Answer each of the following questions from Chief Justice Rehnquist’s majority opinion.

Answer each of the following questions from Chief Justice Rehnquist’s majority opinion.


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514 U.S. 549 (1995)
This assignment accounts for 10% of your final grade. Answer each of the following questions from
Chief Justice Rehnquist’s majority opinion. We will discuss no other opinions in this assignment.
The Constitution creates a government of ________________ powers. How does James
Madison define that concept?
The Constitution gives Congress the authority to regulate interstate commerce, defined
specifically as “commerce… among the several states”. Chief Justice Marshall in Gibbons v.
Ogden describes how the word “among” limits commerce: in which way?
For nearly a century after Gibbons, the Court held that authority to regulate three types of
activity was beyond the power of Congress under the Commerce Clause. What were they?
What was the Court’s rationale for not allowing Congress to regulate the above activities? (see
quotations from United States v. EC Knight and Carter v. Carter Coal Company.)
In the Schecter case from 1935, the Court explained that Congress could treat activities that
directly affected interstate commerce differently than those that indirectly affected interstate
commerce. Explain.
Two years later, in the case of NLRB v. Jones & Laughlin Steel Corp. (1937), the Court departed
from the distinction between “direct” and “indirect” effects on interstate commerce. Which
intrastate activities could now be regulated by Congress?
Subsequently, the Court has identified three broad categories of activity that Congress may
regulate under its commerce power. What are they?
Which of the above categories applies to this case?
Why does the disputed statute in this case not qualify for Congressional regulation under the
above category? (Two reasons are given, both must be given to answer the question correctly;
no partial credit will be given.)
What does the Court state the result would be if it were to accept the government’s arguments?
United States v. Lopez, 514 U.S. 549 (1995).
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United States v. Lopez (93-1260), 514 U.S. 549 (1
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NOTICE: This opinion is subject to formal revision
before publication in the preliminary print of the
United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court
of the United States, Washington, D.C. 20543, of
any typographical or other formal errors, in order
that corrections may be made before the
preliminary print goes to press.
No. 93-1260
on Writ of certiorari to the united states court of appeaLs for the fifth
circuit[10/13/2017 9:09:45 AM]
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United States v. Lopez, 514 U.S. 549 (1995).
[April 26, 1995]
Chief Justice Rehnquist delivered the opinion of the Court.
In the Gun Free School Zones Act of 1990, Congress made it a
federal offense “for any individual knowingly to possess a
firearm at a place that the individual knows, or has reasonable
cause to believe, is a school zone.” 18 U.S.C. § 922(q)(1)(A)
(1988 ed., Supp. V). The Act neither regulates a commercial
activity nor contains a requirement that the possession be
connected in any way to interstate commerce. We hold that
the Act exceeds the authority of Congress “[t]o regulate
Commerce . . . among the several States . . . .” U. S. Const.,
Art. I, §8, cl. 3.
On March 10, 1992, respondent, who was then a 12th grade
student, arrived at Edison High School in San Antonio, Texas,
carrying a concealed .38 caliber handgun and five bullets.
Acting upon an anonymous tip, school authorities confronted
respondent, who admitted that he was carrying the weapon.
He was arrested and charged under Texas law with firearm
possession on school premises. See Tex. Penal Code Ann.
§46.03(a)(1) (Supp. 1994). The next day, the state charges
were dismissed after federal agents charged respondent by
complaint with violating the Gun Free School Zones Act of
1990. 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V).
A federal grand jury indicted respondent on one count of
knowing possession of a firearm at a school zone, in violation
of §922(q). Respondent moved to dismiss his federal indictment
on the ground that §922(q) “is unconstitutional as it is beyond
the power of Congress to legislate control over our public
schools.” The District Court denied the motion, concluding that
§922(q) “is a constitutional exercise of Congress’ well defined
power to regulate activities in and affecting commerce, and
the `business’ of elementary, middle and high schools . . .
affects interstate commerce.” App. to Pet. for Cert. 55a.
Respondent waived his right to a jury trial. The District Court
conducted a bench trial, found him guilty of violating §922(q),
and sentenced him to six months’ imprisonment and two years’
supervised release.
