First Among Equals (33 page)
The New Deal Court, however, was unmoved and rendered a unanimous decision against the small farmer in Ohio. For the justices, it was enough that the regulated activity be one that “substantially affects” commerce. The qualifier was important: An orange tree beside your driveway might not be “interstate commerce,” as long as you harvest the oranges and squeeze them at home. But Filburn's winter-wheat farming was different. It could substantially affect commerce—and therefore could be an object of congressional regulation—if many other farmers did as he did. And in fact many did: Roughly 20 percent of all wheat grown in the nation did not leave the farm but was used and consumed at home. The actions of these farmers, taken together, affected overall demand for wheat and in turn its price.
Thus was born the “cumulative effects” approach to determining whether an activity qualified as interstate commerce and could be regulated by Congress. In
Lopez,
this definition of interstate commerce was advanced in behalf of the Gun-Free School Zones Act. Antonio Lopez had in his possession, while on school grounds, a .38-caliber handgun. Could he be regarded in the same manner as the New Deal Court had viewed Roscoe Filburn? That is, might a cumulative-effects analysis of Lopez's gun possession lead to the conclusion that his activity could be regulated?
For Chief Justice Rehnquist, the two cases were not close. Rehnquist juxtaposed Filburn's activity to Lopez's. The former, he said, involved commerce while the latter obviously did not. Moreover, on its own terms, the Gun-Free School Zones Act did not have anything to do with commerce.
The chief justice discussed the fact that in passing the law Congress had failed to show that gun possession near schools had a “substantial effect” on interstate commerce. Rehnquist said that findings to this effect weren't necessary and emphasized that Congress may legislate however it pleases. But the lack of findings made it harder, he continued, for the Court to review the constitutionality of the statute. Congress had provided nothing to explain why it believed it was acting on the basis of its enumerated power to regulate interstate commerce.
Rehnquist then responded to what defenders of the law argued: that possession of firearms does in fact substantially affect commerce since an educational process handicapped by violence will result in a less productive citizenry. This proved too much, the chief concluded, for Congress could on this argument regulate virtually anything in education or in law enforcement. It could even decide to run the nation's schools. But that could not be what the Constitution permits. The Commerce Clause was not meant to be a license for Congress to exercise a national police power.
Rehnquist's opinion may well have reflected a concern he had expressed in his annual state-of-the-judiciary statements, namely that the modern Congress often rushes to pass a law in order to appear responsive to whatever problem seems to have caught the public's attention. As a result, Congress has federalized problems that historically were addressed by cities and counties. The problem of school violence fell into this category. Congress had deemed it a problem requiring a national response. And by passing the Gun-Free School Zones Act, Congress basically placed the burden on the federal courts, thus expanding their jurisdiction. The irony attending the passage of the Gun-Free School Zones Act was that state legislatures had not exactly ignored the problem of school violence. The states, too, had responded with their own laws.
These political facts likely informed the Court's deliberations. One justice, however, remained entirely on a theoretical level. Justice Clarence Thomas, who emerged during the 1990s as the most ardent defender of a pristine approach to constitutional interpretation, crafted a remarkable opinion in which he hammered away at what he saw as modern-day revisionism. The honest justice, in his view, had to be willing to admit that since the New Deal the Court had misinterpreted what the Commerce Clause originally meant. Justice Thomas wanted the Court to return to basics. The text of the Constitution, he said, confers on Congress the power to regulate commerce “among the states.” Commerce, he continued, had a well-understood and limited meaning when the Constitution was framed and ratified. In addition, the structure of the Constitution likewise signaled a limited power by Congress. The Court had interpreted the power correctly for 130 years, until the New Deal, when a Court stocked with Roosevelt appointees removed the limits on the power by embracing the notion that anything that “substantially affects” commerce may be regulated by Congress. That doctrine, he said, was at odds with the original meaning of the Commerce Clause and would permit Congress to become the national policeman as well as the national educator.
