Federal Power

Chapter 4

Federal Power

Federal power to regulate interstate commerce through the early twentieth century was interpreted narrowly. As the nation plunged into a national economic crisis in the form of the Great Depression, however, case law became highly deferential toward federal power to regulate any activity that might affect the national economy. For half a century thereafter, the Court consistently upheld regulatory initiatives that expanded federal power into areas traditionally reserved for state control. Expansion of the federal commerce power slowed in the 1990s, as the Court began to insist on a more demonstrable relationship between federal concern and national economic impact. The Court’s decision in United States v. Lopez (1995) was a front-wave ruling in this regard.

Lopez, Raich, and Sebelius together reflect a somewhat ambiguous effort by the Court to reconsider—and rein in—the previous decades of almost complete deference by the Court to Congress’s power to regulate under the Commerce Clause. While Lopez signaled the Court’s new-found insistence on requiring a clear factual demonstration by Congress that the intrastate activity it sought to regulate be truly economic in nature, as well as have a clearly substantial effect on interstate commerce, Raich seemed to provide an exception to Lopez, since it allowed regulation of any intrastate activity that could be described as part of a comprehensive regulatory scheme (as opposed to a more limited, discrete law targeting local conduct alone). In the case of such large federal regulatory schemes, the Court will once-again defer to Congress’s judgment on whether the intrastate activity, even if non-economic in nature, affects interstate commerce. Nevertheless, it is at least clear from the Sebelius decision that the Court will not allow Congress to regulate nonactivity under the Commerce Clause, regardless of whether the regulation relates to a larger comprehensive regulatory scheme.

United States v. Lopez

Citation: 514 U.S. 549.

Issue: Whether the federal power to regulate interstate commerce gives Congress the power to regulate gun possession in school zones.

Year of Decision: 1995.

Outcome: Congress lacks the power to regulate guns in school zones because of an insufficient relationship to interstate commerce.

Author of Opinion: Chief Justice William Rehnquist.

Vote: 5-4.

In the Articles of Confederation, the governing document that preceded the United States Constitution, the founders of the United States gave the states broad authority, including the power to regulate commerce. Over time, it became clear that the Articles were fatally flawed. The states used their power over commerce to protect their own economies and to discriminate against interstate trade. As state economies floundered, however, the states ultimately found it necessary to replace the Articles of Confederation with a new governing document, the United States Constitution.

The Constitution gave the federal government the power to control commerce “among the several states,” as well as commerce between the United States and foreign countries. However, in addition to providing the new federal government with significantly broader powers than the Articles of Confederation provided, the framers sought to limit those new powers as well by creating a federal government of specific enumerated powers. This arrangement reserved the remaining powers (including some limited power over commerce) to the states or to the people. This balance of powers, between the federal government, on the one hand, and state and local governments, on the other, is known as “federalism,” and continues to be a rich source of constitutional debate within the Court.

Until the 1930s, the federal government struggled to define the scope of the federal commerce power and to clarify the dividing line between federal power and state power. In a number of cases, the Court concluded that Congress had exceeded the scope of its power. For example, in Hammer v. Dagenhart (1918), the Court struck down a prohibition on the interstate transportation of goods manufactured in violation of child labor laws. In other cases, the Court suggested that Congress did not have the power to regulate such activities as “production,” “manufacturing,” or “mining.” For example, in United States v. E.C. Knight Co. (1895), the Court found that “[c]ommerce succeeds to manufacture, and is not part of it.” Finally, in Carter v. Carter Coal Co. (1936), the Court distinguished between “direct” and “indirect” effects on interstate commerce and concluded that Congress did not have power to control the latter.

The Court’s attitude towards federal power changed dramatically in the 1930s. Following the 1929 stock market crash, the country settled into a prolonged period of economic depression. More than 2,000 banks failed, one-fourth of the nation’s work force fell into unemployment (with much higher levels of unemployment in some cities), the price of wheat dropped by nearly 90 percent, and industrial output fell by 60 percent.