On appeal, respondent challenged his conviction based on his
claim that §922(q) exceeded Congress’ power to legislate under
the Commerce Clause. The Court of Appeals for the Fifth
Circuit agreed and reversed respondent’s conviction. It held
that, in light of what it characterized as insufficient
congressional findings and legislative history, “section 922(q),
in the full reach of its terms, is invalid as beyond the power of[10/13/2017 9:09:45 AM]
United States v. Lopez, 514 U.S. 549 (1995).
Congress under the Commerce Clause.” 2 F. 3d 1342, 1367-1368
(1993). Because of the importance of the issue, we granted
certiorari, 511 U. S. ___ (1994), and we now affirm.
We start with first principles. The Constitution creates a
Federal Government of enumerated powers. See U. S. Const.,
Art. I, §8. As James Madison wrote, “[t]he powers delegated by
the proposed Constitution to the federal government are few
and defined. Those which are to remain in the State
governments are numerous and indefinite.” The Federalist No.
45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally
mandated division of authority “was adopted by the Framers to
ensure protection of our fundamental liberties.” Gregory v.
Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks
omitted). “Just as the separation and independence of the
coordinate branches of the Federal Government serves to
prevent the accumulation of excessive power in any one
branch, a healthy balance of power between the States and
the Federal Government will reduce the risk of tyranny and
abuse from either front.” Ibid.
The Constitution delegates to Congress the power “[t]o regulate
Commerce with foreign Nations, and among the several States,
and with the Indian Tribes.” U. S. Const., Art. I, §8, cl. 3. The
Court, through Chief Justice Marshall, first defined the nature
of Congress’ commerce power in Gibbons v. Ogden, 9 Wheat. 1,
189-190 (1824):
“Commerce, undoubtedly, is traffic, but it is something more: it
is intercourse. It describes the commercial intercourse
between nations, and parts of nations, in all its branches, and
is regulated by prescribing rules for carrying on that
The commerce power “is the power to regulate; that is, to
prescribe the rule by which commerce is to be governed. This
power, like all others vested in Congress, is complete in itself,
may be exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the constitution.” Id.,
at 196. The Gibbons Court, however, acknowledged that
limitations on the commerce power are inherent in the very
language of the Commerce Clause.
“It is not intended to say that these words comprehend that
commerce, which is completely internal, which is carried on
between man and man in a State, or between different parts of
the same State, and which does not extend to or affect other
States. Such a power would be inconvenient, and is certainly
unnecessary.[10/13/2017 9:09:45 AM]
United States v. Lopez, 514 U.S. 549 (1995).
“Comprehensive as the word `among’ is, it may very properly be
restricted to that commerce which concerns more States than
one. . . . The enumeration presupposes something not
enumerated; and that something, if we regard the language or
the subject of the sentence, must be the exclusively internal
commerce of a State.” Id., at 194-195.
For nearly a century thereafter, the Court’s Commerce Clause
decisions dealt but rarely with the extent of Congress’ power,
and almost entirely with the Commerce Clause as a limit on
state legislation that discriminated against interstate
commerce. See, e.g., Veazie v. Moor, 14 How. 568, 573-575
(1853) (upholding a state created steamboat monopoly because
it involved regulation of wholly internal commerce); Kidd v.
Pearson, 128 U.S. 1, 17, 20-22 (1888) (upholding a state
prohibition on the manufacture of intoxicating liquor because
the commerce power “does not comprehend the purely
domestic commerce of a State which is carried on between
man and man within a State or between different parts of the
same State”); see also L. Tribe, American Constitutional Law
306 (2d ed. 1988). Under this line of precedent, the Court held
that certain categories of activity such as “production,”
“manufacturing,” and “mining” were within the province of
state governments, and thus were beyond the power of
Congress under the Commerce Clause. See Wickard v. Filburn,
317 U.S. 111, 121 (1942) (describing development of Commerce
Clause jurisprudence).
