Compare similarities and differences in Wickard v. Filburn & U.S. v. Lopez, jurisdiction, interstate commerce,

BA 481 A: BUSINESS LAW I

PRE-TERM WRITING ASSIGNMENT

This assignment is intended to acquaint the student with reading legal
writing and with the kind of comprehension that is required for analysis
of case decisions. What the student is expected to do is to read the
two following case decisions of the U.S. Supreme Court as the decisions
deal with the Commerce Clause of the United States Constitution (Article
I, Section 8, clause 3), understand the reasoning of the Court, and
analyze the relationship of the two cases. This is the most important
goal of this assignment.

The secondary goal of this assignment is to expose the student, on an
in-depth basis, to our federal system of government, the federal
judicial system, the terms used to describe the parties, how a case gets
heard by an appellate court, and the nature of some of the limitations
of the law and the legal system.

The assignment is: to read the decisions in Wickard v. Filburn and U.S.
v. Lopez and understand the cases well enough to compare their
similarities and differences. The student is expected to restrict him-
or herself to two paragraphs (approximately 150 - 300 words) if
possible, and to discuss the similarities in the first paragraph and the
differences in the second paragraph. Legal analysis is logical analysis
and is not affected (or should not be) by emotion; it is therefore not
relevant to the student's analysis to discuss how the student feels
about the decisions, since feelings are not relevant to logical
analysis.

WICKARD v. FILBURN

United States Supreme Court

317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942).

On appeal from the District Court of the United States for the Southern
District of Ohio.

Mr. Justice JACKSON delivered the opinion of the Court.

The appellee filed his complaint against the Secretary of Agriculture of
the United States, three members of the County Agricultural Conservation
Committee for Montgomery County, Ohio, and a member of the State
Agricultural Conservation Committee for Ohio. He sought to enjoin
enforcement against himself of the marketing penalty imposed by the
amendment of May 26, 1941, to the Agricultural Adjustment Act of 1938,
upon that part of his 1941 wheat crop which was available for marketing
in excess of the marketing quota established for his farm. He also
sought a declaratory judgment that the wheat marketing quota provisions
of the Act as amended and applicable to him were unconstitutional
because not sustainable under the Commerce Clause or consistent with the
Due Process Clause of the Fifth Amendment. . . .

The appellee for may years past has owned and operated a small farm in
Montgomery County, Ohio, maintaining a herd of dairy cattle, selling
milk, raising poultry, and selling poultry and eggs. It has been his
practice to raise a small acreage of winter wheat, sown in the Fall and
harvested in the following July; to sell a portion of the crop; to feed
part to poultry and livestock on the farm, some of which is sold; to use
some in making flour for home consumption; and to keep the rest for the
following seeding. The intended disposition of the crop here involved
has not been expressly stated.

In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as
then amended, there was established for the appellee's 1941 crop a wheat
acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of
wheat an acre. He was given notice of such allotment in July of 1940
before the Fall planting of his 1941 crop of wheat, and again in July of
1941, before it was harvested. He sowed, however, 23 acres, and
harvested from his 11.9 acres of excess acreage 239 bushels, which under
the terms of the Act as amended on May 26, 1941, constituted farm
marketing excess, subject to a penalty of 49 cents a bushel, or $117.11
in all. The appellee has not paid the penalty and he has not postponed
or avoided it by storing the excess under regulations of the Secretary
of Agriculture, or by delivering it up to the Secretary. The Committee,
therefore, refused him a marketing card, which was, under the terms of
Regulations promulgated by the Secretary, necessary to protect a buyer
from liability to the penalty and upon its protecting lien.

The general scheme of the Agricultural Adjustment Act of 1938 as related
to wheat is to control the volume moving in interstate and foreign
commerce in order to avoid surpluses and shortages and the consequent
abnormally low or high wheat prices and obstructions to commerce.
Within prescribed limits and by prescribed standards the Secretary of
Agriculture is directed to ascertain and proclaim each year a national
acreage allotment for the next crop of wheat, which is then apportioned
to the states and their counties, and is eventually broken up into
allotments for individual farms. . . .

. . . [The judgment below] permanently enjoined appellants from
collecting a marketing penalty of more than 15 cents a bushel on the
farm marketing excess of appellee's 1941 wheat crop, from subjecting
appellee's entire 1941 crop to a lien for the payment of the penalty,
and from collecting a 15-cent penalty except in accordance with the
provisions of §339 of the Act as that section stood prior to the
amendment of May 26, 1941. The Secretary and his co-defendants have
appealed. . . .