In 1932 President Franklin Delano Roosevelt was elected on the promise of a “New Deal,” and he took office demanding “action, and action now.” One of his first acts was to call an extraordinary session of Congress to begin just five days after his inauguration. During his first 100 days, Roosevelt pushed through Congress a host of bills regulating financial markets, creating federal works programs, and regulating prices and wages. Many of these acts were received with suspicion by the federal courts. Decisions like Panama Refining and Schechter, coupled with the Court’s restrictive interpretation of the commerce clause in cases like Carter Coal Co., angered President Roosevelt, who viewed the Court as an obstacle to his New Deal policies.

Following his landslide reelection victory in the 1936 election, President Roosevelt developed his infamous “court packing plan,” which would have altered the Court’s membership (and, presumably, its decisions) by adding members to the Court. The plan provided that, when a judge or justice of any federal court reached the age of 70 without availing himself of the opportunity to retire, an additional justice could be appointed by the President. At the time, six justices were age 70 or older. If the plan had passed, the Court’s membership would have expanded to 15 members, presumably giving Roosevelt a majority of members sympathetic to his policy positions.

Despite the popularity of both President Roosevelt and his New Deal, many opposed the court packing legislation. Even though Congress was constitutionally authorized to control the number of Supreme Court justices, many believed that Roosevelt was trying to manipulate the Court’s membership in an obvious effort to control the Court’s decisions.

In the midst of the controversy over the court packing plan, the Court decided NLRB v. Jones and Laughlin Steel Corp. (1937) and adopted a more deferential attitude towards Congress’s commerce clause authority. Many believe that the Court’s more deferential approach resulted from the pressure conveyed by the court packing plan. Regardless, Jones and Laughlin ushered in a half-century during which the Court upheld essentially every assertion of federal regulatory power under the commerce clause. Basically, as long as Congress has a rational basis for believing that the activity (even if predominantly intrastate) affects interstate commerce, then the law will be upheld as constitutional.

Alongside Jones and Laughlin, the case of Wickard v. Filburn (1942) cemented the new deferential attitude of the Court in commerce clause jurisprudence. Responding to the dramatic rise in wheat prices, Congress had passed the Agricultural Adjustment Act (AAA) in hopes of countering the rise. Under the AAA, quotas were established limiting the amount of wheat farmers could produce. Farmer Filburn grew wheat on his farm and exceeded his quota, even though Filburn primarily used his wheat for home consumption. After he was fined, Filburn sued, claiming this application of the AAA was unconstitutional because it sought to regulate his purely intrastate use of the wheat, thereby lacking the necessary interstate nexus.

The Court rejected Filburn’s argument, and established what has come to be known as the ‘aggregation principle,’ whereby the activity in question can be added to other hypothetical activity of a similar kind, thereby achieving the interstate nexus. As Justice Jackson argued for the Court “[Although Filburn’s] own contribution for the demand for wheat may be trivial by itself, [it] is 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.”

This post-1937 deferential approach came to an end with the holding in Lopez. This case concerned the Gun-Free School Zones Act of 1990, in which 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.” Lopez, 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. When he was arrested and charged with violating the federal enactment, he defended himself on the basis that Congress had exceeded its power to regulate commerce. The Court agreed and reversed Lopez’s conviction.

In deciding the case, the Court reaffirmed the notion the Constitution created a federal government of “enumerated powers.” The Court quoted James Madison’s statements in the Federalist Papers: “[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.” In addition, the Court recognized that decisions like Jones and Laughlin Steel had greatly expanded Congress’s authority. Then, for the first time in more than half a century, the Court held that Congress’s power to regulate interstate commerce is “subject to outer limits.” The Court concluded that Congress may regulate commerce in three different situations: it “may regulate the use of the channels of interstate commerce; it may 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; & Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” In Lopez, the Court concluded that the latter category requires proof that the regulated activity “substantially affects” interstate commerce.

