Was the Fifth Circuit Wrong in Lopez?

In 1992, Alfonso Lopez, Jr. brought gun to Edison High School in San Antonio, Texas.  He had been offered $40 to deliver the gun to a local gang member.  Though originally charged under state law, the local charges were dropped when the feds decided to prosecute him for violating the Gun-Free School Zones Act of 1990 (GFSZA).  He was convicted and sentenced to six months in federal prison.

On appeal before the U.S. Court of Appeals for the Fifth Circuit, Lopez successfully argued that the GFSZA exceeded the scope of federal power.  Specifically, Lopez argued, and the Fifth Circuit agreed, that this law could not be justified as a permissible exercise of Congress’ power to “regulate commerce . . . among the several states.”  “The United States Constitution establishes a national government of limited and enumerated powers,” the opinion began, followed by references to James Madison, The Federalist Papers,  and the Tenth Amendment.

The Fifth Circuit’s opinion was something of a surprise.  The Supreme Court had not rejected a federal law for exceeding the scope of the commerce clause in over fifty years, and it was generally assumed (particularly among legal academics) that Congress could do anything it wanted in the name or regulating commerce, so long as it did not intrude upon the Bill of Rights.  As Bruce Ackerman explained in volume I of We the People: After the New Deal revolution, “[a] commitment to federalism . . . was no longer thought to require a constitutional strategy that restrained the national government to a limited number of enumerated powers over economic and social life.” As a narrow majority of the Supreme Court had explained in Garcia v. San Antonio Metropolitan Transit Authority (1985), the remaining safeguards on federal power were “political,” not judicial.  As  a consequence, federal judicial opinions invalidating federal statutes for exceeding the scope of federal power were few and far between.

The Fifth Circuit recognized the tide of elite opinion supported the federal government’s case, but it also noted that the constitutionality of the GFSZA was “a question of first impression in the federal courts.”  Although the Supreme Court had okayed ever-increasing assertions of federal power, Judge Garwood’s opinion repaired to the “fundamental postulate of our constitutional order” that federal power is limited.   However broad the laws upheld in Jones & Laughlin Steel, Darby, Wickard, Heart of Atlanta Motel, Hodel, and Perez (to name but a few), federal power could not be infinite.  And so the Fifth Circuit struck the GFSZA down.

The Fifth Circuit’s opinion was subsequently vindicated by the Supreme Court in United States v. Lopez, but the appellate panel had no basis for predicting such an outcome at the time.  As noted above, it had been over half a century since the Court had felled a federal law on commerce clause grounds.  Does this mean the Fifth Circuit was wrong when it decide Lopez?  Or is it acceptable for lower courts to continue to observe the foundational principles of our constitutional order when considering cases of first impression, even when doing so requires swimming against the prevailing current of case law and academic opinion?  Or does it all depend on how the Supreme Court ultimately rules?