Justice Thomas knew, however, that the pristine past was lost. No one was willing to reopen settled law, and stability, he also knew, was important in the law. His approach would be radical, and this was a Court inclined to moderation.
The two justices who generally ensured the Court's moderation were O'Connor and Kennedy. Precisely because of their moderation they were unwilling to accept Justice Thomas's invitation to reopen long-settled issues. For them,
doctrinal stability overrode the argument that the New Deal approach to enumerated powers needed to be revisited.
At the same time, O'Connor and Kennedy were unwilling to ignore federalism concerns and simply allow Congress to do as it wished. Doing that would have been, for them, an immoderate position. The states were an important feature of the constitutional design, they said, and Congress historically had made a genuine effort to determine the impact of a proposed law upon the states. They cited, for example, the civil rights legislation of the 1960s. Congress studied the pertinent issues carefully and came to a considered conclusion of how to legislate on behalf of civil rights without upsetting the delicate balance of power between the states and Washington. In more recent years, the two justices continued, Congress in a number of instances had not shown similar care. The federal courts could not fail to respond if it could be shown that Congress had crossed constitutional lines. That would be a dereliction of judicial duty.
Kennedy and O'Connor joined the majority because they found constitutional lines that Congress had crossed. The Gun-Free Schools Zone Act, they decided, invaded what had traditionally been a state function and local prerogative. Nor was it a law, in their view, that the Commerce Clause authorized. Gun possession in or near a school, the justices said, was dangerous and criminal (under state law), but it was not a commercial activity or tied closely, like Roscoe Filburn's wheat-farming years earlier in Ohio, to commercial arrangements.
Kennedy and O'Connor noted that the dissenters in
Lopez,
like the majority ten years earlier in
National League of Cities,
believed that because the economy was seamless and not a respecter of state lines, Congress could regulate almost anything. To Kennedy and O'Connor, the dissenters' view proved too much. It would not protect federalism but promote centralization and thus erode traditional state functions.
The four dissenters were Justices Stevens, Souter, Ginsburg, and Breyer. Recall that Stevens and Souter were appointed by Republican presidents (Nixon and Bush respectively), Ginsburg and Breyer by President Clinton. Souter and Breyer both filed opinions. Souter concluded that Congress had simply exercised a power confided to it by the Constitution. But this begged the question. The power Congress has to regulate interstate commerce is not a power that permits Congress to decide what is to count as interstate commerce. If Congress declares napping or snoring to be “commerce,” that surely does not make it so. Souter's opinion held no allure for O'Connor and Kennedy, because it contained no principle limiting Congress. Souter invoked judicial restraint, but his version would allow Congress under the rubric of regulating commerce to do anything it wanted.
Justice Breyer, likewise, said nothing to allay the moderates' concern about centralization of power. Because the problem of school violence was so acute, said Breyer, Congress could not be faulted for trying to do something about it. Congress, he continued, was on solid ground in asserting that education affected the nation's economic prosperity. Congress could nationalize education, he said.
Two days after issuing its decision in
Lopez,
the Court handed down its judgment in another federalism case,
Printz v. United States.
In 1983 Congress had drawn on its power to regulate interstate commerce to pass the Brady Bill, named for White House press secretary James Brady. Brady had been gravely wounded by John Hinckley during the latter's attempt in March 1981 to assassinate President Reagan. The law directed local law-enforcement officials to conduct background checks on individuals attempting to buy weapons. Two sheriffs, one from Arizona and the other from Montana, sued, claiming that Congress had exceeded its powers. They did not say that Congress could not, under its power to regulate commerce, require gun registration. Their argument, rather, was that Congress had stepped over the federalism line by ordering state and local officials to become firearms registrars for the federal government. In violation of federalism, Congress had commandeered the officials of a sovereign state.