In striking down the Gun-Free School Zones Act, the Court found that the first two categories of authority were absent because the Act did not regulate the channels of interstate commerce and did not prohibit the interstate transportation of a commodity through the channels of commerce. As a result, if the Act was to be upheld, the Court would have to find that it involved regulation of an activity that substantially affects interstate commerce. The difficulty was that the Court found that the law had “nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” The Government argued that possession of a firearm in a school zone can “result in violent crime and that violent crime can be expected to affect the functioning of the national economy” because insurance spreads the cost of crime throughout the nation, and because violent crime reduces the willingness of individuals to travel to places that are regarded as unsafe. The Government also argued that the presence of guns in schools presents a substantial threat to the educational process by threatening the learning environment and resulting in “a less productive citizenry” with a consequent impact “on the nation’s economic well-being.”

The Court refused to accept these arguments, noting that such arguments would allow Congress virtually unfettered authority to regulate the day-to-day lives of the people. Under the government’s “costs of crime” rationale, Congress could “regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.” Moreover, if the government’s “national productivity” reasoning were accepted, Congress could regulate any activity that it found was related to economic productivity including family law in general and issues like marriage, divorce, and child custody in particular. It could also regulate the entire educational process mandating curricula for all schools. The Court rejected these possibilities, noting that the “possession of a gun in a local school zone is in no sense an economic activity that might, even through repetition elsewhere, substantially affect any sort of interstate commerce.” The Court emphasized that there was no proof that either Lopez or his weapon had been involved in interstate commerce. “To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the commerce clause to a general police power of the sort retained by the States.”

Justice Anthony Kennedy, joined by Justice Sandra Day O’Connor, concurred, arguing the Act “upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power.” Even though he doubted that any reasonable person would argue students should be allowed to carry guns on school premises, he believed that states should be allowed to experiment and use their expertise “in an area to which States lay claim by right of history and expertise.”

Justice Stephen Breyer, joined by three other justices, dissented, arguing Congress could have found that guns in school zones significantly undermine the quality of education in the country, and “that gun-related violence in and around schools is a commercial, as well as a human, problem.” He also worried that the Court’s holding raised questions regarding the validity of other federal criminal statutes premised on the commerce power. He noted that more than 100 sections of the United States Code are premised on the commerce power, and he wondered whether they would be upheld or struck down.

Lopez is an extremely important decision because it ends half a century of judicial deference to congressional assertions of power under the commerce clause. In subsequent decisions, the Court has required a more substantial nexus between a regulated activity and interstate commerce than it had previously required. However, the Court has struggled to find a proper balance between its prior deferential approach to congressional power and Lopez’s more rigorous review.


Chief Justice REHNQUIST delivered the opinion of the Court.

. . . First, we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce. Examples include the regulation of intrastate coal mining, intrastate extortionate credit transactions, restaurants utilizing substantial interstate supplies, inns and hotels catering to interstate guests, and production and consumption of homegrown wheat. These examples are by no means exhaustive, but the pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.

Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not. Roscoe Filburn operated a small farm in Ohio, on which, in the year involved, he raised 23 acres of wheat. It was his practice to sow winter wheat in the fall, and after harvesting it in July to sell a portion of the crop, to feed part of it to poultry and livestock on the farm, to use some in making flour for home consumption, and to keep the remainder for seeding future crops. The Secretary of Agriculture assessed a penalty against him under the Agricultural Adjustment Act of 1938 because he harvested about 12 acres more wheat than his allotment under the Act permitted. The Act was designed to regulate the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages, and concomitant fluctuation in wheat prices, which had previously obtained. The Court said, in an opinion sustaining the application of the Act to Filburn’s activity:

“One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.”

[The Gun-Free School Zones Act] is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms. [It] is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Second, [the Act] contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce. . . .

Although as part of our independent evaluation of constitutionality under the Commerce Clause we of course consider legislative findings, and indeed even congressional committee findings, regarding effect on interstate commerce, the Government concedes that “[n]either the statute nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.” We agree with the Government that Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce. But to the extent that congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye, they are lacking here. . . .

