Tuesday, January 11, 2011

Justice Thomas: Denial Nullifies Recent Commerce Clause Jurisprudence

Justice Thomas dissented yesterday (joined by Justice Scalia) in a denial of review of a case that the Court might have used to clarify the scope of the Commerce Clause.  Instead, Justice Thomas argued, the Court in denying review "tacitly accepts the nullification of our recent Commerce Clause jurisprudence."  Op. at 1.

While Justice Thomas overstates the significance of the denial of review, his dissent may give us some clues about the Court's most recent thinking on the Commerce Clause.

The case, Alderman v. U.S., involves 18 U.S.C. Sec. 931(a), the federal statute that outlaws body armor for anyone who has been convicted of a felony crime of violence and where the body armor was sold or offered for sale in interstate commerce.  Alderman was charged with violating the statute and entered a conditional plea.  He then appealed, arguing that the statute exceeded Congress's Commerce Clause authority.

A divided three-judge panel of the Ninth Circuit rejected the argument and upheld the statute.  The panel looked to the Court's 1977 ruling in Scarborough v. United States, a case involving a federal prohibition on possession of firearms by felons.  While Scarborough involved a different federal statute, it contained a similar "jurisdictional element"--a requirement that the regulated thing (there a firearm, here body armor) traveled in interstate commerce.  Thus Scarborough "considered whether proof that an illegally possessed firearm previously traveled in interstate commerce was sufficient to satisfy the nexus between possession of the firearm and commerce."  Op. at 7 (quoting United States v. Cortes (9th Cir. 2002)).  Scarborough did not directly address the constitutional question, but the Ninth Circuit ruled that it "implicitly assumed the constitutionality of the 'in commerce' requirement."  Op. at 7.  Thus, the Ninth Circuit ruled, Scarborough holds that a statute's jurisdictional element alone can put a statute within congressional power "[t]o regulate Commerce . . . among the several states . . . ."  Art. I, Sec. 8, the Commerce Clause.  Just as the jurisdictional element in Scarborough kept the federal firearm restriction within Congress's Commerce Clause authority, so too here the jurisdictional element keeps the federal body armor restriction within Congress's Commerce Clause authority.

The Ninth Circuit denied en banc review, and yesterday the Supreme Court denied review.

Justice Thomas (joined by Justice Scalia in all but a footnote referring to some of Justice Thomas's other writings on the scope of the Commerce Clause) wrote that the denial "nullified" more recent Commerce Clause jurisprudence, United States v. Lopez and United States v. Morrison.  Those cases held that Congress can regulate activities that have a substantial effect on interstate commerce, as measured by four considerations: whether the activity is commercial, or has anything to do with commerce; whether the statute contains a jurisdictional element; whether the legislative history contains any findings as to the effect on interstate commerce; and whether the link between the activity and a substantial effect on interstate commerce is too attenuated. 

Justice Thomas argues that the denial amounts to privileging the jurisdictional element above all else and ignoring the statute's encroachment on traditional state police powers.  According to Justice Thomas, this approach knows no bounds and would allow Congress to regulate everything from stolen candy transported across state lines to french fries purchased in another state.

Justice Thomas overstates the denial's impact on Lopez and Morrison.  A denial of review does not change the Supreme Court's jurisprudence, even implicitly.  And there may be any number of non-merits reasons why the Court denied review.

On the other hand, the Court's denial and Justice Thomas's dissent may tell us something about the Court's thinking on the Commerce Clause.  For one, the denial leaves the Ninth Circuit ruling in place, along with similar rulings in other circuits.  With no circuit going the the other way (rejecting congressional authority), the Ninth Circuit is now just the latest in a growing line of rulings that a jurisdictional element alone can authorize congressional regulation under the Commerce Clause.  This is significant: If the Court wanted to reverse this line and rein in the lower courts, as Justice Thomas argued, this seemed like the perfect case. 

Thus the Court's denial could mean that it doesn't want to reverse this line.  And that's plausible: The Ninth Circuit's approach isn't necessarily inconsistent with Lopez or Morrison; it's really a special case.  Neither Lopez nor Morrison gave any indication how the Court would weigh the four considerations if there were a clear and well defined jurisdictional element limiting the statute to activities sufficiently linked to interstate commerce.  Such an element--as here, as in Scarborough--may just be enough for the Court. 

For another, Justice Thomas was joined only by Justice Scalia.  That's not to say that others don't agree with the analysis--perhaps they do.  But none felt strongly enough about it to sign on.

Still, we can't read too much, if anything, from a dissent to the Court's denial of review.  Maybe the Court is inclined to take a look at this question, but this was just the wrong case at the wrong time.  In any event, the denial and Justice Thomas's dissent give us no clues as to how the Court might rule on the Commerce Clause issue of the day--the individual health insurance mandate.  The question there--whether the Commerce Clause authorizes Congress to require individuals to purchase insurance--is just too different from the question in Alderman.



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if it crosses state lines, and affects commerce the constitution must be changed to bar federal interest.

Posted by: El nathan | Jan 12, 2011 3:00:23 PM

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