It is urged that under the Commerce Clause of the Constitution, Article
I, §8, clause 3, Congress does not possess the power it has in this
instance sought to exercise. The question would merit little
consideration since our decision in United States v. Darby, . . .
except for the fact that this Act extends federal regulation to
production not intended in any part for commerce but wholly for
consumption on the farm. The Act included a definition of "market" and
its derivatives so that as related to wheat in addition to its
conventional meaning it also means to dispose of "by feeding (in any
form) to poultry or livestock which, or the products of which, are sold,
bartered, or exchanged, or to be so disposed of." Hence, marketing
quotas not only embrace all that may be sold without penalty but also
what may be consumed on the premises. Wheat produced on excess acreage
is designated as "available for marketing" as so defined and the penalty
is imposed thereon. Penalties do not depend upon whether any part of
the wheat either within or without the quota is sold or intended to be
sold. The sum of this is that the Federal Government fixes a quota
including all that the farmer may harvest for sale or for his own farm
needs, and declares that wheat produced on excess acreage may neither be
disposed of nor used except upon payment of the penalty or except it is
stored as required by the Act or delivered to the Secretary of
Agriculture.

Appellee says that this is a regulation of production and consumption of
wheat. Such activities are, he urges, beyond the reach of Congressional
power under the Commerce Clause, since they are local in character, and
their effects upon interstate commerce are at most "indirect." In
answer the Government argues that the statute regulates neither
production nor consumption but only marketing; and, in the alternative,
that if the Act does go beyond the regulation of marketing it is
sustainable as a "necessary and proper" implementation of the power of
Congress over interstate commerce.

The Government's concern lest the Act be held to be a regulation of
production or consumption rather than of marketing is attributable to a
few dicta and decisions of this Court which might be understood to lay
it down that activities such as "production," "manufacturing," and
"mining" are strictly "local" and, except in special circumstances which
are not present here, cannot be regulated under the commerce power
because their effects upon interstate commerce are, as matter of law,
only "indirect." Even today, when this power has been held to have
great latitude, there is no decision of this Court that such activities
may be regulated where no part of the product is intended for interstate
commerce or intermingled with the subjects thereof. We believe that a
review of the course of decision under the Commerce Clause will make
plain, however, that questions of the power of Congress are not to be
decided by reference to any formula which would give controlling force
to nomenclature such as "production" and "indirect" and foreclose
consideration of the actual effects of the activity in question upon
interstate commerce.

At the beginning Chief Justice Marshall described the federal commerce
power with a breadth never yet exceeded. Gibbons v. Ogden, 9 Wheat. 1,
194-195. He made emphatic the embracing and penetrating nature of this
power by warning that effective restraints on its exercise must proceed
from political rather than from judicial processes. Id.at 197.

For nearly a century, however, decisions of this Court under the
Commerce Clause dealt rarely with questions of what Congress might do in
the exercise of its granted power under the Clause and almost entirely
with the permissibility of state activity which it was claimed
discriminated against or burdened interstate commerce. During this
period there was perhaps little occasion for the affirmative exercise of
the commerce power, and the influence of the Clause on American life and
law was a negative one, resulting almost wholly from its operation as a
restraint upon the powers of the states. In discussion and decision the
point of reference instead of being what was "necessary and proper" to
the exercise by Congress of its granted power, was often some concept of
sovereignty thought to be implicit in the status of statehood. Certain
activities such as "production," "manufacturing," and "mining" were
occasionally said to be with the province of state governments and
beyond the power of Congress under the Commerce Clause.

It was not until 1887 with the enactment of the Interstate Commerce Act
that the interstate commerce power began to exert positive influence in
American law and life. This first important federal resort to the
commerce power was followed in 1890 by the Sherman Anti-Trust Act and,
thereafter, mainly after 1903, by many others. These statutes ushered
in new phases of adjudication, which required the Court to approach the
interpretation of the Commerce Clause in the light of an actual exercise
by Congress of its power thereunder.

When it first dealt with this new legislation, the Court adhered to its
earlier pronouncements, and allowed but little scope to the power of
Congress. United States v. E. C. Knight Co., 156 U.S. 1. These earlier
pronouncements also played an important part in several of the five
cases in which this Court later held that Acts of Congress under the
Commerce Clause were in excess of its power.