The Government’s essential contention, in fine, is that we may determine here that [the Act] is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation’s economic well-being. As a result, the Government argues that Congress could rationally have concluded that [the Act] substantially affects interstate commerce. . . .

Under the theories that the Government presents in support of [the Act], 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.

Justice KENNEDY, with whom Justice O’CONNOR joins, concurring.

The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required. As THE CHIEF JUSTICE explains, unlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far. If Congress attempts that extension, then at the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern. . . .

The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term. The tendency of this statute to displace state regulation in areas of traditional state concern is evident from its territorial operation. There are over 100,000 elementary and secondary schools in the United States. Each of these now has an invisible federal zone extending 1,000 feet beyond the (often irregular) boundaries of the school property. In some communities no doubt it would be difficult to navigate without infringing on those zones. Yet throughout these areas, school officials would find their own programs for the prohibition of guns in danger of displacement by the federal authority unless the State chooses to enact a parallel rule.

Justice BREYER, with whom Justice STEVENS, Justice SOUTER, and Justice GINSBURG join, dissenting.

. . . To hold this statute constitutional is not to “obliterate” the “distinction between what is national and what is local,” nor is it to hold that the Commerce Clause permits the Federal Government to “regulate any activity that it found was related to the economic productivity of individual citizens,” to regulate “marriage, divorce, and child custody,” or to regulate any and all aspects of education. First, this statute is aimed at curbing a particularly acute threat to the educational process—the possession (and use) of life-threatening firearms in, or near, the classroom. The empirical evidence that I have discussed above unmistakably documents the special way in which guns and education are incompatible. This Court has previously recognized the singularly disruptive potential on interstate commerce that acts of violence may have. Second, the immediacy of the connection between education and the national economic well-being is documented by scholars and accepted by society at large in a way and to a degree that may not hold true for other social institutions. It must surely be the rare case, then, that a statute strikes at conduct that (when considered in the abstract) seems so removed from commerce, but which (practically speaking) has so significant an impact upon commerce.

In sum, a holding that the particular statute before us falls within the commerce power would not expand the scope of that Clause. Rather, it simply would apply preexisting law to changing economic circumstances. It would recognize that, in today’s economic world, gun-related violence near the classroom makes a significant difference to our economic, as well as our social, well-being. In accordance with well-accepted precedent, such a holding would permit Congress “to act in terms of economic . . . realities,” would interpret the commerce power as “an affirmative power commensurate with the national needs,” and would acknowledge that the “commerce clause does not operate so as to render the nation powerless to defend itself against economic forces that Congress decrees inimical or destructive of the national economy.”


Frantz, John P. “The Reemergence of the Commerce Clause as a Limit on Federal Power: United States v. Lopez.” Harvard Journal of Law and Public Policy 19 (1995): 161.

Lively, D., P. Haddon, D. Roberts, R. Weaver, and W. Araiza. Constitutional Law: Cases, History, and Dialogues. 2nd ed. Cincinnati, OH: Anderson Publishing, 2000, 514–24.

McElvaine, Robert S. The Great Depression. New York: Times Books, 1984, 137.

Nelson, Grant S., and Robert J. Pushaw, Jr. “Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control over Social Issues.” Iowa Law Review 85 (1999): 1.

Nourse, V. F. “Toward a New Constitutional Anatomy.” Stanford Law Review 56 (2004): 835.

Rossiter, Clinton, ed. The Federalist No. 45. New York: New American Library, 1961, 292–93.

Gonzales v. Raich

Citation: 545 U.S. 1.

Issue: Does Congress have the constitutional authority under the commerce clause to regulate the intrastate cultivation and possession of marijuana for medical use?

Year of Decision: 2005.

Outcome: Yes. Congress does have the authority to prohibit the local cultivation and use of marijuana under the commerce clause, despite state law to the contrary.

Author of Opinion: Justice Stevens.

Vote: 6-3.

Only gold members can continue reading. Log In or Register to continue