The Honorable Judge
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Join Date: Apr 2010
Re: Should the US federal government step in and regulate boxing?
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. See tr. Of oral arg. 8-9. Similarly, under the government's "national productivity" reasoning, congress could regulate any [ united states v. Lopez, ___ u.s. ___ (1995) , 16] 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.
Although justice breyer argues that acceptance of the government's rationales would not authorize a general federal police power, he is unable to identify any activity that the states may regulate but congress may not. Justice breyer posits that there might be some limitations on congress' commerce power such as family law or certain aspects of education. Post, at 10-11. These suggested limitations, when viewed in light of the dissent's expansive analysis, are devoid of substance.
Justice breyer focuses, for the most part, on the threat that firearm possession in and near schools poses to the educational process and the potential economic consequences flowing from that threat. Post, at 5-9. Specifically, the dissent reasons that (1) gun-related violence is a serious problem; (2) that problem, in turn, has an adverse effect on classroom learning; and (3) that adverse effect on classroom learning, in turn, represents a substantial threat to trade and commerce. Post, at 9. This analysis would be equally applicable, if not more so, to subjects such as family law and direct regulation of education.
For instance, if 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 [ united states v. Lopez, ___ u.s. ___ (1995) , 17] "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," cf. Post, at 9, and that, in turn, has a substantial effect on interstate commerce.
Justice breyer rejects our reading of precedent and argues that "congress . . . Could rationally conclude that schools fall on the commercial side of the line." post, at 16. Again, justice breyer's rationale 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 "fall[ing] 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." ibid. We do not doubt that congress has authority under the commerce clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process. That authority, though broad, does not include the authority to regulate each and every aspect of local schools.
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." post, at 17. 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 [ united states v. Lopez, ___ u.s. ___ (1995) , 18] 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.
See also gibbons v. Ogden, 9 wheat., at 195 ("the enumeration presupposes something not enumerated"). The constitution mandates this uncertainty by withholding from congress a plenary police power that would authorize enactment of every type of legislation. See u.s. Const., art. I, 8. 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, 177 (1803) (marshall, c. J.). Any possible benefit from eliminating this "legal uncertainty" would be at the expense of the constitution's system of enumerated powers.
In jones & laughlin steel, 301 u.s., at 37 , we held that the question of congressional power under the commerce clause "is necessarily one of degree." to the same effect is the concurring opinion of justice cardozo in schecter poultry:
"there is a view of causation that would obliterate the distinction of what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours `is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.'" 295 u.s., at 554 (quoting united states v. A.l.a. Schecter poultry corp, 76 f.2d 617, 624 (ca2 1935) (l. Hand, j., concurring)).
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 [ united states v. Lopez, ___ u.s. ___ (1995) , 19] 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. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, 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, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & laughlin steel, supra, at 30. This we are unwilling to do.
For the foregoing reasons the judgment of the court of appeals is