In 1887, Congress enacted the Interstate Commerce Act, 24
Stat. 379, and in 1890, Congress enacted the Sherman Antitrust
Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 et seq. These laws
ushered in a new era of federal regulation under the commerce
power. When cases involving these laws first reached this
Court, we imported from our negative Commerce Clause cases
the approach that Congress could not regulate activities such
as “production,” “manufacturing,” and “mining.” See, e.g.,
United States v. E. C. Knight Co., 156 U.S. 1, 12 (1895)
(“Commerce succeeds to manufacture, and is not part of it”);
Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936) (“Mining
brings the subject matter of commerce into existence.
Commerce disposes of it”). Simultaneously, however, the Court
held that, where the interstate and intrastate aspects of
commerce were so mingled together that full regulation of
interstate commerce required incidental regulation of
intrastate commerce, the Commerce Clause authorized such
regulation. See, e.g., Houston, E. & W. T. R. Co. v. United
States, 234 U.S. 342 (1914) (Shreveport Rate Cases).[10/13/2017 9:09:45 AM]
United States v. Lopez, 514 U.S. 549 (1995).
In A. L. A. Schecter Poultry Corp. v. United States, 295 U.S.
495, 550 (1935), the Court struck down regulations that fixed
the hours and wages of individuals employed by an intrastate
business because the activity being regulated related to
interstate commerce only indirectly. In doing so, the Court
characterized the distinction between direct and indirect
effects of intrastate transactions upon interstate commerce as
“a fundamental one, essential to the maintenance of our
constitutional system.” Id., at 548. Activities that affected
interstate commerce directly were within Congress’ power;
activities that affected interstate commerce indirectly were
beyond Congress’ reach. Id., at 546. The justification for this
formal distinction was rooted in the fear that otherwise “there
would be virtually no limit to the federal power and for all
practical purposes we should have a completely centralized
government.” Id., at 548.
Two years later, in the watershed case of NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1 (1937), the Court upheld the
National Labor Relations Act against a Commerce Clause
challenge, and in the process, departed from the distinction
between “direct” and “indirect” effects on interstate
commerce. Id., at 36-38 (“The question [of the scope of
Congress’ power] is necessarily one of degree”). The Court held
that intrastate activities that “have such a close and
substantial relation to interstate commerce that their control
is essential or appropriate to protect that commerce from
burdens and obstructions” are within Congress’ power to
regulate. Id., at 37.
In United States v. Darby, 312 U.S. 100 (1941), the Court upheld
the Fair Labor Standards Act, stating:
“The power of Congress over interstate commerce is not
confined to the regulation of commerce among the states. It
extends to those activities intrastate which so affect interstate
commerce or the exercise of the power of Congress over it as
to make regulation of them appropriate means to the
attainment of a legitimate end, the exercise of the granted
power of Congress to regulate interstate commerce.” Id., at
See also United States v. Wrightwood Dairy Co., 315 U.S. 110,
119 (1942) (the commerce power “extends to those intrastate
activities which in a substantial way interfere with or obstruct
the exercise of the granted power”).
In Wickard v. Filburn, the Court upheld the application of[10/13/2017 9:09:45 AM]
United States v. Lopez, 514 U.S. 549 (1995).
amendments to the Agricultural Adjustment Act of 1938 to the
production and consumption of home grown wheat. 317 U. S.,
at 128-129. The Wickard Court explicitly rejected earlier
distinctions between direct and indirect effects on interstate
commerce, stating:
“[E]ven if appellee’s activity be local and though it may not be
regarded as commerce, it may still, whatever its nature, be
reached by Congress if it exerts a substantial economic effect
on interstate commerce, and this irrespective of whether such
effect is what might at some earlier time have been defined as
`direct’ or `indirect.’ ” Id., at 125.
The Wickard Court emphasized that although Filburn’s own
contribution to the demand for wheat may have been trivial by
itself, that was not “enough to remove him from the scope of
federal regulation where, as here, his contribution, taken
together with that of many others similarly situated, is far
from trivial.” Id., at 127-128.
Jones & Laughlin Steel, Darby, and Wickard ushered in an era
of Commerce Clause jurisprudence that greatly expanded the
previously defined authority of Congress under that Clause. In
part, this was a recognition of the great changes that had
occurred in the way business was carried on in this country.