Once again, the Court was deeply fractured, dividing as in other federalism cases along the same 5–4 lines. This time the most quotable member of the majority, Justice Scalia, shouldered the responsibility of writing the Court's opinion. Scalia, as was his wont, became a teacher of American history. Never had Congress, he said, ordered state and local law-enforcement officials to carry out federal functions. To the contrary, history showed that Congress had always
asked
state officials to be of assistance. Moreover, Scalia continued, federalism was, for the framers, a principal means of securing liberty. For Congress to compel state officials to execute federal law was as abhorrent to liberty as would be an effort by the state governments to require federal officials to carry out their laws.
O'Connor's struggle to achieve balance and moderation was again on display. She wrote a short, concurring opinion in which she said that the Court's decision should not prevent Congress from achieving its goals. The problem as she saw it was that Congress had gone too far. It had been, in short, immoderate.
The signature issue of the Rehnquist Court—the protection of the federal structure ordained at the founding—was secure. The moderates would not be swayed, but they would continue their search for theory—legal principles and doctrines that would help explain more fully and persuasively the lines they were ardently determined to draw between what is national and what is local in a federal republic.
P
RESIDENTS
: T
HE
C
OURT AND
THE
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XECUTIVE
B
RANCH
C
ONGRESS LEGISLATES IN ITS PROPER DOMAIN
. Unless the president vetoes the law (subject to Congress's override) or the Constitution (as interpreted by the Supreme Court) stands in the way, Congress can do as it sees fit.
But the president is different. At every turn, the president is constrained by a body of law, as passed by Congress, and the Constitution, as interpreted by the Supreme Court. Uniquely in our system of government, the president is subordinate to the two other branches. The irony is that the American people tend, naturally, to view the president as uniquely powerful—as supreme—in our structure of government. This is especially so in a time of national tragedy, such as that ushered in by the terrorist attacks of September 11, 2001, and the ensuing war against terrorism. But this perception is imperfect at best. At critical junctures in our history, the Supreme Court has served as the final arbiter of what the president can lawfully do.
This principle was stated forcefully—and definitively—by the Supreme Court the year before Earl Warren was appointed chief justice. The setting was the Korean Conflict. Labor strife in the steel industry had led to walkouts, slowdowns, and threats of strikes, which threatened the production of steel vital to the war effort. In a bold stroke, President Truman directed the secretary of commerce to take control of the steel mills to keep them in production. In a case challenging Truman's action, the Supreme Court held that the president had exceeded his constitutional and statutory powers. The Court considered in detail the role of Congress, which had passed various laws permitting the president to take certain actions to restore labor peace. Canvassing a wide array of such laws, the Court found no support for the president taking, even in a time of war, the extraordinary step of temporarily seizing control of private industry. President Truman dutifully obeyed the Supreme Court's command. The Steel Seizure case, as it was called, confirmed that the president was ultimately subordinate to Congress and the Supreme Court in the conduct of domestic affairs.
During his tenure as chief justice, Earl Warren had little occasion to confront delicate issues concerning the role and scope of presidential power. But his successor, Warren Burger, was confronted with pivotal cases concerning executive power. The setting was Watergate, and the issue involved the Nixon tapes. The attention of the country was riveted on the drama, with impeachment looming. Senator Howard Baker, the Tennessee Republican and future majority leader, during the hearings conducted by the Senate Select Committee on Watergate, asked the famous question, “What did the president know, and when did he know it?” Was the president aware of the break-in by political operatives into the Watergate offices of the Democratic National Committee? Even if he had no advance knowledge, did the president participate in a cover-up scheme that might constitute an obstruction of justice?
Two investigations were underway on parallel tracks. Senator Sam Ervin of North Carolina presided over the Special Committee. Television brought the colorful chairman, his committee members, and a string of witnesses before the nation. John Dean, counsel to the president, broke ranks with the White House and testified, in effect, that President Nixon had been directly involved in a conspiracy to obstruct justice. Meanwhile, just five blocks away, a federal grand jury was investigating. Due to laws requiring grand jury secrecy, the specifics of what was occurring in the grand jury were unknown to the outside world. But in the quiet of the courthouse halls was brewing a legal dispute that at once demonstrated the supremacy of the High Court's authority and spelled doom for the Nixon presidency.
