (2) the use of instrumentalities of interstate commerce; or (3) activities that substantially affect interstate commerce.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn5art1 " Id. at 558–59. For an example of regulation of persons or things in interstate commerce, see Reno v. Condon, 528 U.S. 141 (2000) (information about motor vehicles and owners, regulated pursuant to the Driver’s Privacy Protection Act, and sold by states and others, is an article of commerce). ")

The Court reasoned that the criminalized activity did not implicate the first two categories.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn6art1 " 514 U.S. at 559. ") As for the third, the Court found an insufficient connection. First, a wide variety of regulations of “intrastate economic activity” has been sustained where an activity substantially affects interstate commerce. But the statute being challenged, the Court continued, was a criminal law that had nothing to do with “commerce” or with “any sort of economic enterprise.” Therefore, it could not be sustained under precedents “upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” [7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn7art1 " Id. at 559–61. ") The provision did not contain a “jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” [8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn8art1 " Id. at 561. ") The existence of such a section, the Court implied, would have saved the constitutionality of the provision by requiring a showing of some connection to commerce in each particular case.

Finally, the Court rejected arguments of the government and dissent that there was a sufficient connection between the offense and interstate commerce.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn9art1 " Id. at 563–68. ") At base, the Court’s concern was that accepting the attenuated connection arguments presented would eviscerate federalism. The Court stated:

Under the theories that the government presents . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn10art1 " Id. at 564. ")

Whether Lopez indicated a determination by the Court to police more closely Congress’s exercise of its commerce power, so that it would be a noteworthy case,[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn11art1 " “Not every epochal case has come in epochal trappings.” Id. at 615 (Souter, J., dissenting) (wondering whether the case is only a misapplication of established standards or is a veering in a new direction). ") or whether it was rather a “warning shot” across the bow of Congress, urging more restraint in the exercise of power or more care in the drafting of laws, was not immediately clear. The Court’s decision five years later in United States v. Morrison,[12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn12art1 " 529 U.S. 598 (2000). Once again, the Justices split 5-4, with Chief Justice Rehnquist’s opinion for the Court being joined by Justices O’Connor, Scalia, Kennedy, and Thomas, and with Justices Souter, Stevens, Ginsburg, and Breyer dissenting. ") however, suggests that stricter scrutiny of Congress’s exercise of its commerce power is the chosen path, at least for legislation that falls outside the realm of economic regulation.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn13art1 " For an expansive interpretation in the area of economic regulation, decided during the same Term as Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995). Lopez did not “purport to announce a new rule governing Congress’s Commerce Clause power over concededly economic activity.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003). ") The Court will no longer defer, via rational basis review, to every congressional finding of substantial effects on interstate commerce, but instead will examine the nature of the asserted nexus to commerce, and will also consider whether a holding of constitutionality is consistent with its view of the commerce power as being a limited power that cannot be allowed to displace all exercise of state police powers.

In Morrison the Court applied Lopez principles to invalidate a provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Gender-motivated crimes of violence “are not, in any sense of the phrase, economic activity,” [14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn14art1 " Morrison, 529 U.S. at 613. ") the Court explained, and there was allegedly no precedent for upholding commerce-power regulation of intrastate activity that was not economic in nature. The provision, like the invalidated provision of the Gun-Free School Zones Act, contained no jurisdictional element tying the regulated violence to interstate commerce. Unlike the Gun-Free School Zones Act, the VAWA did contain “numerous” congressional findings about the serious effects of gender-motivated crimes,[15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn15art1 " Dissenting Justice Souter pointed to a “mountain of data” assembled by Congress to show the effects of domestic violence on interstate commerce. 529 U.S. at 628–30. The Court has evidenced a similar willingness to look behind congressional findings purporting to justify exercise of enforcement power under Section 5 of the Fourteenth Amendment. See discussion under “enforcement,” . In Morrison itself, the Court determined that congressional findings were insufficient to justify the VAWA as an exercise of Fourteenth Amendment power. 529 U.S. at 619–20. ") but the Court rejected reliance on these findings. “The existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. [The issue of constitutionality] is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.” [16](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn16art1 " Morrison, 529 U.S. at 614. ")

The problem with the VAWA findings was that they “relied heavily” on the reasoning rejected in Lopez—the “but-for causal chain from the initial occurrence of crime . . . to every attenuated effect upon interstate commerce.” As the Court had explained in Lopez, acceptance of this reasoning would eliminate the distinction between what is truly national and what is truly local, and would allow Congress to regulate virtually any activity and basically any crime.[17](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn17art1 " Id. at 615–16. Applying the principle of constitutional doubt, the Court in Jones v. United States, 529 U.S. 848 (2000), interpreted the federal arson statute as inapplicable to the arson of a private, owner-occupied residence. Were the statute interpreted to apply to such residences, the Court noted, “hardly a building in the land would fall outside [its] domain,” and the statute’s validity under Lopez would be squarely raised. 529 U.S. at 857. ") Accordingly, the Court “reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Resurrecting the dual federalism dichotomy, the Court could find “no better example of the police power, which the Founders denied the national government and reposed in the States, than the suppression of violent crime and vindication of its victims.” [18](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/limits-on-federal-regulation-of-intrastate-activity#fn18art1 " Morrison</spa