Enterprises that had once been local or at most regional in
nature had become national in scope. But the doctrinal change
also reflected a view that earlier Commerce Clause cases
artificially had constrained the authority of Congress to
regulate interstate commerce.
But even these modern era precedents which have expanded
congressional power under the Commerce Clause confirm that
this power is subject to outer limits. In Jones & Laughlin Steel,
the Court warned that the scope of the interstate commerce
power “must be considered in the light of our dual system of
government and may not be extended so as to embrace 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.” 301 U. S., at 37; see also Darby, supra, at 119120 (Congress may regulate intrastate activity that has a
“substantial effect” on interstate commerce); Wickard, supra,
at 125 (Congress may regulate activity that “exerts a
substantial economic effect on interstate commerce”). Since
that time, the Court has heeded that warning and undertaken
to decide whether a rational basis existed for concluding that a[10/13/2017 9:09:45 AM]
United States v. Lopez, 514 U.S. 549 (1995).
regulated activity sufficiently affected interstate commerce.
See, e.g., Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U.S. 264, 276-280 (1981); Perez v. United
States, 402 U.S. 146, 155-156 (1971); Katzenbach v. McClung,
379 U.S. 294, 299-301 (1964); Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 252-253 (1964).
Similarly, in Maryland v. Wirtz, 392 U.S. 183 (1968), the Court
reaffirmed that “the power to regulate commerce, though
broad indeed, has limits” that “[t]he Court has ample power” to
enforce. Id., at 196, overruled on other grounds, National
League of Cities v. Usery, 426 U.S. 833 (1976), overruled by
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.
528 (1985). In response to the dissent’s warnings that the Court
was powerless to enforce the limitations on Congress’
commerce powers because “[a]ll activities affecting commerce,
even in the minutest degree, [Wickard], may be regulated and
controlled by Congress,” 392 U. S., at 204 (Douglas, J.,
dissenting), the Wirtz Court replied that the dissent had
misread precedent as “[n]either here nor in Wickard has the
Court declared that Congress may use a relatively trivial
impact on commerce as an excuse for broad general regulation
of state or private activities,” id., at 197, n. 27. Rather, “[t]he
Court has said only that where a general regulatory statute
bears a substantial relation to commerce, the de minimis
character of individual instances arising under that statute is of
no consequence.” Ibid. (first emphasis added).
Consistent with this structure, we have identified three broad
categories of activity that Congress may regulate under its
commerce power. Perez v. United States, supra, at 150; see
also Hodel v. Virginia Surface Mining & Reclamation Assn.,
supra, at 276-277. First, Congress may regulate the use of the
channels of interstate commerce. See, e.g., Darby, 312 U. S.,
at 114; Heart of Atlanta Motel, supra, at 256 (” `[T]he
authority of Congress to keep the channels of interstate
commerce free from immoral and injurious uses has been
frequently sustained, and is no longer open to question.’ ”
(quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)).
Second, Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things
in interstate commerce, even though the threat may come only
from intrastate activities. See, e.g., Shreveport Rate Cases,
234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S.
20 (1911) (upholding amendments to Safety Appliance Act as
applied to vehicles used in intrastate commerce); Perez, supra,
at 150 (“[F]or example, the destruction of an aircraft (18[10/13/2017 9:09:45 AM]
United States v. Lopez, 514 U.S. 549 (1995).
U.S.C. § 32), or . . . thefts from interstate shipments (18 U.S.C.
§ 659)”). Finally, Congress’ commerce authority includes the
power to regulate those activities having a substantial relation
to interstate commerce, Jones & Laughlin Steel, 301 U. S., at
37, i.e., those activities that substantially affect interstate
commerce. Wirtz, supra, at 196, n. 27.
Within this final category, admittedly, our case law has not
been clear whether an activity must “affect” or “substantially
affect” interstate commerce in order to be within Congress’
power to regulate it under the Commerce Clause. Compare
Preseault v. ICC, 494 U.S. 1, 17 (1990), with Wirtz, supra, at
196, n. 27 (the Court has never declar …
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