United States v. Lopez

In United States v. Lopez (1995), 5 to 4, the Court struck down the Gun-Free School Zones Act and named three categories Congress may regulate: the channels of interstate commerce, its instrumentalities and persons or things in it, and activities that substantially affect it; possessing a gun near a school was not economic activity.

For 58 years after 1937, the Court did not strike down a federal law as beyond the commerce power. Many observers thought the clause had no judicial limits left. In 1995 that changed. Wickard and the civil rights cases were still good law; the question was whether there was anything the commerce power could not reach.

Why it works

Why draw a line here? If the government's argument prevailed, Congress could regulate any activity, from family law to education, by pointing to some chain of effects on the economy. That would erase the difference between enumerated powers and the states' general police power, which the Constitution assumes. The Court chose economic activity as the category that can be aggregated, because that keeps Wickard and the civil rights cases while marking an outer edge.

The three categories from Lopez.
Lopez category	What it covers	Example
1. Channels of interstate commerce	The routes: highways, waterways, airways, and the movement along them	Barring stolen goods from being shipped across state lines
2. Instrumentalities of interstate commerce, and persons or things in it	The means of commerce: vehicles, planes, trains, and goods and people moving	Safety rules for interstate trucks
3. Activities that substantially affect interstate commerce	Activities with a substantial relation to commerce (economic activity may be aggregated)	Wickard's wheat; labor relations at a steel mill

Key idea

United States v. Lopez (1995), 5 to 4: the Gun-Free School Zones Act exceeded the commerce power. Congress may regulate (1) the channels of interstate commerce, (2) its instrumentalities and persons or things in it, and (3) activities that substantially affect it. Possessing a gun near a school is not economic activity.

Worked example: Sorting into the categories

Which Lopez category supports each law? (a) A ban on transporting kidnapped people across state lines. (b) Rules on airplane maintenance. (c) Rules on hotel discrimination against interstate travelers.

(a) Keeps the channels of commerce free of harmful uses: category 1.
(b) Protects an instrumentality of commerce (airplanes): category 2.
(c) Regulates an activity that substantially affects interstate travel (Heart of Atlanta): category 3.

Answer: 1, 2 and 3.

Worked example: Why the Act failed category 3

List the features the majority relied on.

The activity, possession of a gun, is not commercial or economic.
The Act had no jurisdictional element requiring a link to commerce in each case.
Congress made no findings on the effect on commerce (not required, but helpful).
The link to commerce depended on "piling inference upon inference," which would justify regulating anything.

Answer: Noneconomic activity, no jurisdictional hook and an attenuated chain of effects.

Common mistake

Mixing up the three Lopez categories. Channels are the routes (highways, waterways); instrumentalities are the vehicles and things moving on them; the third category is activities with substantial effects. Check: is the law about the road, about what travels on it, or about an activity elsewhere that affects it?

Justice Kennedy, joined by Justice O'Connor, concurred to stress the states' role in education and the stability of earlier precedent. Justice Thomas concurred to urge a return to the clause's original meaning, trade and transportation. Read the framers' Federalist No. 45 on "few and defined" federal powers alongside the opinion.

From 1937 to 2012.

This is an educational course, not legal advice.

United States v. Lopez

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