Even while important opinions in this line of restrictive authority were
being written, however, other cases called forth broader interpretations
of the Commerce Clause destined to supersede the earlier ones, and to
bring about a return to the principles first enunciated by Chief Justice
Marshall in Gibbons v. Ogden, supra.

Not long after the decision of United States v. Knight Co., supra, Mr.
Justice Holmes, in sustaining the exercise of national power over
intrastate activity, state for the Court that "commerce among the states
is not a technical legal conception, but a practical one, drawn from the
course of business." Swift & Co. v. United States, 196 U.S. 375, 398.
It was soon demonstrated that the effects of may kinds of intrastate
activity upon interstate commerce were such as to make them a proper
subject of federal regulation. In some cases sustaining the exercise of
federal power over intrastate matters the term "direct" was used for the
purpose of stating, rather than of reaching, a result; in others it was
treated as synonymous with "substantial" or "material"; and in others it
was not used at all. Of late its use has been abandoned in cases
dealing with questions of federal power under the Commerce Clause.

The Court's recognition of the relevance of the economic effects in the
application of the Commerce Clause . . . has made the mechanical
application of legal formulas no longer feasible. Once an economic
measure of the reach of the power granted to Congress in the Commerce
Clause is accepted, questions of federal power cannot be decided simply
by finding the activity in question to be "production" nor can
consideration of its economic effects be foreclosed by calling them
"indirect." . .

Whether the subject of the regulation in question was "production,"
"consumption," or "marketing" is, therefore, not material for purposes
of deciding the question of federal power before us. That an activity
is of local character may help in a doubtful case to determine whether
Congress intended to reach it. The same consideration might help in
determining whether in the absence of Congressional action it would be
permissible for the state to exert its power on the subject matter, even
though in so doing it to some degree affected interstate commerce. But
even 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."

The parties have stipulated a summary of the economics of the wheat
industry. Commerce among the states in wheat is large and important.
Although wheat is raised in every state but one, production in most
states is not equal to consumption. . . .

The wheat industry has been a problem industry for some years. Largely
as a result of increased foreign production and import restrictions,
annual exports of wheat and flour from the United States during the
ten-year period ending in 1940 averaged less than 10 per cent of total
production, while during the 1920's they averaged more than 25 per cent.
The decline in the export trade has left a large surplus in production
which in connection with an abnormally large supply of wheat and other
grains in recent years caused congestion in a number of markets; tied up
railroad cars; and caused elevators in some instances to turn away
grains, and railroads to institute embargoes to prevent further
congestion. . . .

In the absence of regulation the price of wheat in the United States
would be much affected by world conditions. During 1941 producers who
cooperated with the Agricultural Adjustment program received an average
price on the farm of about $1.16 a bushel as compared with the world
market price of 40 cents a bushel.

Differences in farming conditions, however, make these benefits mean
different things to different wheat growers. There are several large
areas of specialization in wheat, and the concentration on this crop
reaches 27 per cent of the crop land, and the average harvest runs as
high as 155 acres. Except for some use of wheat as stock feed and for
seed, the practice is to sell the crop for cash. Wheat from such areas
constitutes the bulk of the interstate commerce therein.

On the other hand, in some New England states less than one per cent of
the crop land is devoted to wheat, and the average harvest is less than
five acres per farm. In 1940 the average percentage of the total wheat
production that was sold in each state as measured by value ranged from
29 per cent thereof in Winconsin to 90 per cent in Washington. Except
in regions of large-scale production, wheat is usually grown in rotation
with other crops; for a nurse crop for grass seeding; and as a cover
crop to prevent soil erasion and leaching. Some is sold, some kept for
seed, and a percentage of the total production much larger than in areas
of specialization is consumed on the farm and grown for such purpose.
Such farmers, while growing some wheat, may even find the balance of
their interest on the consumer's side.

The effect of consumption of homegrown wheat on interstate commerce is
due to the fact that it constitutes the most variable factor in the
disappearance of the wheat crop. Consumption on the farm where grown
appears to vary in an amount greater than 20 per cent of average
production. The total amount of wheat consumed as food varies but
relatively little, and use as seed is relatively constant.

The maintenance by government regulation of a price for wheat
undoubtedly can be accomplished as effectively by sustaining or
increasing the demand as by limiting the supply. The effect of the
statute before us is to restrict the amount which may be produced for
market and the extent as well to which one may forestall resort to the
market by producing to meet his own needs. That appellee's own
contribution to the demand for wheat may be trivial by itself 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. National Labor Relations Board
v. Fainblatt, 306 U.S. 501, 606, 35 seq.; United States v. Darby, supra,
at 123.

