Jacob Sullum

Hoyt is hoping the 5th Circuit will reconsider its position in light of a 2000 Supreme Court decision that overturned part of the Violence Against Women Act (VAWA). The Court ruled that Congress overstepped its authority under the Commerce Clause by establishing a federal civil remedy for victims of "gender-motivated violence."

"The Constitution requires a distinction between what is truly national and what is truly local," the Court said, "and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct's aggregate effect on interstate commerce."

The VAWA decision built on U.S. v. Lopez, a 1995 ruling in which the Supreme Court agreed with the 5th Circuit that the Commerce Clause did not authorize Congress to ban gun possession in school zones. Lopez was a marked departure from a series of decisions beginning in the 1930s that interpreted the Commerce Cause broadly enough to cover pretty much anything Congress decided to do.

Yet the Supreme Court still has not repudiated the doctrine that Congress may regulate intrastate, noncommercial activity that has a "substantial effect" on interstate commerce. Since substantial effects are in the eye of the beholder, this test leads to unpredictable, puzzling distinctions.

It's hard to understand, for example, how the 5th Circuit, which overturned the Gun-Free School Zones Act in 1993, could uphold the FACE Act four years later. The legitimacy of both laws hinges on tenuous, indirect connections between local actions and interstate commerce.

There is no subject on which Congress might try to legislate for which it could not posit such a connection. As Justice Clarence Thomas noted in his concurring opinion in Lopez, the "substantial effect" test, "if taken to its logical extreme, would give Congress a 'police power' over all aspects of American life."

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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