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:
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.In contrast, here is how he treated Raich:
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).
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.
Related Posts (on one page):
- The Herpes Theory of the Commerce Clause:
- Limits on Federal Power After Raich:
For similar reasons, Justice Scalia's attempt to distinguish Lopez is, IMHO, almost laughable. Scalia argued that Lopez was unlike Raich because "it is . . . difficult to imagine what intelligible scheme of regulation of the interstate market in guns could have as an appropriate means of effectuation the prohibition of guns within 1000 feet of schools (and nowhere else)." He went on that "the relationship between the regulatory scheme . . . which requires all dealers in firearms that have traveled in interstate commerce to be licensed . . . and the statute at issue in Lopez approaches the nonexistent." In other words, according to Scalia, the GFSZA was not saved by the broader scheme rule because it did not have a sufficiently close connection to the scheme's goal of licensing. The problem with this argument is that it mistakenly treats gun licensing as the goal of the scheme when that was not the scheme's purpose at all. The goal of the scheme was to regulate and restrict the sale of guns to certain groups of people, such as minors -- licensing was merely a means to achieve those ends. So, although the prohibition of gun possession in school zones is not related to effectuating a licensing program, both are rationale means for Congress to "effectuate its objective" of eliminating the interstate market for the sale of guns to minors.
Possession of a gun in a school zone is certainly as "necessary" to regulating the interstate market for the same of guns to minors as regulating Angel Raich's possession of home grown medical marijuana was to regulating the interstate market for marijuana. Thus, Justice Scalia's distinction does not address why the GSFZA was not an "appropriate means of achieving the legitimate end of eradicating [the sale of guns to minors] from interstate commerce."
They didn't violate the ban on receipt (whose commerce nexus is the herpes one, ever moved in commerce) since they weren't prohibited at time of receipt.
They didn't violate the ban on possession, since its commerce nexus was possessing in or affecting commerce, and they did neither.
But the Supremes dropped two footnotes, one reciting the facts and the other saying that this conduct fell within the statute. With a discussion saying that Congress had intended to exercise its commerce powers to their fullest extent (which, given the specific nexuses set out, was not correct).
Always wondered about the due process implications. Not really void for vagueness, but involving the considerations that underlie it. A reasonable person reading the statute would understand that certain conduct was lawful, when under caselaw it was not.
The government will always argue that any official process is due process. After that, it's just a matter of getting the right rationalization in front of the right judge.
"A reasonable person reading the statute would understand that certain conduct was lawful, when under caselaw it was not."
Does this imply that lawyers and judges are not reasonable people?
Say what?
Unless there's compelling factual evidence that gun acquisition by minors is fueled by sales within 1000' of schools, there seems to be no rational connection at all between the two. I'd certainly been under the impression that most minors with guns either a) acquired them by taking them from their homes without permission or b) acquired them from other criminally-minded minors (ie, gang members), and I see no reason to believe the latter is either likelier to happen near a school than not, or going to be affected by such legislation at all.
(Especially given that the Act itself allows such possession if the gun is unloaded and in a locked container... and given that the Act (as enacted in 1990, at least) also has no preamble stating congressional intent, and also talks about the discharge of firearms, making it seem much more plausible that it's a (misguided) attempt to enact a Federal Gun Safety Law.
But I see no plausible way to connect a ban on discharging a firearm near a school with the Commerce Clause, or an attempt to prevent children from buying guns. Where does the idea that the goal of the GFSZA was reducing sales to minors come from?
(It surely is not in the opinion in Lopez, though Stevens' dissent tries to claim it most unconvincingly, with bare assertion, and coupled with an argument that seems to be "guns are really dangerous, so we can regulate them anyway". [Stevens' is a model of clarity, at least, compared to Souter's.]
Breyer addresses the issue of violence committed with guns, in relation to the Amended version of the ACt from 1994... but gun violence is not a market for guns in the hands of children, nor, contra Breyer, can I consent to a ban such as the one in the Act on such grounds anyway, or on Breyer's strained case that since education relates to commerce, anything related to education can be regulated.
I'd actually never read this decision or its dissents before, and I'm astounded at what Breyer's trying to pass off as legal logic here.
Under such a conception, is there anything that cannot be regulated as "affecting commerce"? It seems not, which makes me even happier than Breyer's dissent is a dissent.
But I'm digressing, and it wasn't my intent to turn this into a "what the hell is wrong with Justice Breyer, anyway" rant.)
That much is painfully obvious to anyone who's even minimally literate, and compares the text of the Constitution to the Leviathan our government has become.
Well, they are conversant in the law and the process behind it; a musician or painter could not give the viewpoint of a "reasonable person" about art, either.
I'd correct that to say that lawyers are conversant in the law in order to find a way around it. Musicians do not study music in order to find a way to avoid playing, nor do painters study painting in order to avoid painting. Thus, the vocation of lawyering, as a means to effect for one's clients the avoision of the consequences of their actions, is inherently unnatural and unreasonable.
Does this imply that lawyers and judges are not reasonable people?
Well, I wouldn't rule out some overlap between the two. If you take two large groups, there will always be a few isolated cases....
Sadly, the answer is "not much". But even worse, IMO, is that the pretence that the Commerce Clause also contains the words "or affecting commerce"* is so firmly established that no one feels the slightest need to argue for it.
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*Hint to the unaware: it doesn't.
I agree with your conclusion but these premises are just untrue. Good examples from each trade most certainly do become conversant to "find away around it," otherwise they'd be also-rans. Picasso, Cage, Warhol, Bowie, Morrissey. Everyone who is good at what they do knows how to work around the rules. What's true about lawyers is true about artists.
If you grow something in your own yard for your own use, it's interstate commerce.
If you purchase something that once came from out of state, it's interstate commerce.
So now what we need is a decision saying that if you purchase something that someone else grew in the same state, that's interstate commerce.
Or do we already have that?
I think the commerce clause jurisprudence would be a lot less of a mess if the Court would just interpret it to mean what it says. The caselaw is only confusing and complex because it is full of "rules" that can only be applied to the case at hand.