It is well established by decisions of this Court that the power to
regulate commerce includes the power to regulate the prices at which
commodities in that commerce are dealt in and practices affecting such
prices. 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
substantial influence on price and market conditions. This may arise
because being in marketable condition such home-grown 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. Homegrown wheat in this
sense competes with wheat in commerce. The stimulation of commerce is a
use of the regulatory function quite as definitely as prohibitions or
restrictions thereon. This record leaves us in no doubt that Congress
may properly have considered that wheat consumed on the farm where
grown, if wholly outside the scheme of regulation, would have a
substantial effect in defeating and obstructing its purpose to stimulate
trade therein at increased prices. . . .

Reversed.

UNITED STATES v. ALFONSO LOPEZ, Jr.

United States Supreme Court

April 26, 1995

REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR,
SCALIA, KENNEDY, and THOMAS, J.J., joined. THOMAS, J., filed a
concurring opinion. BREYER, J., filed a dissenting opinion, in which
STEVENS, SOUTER, and GINSBERG, J.J., joined.

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). 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 (initially
with violating a Texas weapons statute, then) with violating the
Gun-Free School Zones Act of 1990, 18 U.S.C. §922(q)(1)(A).

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 U.S. District Court
denied the motion, concluding that §922(q) "is a constitutional
exercise of Congress' well-defined power to regulate activities in and
affecting interstate commerce, and the 'business' of elementary, middle
and high schools * * * * affects interstate commerce." * * * *
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 U.S. Court of Appeals for the Fifth Circuit agreed and
reversed respondent's conviction. It held that * * * * "section
922(q), in the full reach of its terms, is invalid as beyond the power
of Congress under the Commerce Clause." * * * * 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. 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
(1991). * * * *

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 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." Gibbens v. Ogden, 9 Wheat. 1 (1824).
The Gibbens 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 [the words of the Commerce

Clause give Congress power to regulate] 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. "Comprehensive as the word 'among' is, it may very

properly be restricted to that commerce which concerns more States

than one. . . . The enumeration [of the powers of Congress] 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. [here Chief Justice
Rehnquist cites the decisions in a line of 19th Century cases to
establish this point]. 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 (1942),
describing the development of Commerce Clause jurisprudence.

In 1887, Congress enacted the Interstate Commerce Act, and in 1890,
Congress enacted the Sherman Antitrust Act. 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."
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.

In A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495 (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." Activities that affected interstate commerce directly were
within Congress' power; activities that affected interstate commerce
indirectly were beyond Congress' reach. 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."

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. ("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.

In Wickard v. Filburn, 317 U.S. 111 (1942), the Court upheld the
application of amendments to the Agricultural Adjustment Act of 1938 to
the production and consumption of homegrown wheat. 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 and Laughlin Steel * * * * 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 and 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
effectually obliterate the distinction between what is national and what
is local and create a completely centralized government." 301 U.S. at
37. * * * * 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).

[TO THE STUDENT: Please note that what Chief Justice Rehnquist is
saying is that the development of the Commerce Clause cases in the 20th
Century is one in which the Supreme Court has consistently upheld the
regulatory power of Congress, even where activity conducted entirely
within a state has a very small effect on interstate commerce, but the
Court will make such broad holdings only where the federal regulation
itself has a substantial relation to commerce. This will become
important when the decision turns to the question of whether or not the
Gun-Free School Zones Act is a statute that substantially concerns
itself with commercial activity.]

Consistent with this structure, we have identified three broad
categories of activity that Congress may regulate under its commerce
power. * * * * First, Congress may regulate the use of the channels
of interstate commerce. See, e.g., Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241 (1964) 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."). 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 com only from intrastate
activities. See, e.g., Shreveport Rate Cases, 234 U.S. 342 (1914).
Finally, Congress' commerce authority includes the power to regulate
those activities having a substantial relation to interstate commerce,
and those activities that substantially affect interstate commerce,
Katzenbach v. McClung, 379 U.S. 294 (1964). Within this final category,
* * * * we conclude * * * * that the proper test requires an
analysis of whether the regulated activity "substantially affects"
interstate commerce.

* * * *

We now turn to consider the power of Congress, in the light of this
framework, to enact §922(q). The first two categories of authority may
be quickly disposed of: §922(q) is not a regulation of the use of the
channels of interstate commerce, * * * * nor can §922(q) be
justified as a regulation by which Congress has sought to protect an
instrumentality of interstate commerce or a thing in interstate
commerce. Thus, if §922(q) is to be sustained, it must be under the
third category as a regulation of an activity that substantially affects
interstate commerce.

