The Herpes Theory of the Commerce Clause:

I think I agree with DaveK in this comment on Jonathan’s post Limits on Federal Power After Raich that Justice Scalia’s concurring opinion in Raich offers a way to reconcile it logically with Lopez/Morrison — though this “reconciliation” greatly expands federal power beyond the line apparently drawn in those previous cases. Justice Scalia is one smart judge, and one always needs to pay close attention to what he says, even where one disagrees with him.

The doctrine to which Judge Sentelle seems to be reacting, however, is not the “broader national economic regulatory scheme” doctrine associated with Raich, but a different doctrine that precedes Lopez and Morrison, and which those two cases never address: that Congress may regulate the possession and use of any item that once traveled in interstate commerce. This doctrine has been called by Professor David Engdahl, the “herpes theory” of the Commerce Clause because, as he puts it, “some lingering federal power infects whatever has passed through the federal dominion.” Reconciling this doctrine, which was never at issue in Raich because nothing had moved through interstate commerce, with Lopez/Morrison is very hard to do.

This was pointed out last week in an opinion by Judge Michael McConnell for the 10th Circuit in U.S. v Patton. The case concerned the possession of body armor that had once moved through interstate commerce. Here is what a part of what he writes:

Although the body armor statute does not fit within any of the Lopez categories, it is supported by the pre-Lopez precedent of Scarborough v. United States, 431 U.S. 563, 575 (1977), which held that Congress intended a felon-in-possession statute to prohibit possession of any firearm that had moved in interstate commerce. Scarborough decided only a question of statutory interpretation about a previous version of the felon-in-possession statute, but the decision assumed that Congress could constitutionally regulate the possession of firearms solely because they had previously moved across state lines. . . . Because Mr. Patton’s bulletproof vest moved across state lines at some point in its existence, Congress may regulate it under Scarborough, even though it does not fall within any of the three categories the Court now recognizes for Commerce Clause authority. The prohibition on possessing body armor cannot be distinguished from the prohibitions on possessing firearms that we have upheld. . . . Following our precedent, we conclude that 18 U.S.C. § 931 does not exceed congressional power under the Commerce Clause.

Like our sister circuits, we see considerable tension between Scarborough and the three-category approach adopted by the Supreme Court in its recent Commerce Clause cases, and like our sister circuits, we conclude that we are bound by Scarborough, which was left intact by Lopez. . . . . Any doctrinal inconsistency between Scarborough and the Supreme Court’s more recent decisions is not for this Court to remedy. We suspect the Supreme Court will revisit this issue in an appropriate case — maybe even this one. (citations omitted).

In contrast, here is how he treated Raich:

We recognize that in Raich, the Court interpreted the contours of the third category by reference to “economics” rather than “commerce,” and included the “consumption of commodities” as well as their production and distribution within that definition. Id. (internal quotation marks omitted). That does not alter our conclusion. First, we are bound by the holding of Lopez, reaffirmed in Raich, that the mere possession of firearms near a school is not a commercial activity for purposes of the third category. Second, possession of firearms or body armor cannot be described as “consumption.” Consumption is the “act of destroying a thing by using it; the use of a thing in a way that thereby exhausts it,” Black’s Law Dictionary 336 (8th ed. 2004), and possessing or wearing body armor neither destroys nor exhausts it. Finally, we note that the Raich opinion as a whole treats congressional authority over the domestic consumption of marijuana as within the third category only because it was connected to a comprehensive national ban on “the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market.” Raich, 125 S. Ct. at 2211. The Controlled Substances Act, the statute at issue in Raich, prohibited possession of marijuana as a “means of regulating commerce in that product.” Id. We do not interpret Raich as holding that Congress may criminalize the mere possession of a commodity for the purpose of consumption, divorced from such a comprehensive regulatory scheme, based on the third category.

After Raich, most observers thought that the Commerce Power again had no limits, but the decision in Patton finds the statute outside what is authorized by Raich (though it still upholds the statute under Scarborough). This way of “Limiting Raich” is similar to what I described in a short essay you can find here, but adds another twist: Neither the majority’s opinion in Raich, nor Justice Scalia’s concurrence, purports to reverse Lopez. Indeed, Justice Scalia tries hard to reconcile them, and Judge McConnell seems to be following his lead. Emphasizing Lopez, however, can have he effect of limiting Raich, IF a court so desires. Will the Supreme Court? We’ll see. Given that there is more work to be done reconciling all of the Commerce Clause decisions, there remains an opportunity to find limits on congressional power, IF there is the will to do so.