Tuesday, May 12, 2009
In the off-chance that you've not yet written your exam (or if you are looking for commerce clause fact patterns for next semester), a case issued by the Ninth Circuit - available here- may be exactly what you need. The facts are simple: Can federal law - specifically 18 U.S.C. § 931 - prevent convicted felons from possessing body armor that has been "sold or offered for sale in interstate commerce?"
The majority holds that it can for two primary reasons. First, the majority relies on stare decisis as it believes prior cases from the Supreme Court - including Scarborough v. United States, 431 U.S. 563 (1977) - and other circuits have addressed this issue. The court does not want to create a circuit split on the issue. Second, the majority asserts that even under the new analysis the Court provided in Lopez and Morrison, this statute is within the bounds of the Commerce Clause. Though the test has four factors, the majority focuses primarily on the fact that - unlike Lopez - the statute here has a proper "jurisdictional hook" limiting its scope to goods sold in interstate commerce.
The dissent focuses on two other Lopez-Morrison factors - the economic nature of the activity and whether the relationship of the activity to interstate commerice is too attenuated. The dissent concludes,"We have never found that mere possession is, itself, an economic activity." The judge further states, "[E]ven when Lopez’s and Morrison’s instructions are read in the light most favorable to exercise of congressional power, any potential effect on commerce . . . [through the] possession of body armor is both spare and particularly attenuated. The possession subject to regulation under § 931 need not be coupled with possession of a weapon or connected with the commission of a federal crime, circumstances which might fairly be said to substantially affect the national economy." The dissent concludes by stating its view that neither the presence of a jurisdctional element nor the congressional findings on point resolve the issue.
The tension between the majority and the dissent here is quite interesting. The majority's desire to show reverence to precedent is understandable, but by focusing so heavily on only one of the Lopez-Morrison factors (and by the majority's own admission, one that needn't ensure a favorable outcome on this issue) to the exclusion of the others, the majority's point loses its force. It surely would not have been difficult to identify and support the arguments on the reamining prongs of the test. But because the majority skims over that analysis, the dissent earns an advantage simply by being very thorough in the application of the law.
At any rate, the two points of view on an issue that is heavily taught make this an issue that is quite well suited for exam or classroom use.