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, Katzenbach v. McClung, inns and hotels
catering to interstate guests, * * * * and production and
consumption of home-grown wheat, Wickard v. Filburn. 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.

[Here, the decision discusses the fact pattern of the Wickard case, in
which a federal law, the Agricultural Adjustment Act of 1938,
restricting the cultivation of grain was upheld as permitting Congress,
under the Commerce Clause, to penalize an Ohio farmer who grew wheat
solely for use on his small farm, but who did so in violation of the
federal restrictions.]

Section 922(q) 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. Section 922(q) 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 or or are connected with a commercial
transaction, which viewed in the aggregate, substantially affects
interstate commerce.

Secondly, §922(q) contains no jurisdictional element which would
ensure, through case-by-case inquiry, that the firearm possession in
question affects interstate commerce. * * * * [Section] 922(q) has
no express jurisdictional element which might limit its reach to a
discrete set of firearm possessions that additionally have an explicit
connection with or effect on interstate commerce.

* * * *

[T]he 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. See McClung, 379 U.S. at
304 * * * *. 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 §922(q) 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, would
have an adverse affect on the Nation's economic well-being. As a
result, the Government argues that Congress could rationally have
concluded that §922(q) substantially affects interstate commerce.

We pause to consider the implications of the Government's arguments.
The Government admits, under its "costs of crime" reasoning, that
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. Similarly, under the Government's
"national productivity" reasoning, Congress could regulate any activity
that it found was related to the economic productivity of individual
citizens; family law (including marriage, divorce, and child custody),
for example. Under the theories that the Government presents in support
of §922(q), 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 (under its
commerce power).

* * * *

[I]f Congress can, pursuant to its Commerce Clause power, regulate
activities that adversely affect the learning environment, then, a
fortiori, it also can regulate the educational process directly.
Congress could determine that a school's curriculum has a "significant"
effect on the extent of classroom learning. As a result, Congress could
mandate a federal curriculum for local elementary and secondary schools
because what is taught in local schools has a significant "effect on
classroom learning," and that, in turn, has a substantial effect on
interstate commerce.

* * * *

[The Government's reasoning] lacks any real limits because, depending on
the level of generality, any activity can be looked upon as commercial.
Under the dissent's rationale, Congress could just as easily look at
child rearing as "falling on the commercial side of the line" because it
provides a "valuable service--namely, to equip [children] with the
skills they need to survive in life, and more specifically, in the
workplace."

* * * *

Admittedly, a determination whether an intrastate activity is commercial
or noncommercial may in some cases result in legal uncertainty. But, so
long as Congress' authority is limited to those powers enumerated in the
Constitution, and so long as those enumerated powers are interpreted as
having judicially enforceable outer limits, congressional legislation
under the Commerce Clause always will engender "legal uncertainty." As
Chief Justice Marshall stated in McCulloch v. Maryland, 4 Wheat. 316
(1819):

"The [federal] government is acknowledged by all to be one

of enumerated powers. The principle, that it can exercise only the

powers granted to it ... is now universally admitted. But the question

respecting the extent of the powers actually granted, is perpetually

arising, and will probably continue to arise, as long as our system
shall

exist." Id., at 405.

* * * *

Congress has operated within this framework of legal uncertainty ever
since this Court determined that it was the judiciary's duty "to say
what the law is." Marbury v. Madison, 1 Cranch. 137 (1803). Any
possible benefit from eliminating this "legal uncertainty" would be at
the expense of the Constitution's system of enumerated powers.

* * * *

These are not precise formulations, and in the nature of things they
cannot be. But we think they point the way to a correct decision of
this case. The possession of a gun in a local school zone is in no
sense an economic activity that might, through repetition elsewhere,
substantially affect any sort of interstate commerce. Respondent was a
local student at a local school; there is no indication that he had
recently moved in interstate commerce, and there is no requirement that
his possession of the firearm have any concrete tie to 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. Admittedly, some of our prior
cases have taken long steps down that road, giving great deference to
congressional action * *

* * but we decline here to proceed any further. To do so would
require us to conclude that the Constitution's enumeration of powers
does not presuppose something not enumerated * * * * and that there
never will be a distinction between what is truly national and what is
truly local. This we are unwilling to do.

For the foregoing reasons the judgment of the Court of Appeals is

Affirmed.