The Right Results for All the Wrong Reasons: An Historical and Functional Analysis of the Commerce Clause
Two football players rape an eighteen-year-old college student. A high-school senior carries a concealed handgun into a school building.' An arsonist burns down a trailer occupied by an interracial couple. An armed robber, after burglarizing the home of a couple and their handicapped child, speeds off in the family's Suburban.' All of these crimes are local in nature. It seems obvious that each perpetrator would be hauled down to the local courthouse and indicted under applicable criminal law. One naturally assumes that the law would be a state statute. Yet, these perpetrators will not only face state criminal prosecution but also trial and punishment under a federal criminal statute. In response to public outrage at crime and the need to control persons who commit these crimes, Congress enacted an array of national criminal statutes to punish such criminals. Without a national police power, Congress purportedly passed such laws under the power granted to it by the Commerce Clause." Good causes for legislation-but is it constitutional? The Supreme Court attempted to provide an answer, or at least part of one, in the 1995 case United States v. Lopez. The Court announced the first limitation on the Commerce Clause power since that power reached its zenith when the Court upheld the 1964 Civil Rights Act as a valid exercise of Congress's power under the Commerce Clause.! However, Lopez did not clearly explain the standard that lower courts should apply when faced with a lack-of-commerce-clause- power challenge. The absence of a clear standard leaves courts with three choices: (1) construe the Commerce Clause as if Lopez never existed; (2) apply Lopez stringently to invalidate statutes; or (3) apply Lopez in a manner that generally finds statutes constitutional. Lower courts have chosen either option one or three, with only a few exceptions.' Courts' hesitancy to find statutes unconstitutional implies no real limit on Congress's Commerce Clause power.
Lopez surprised many scholars, prompting a rampage of commentary on the decision and the constitutionality of particular federal statutes.'? This Note concentrates on two federal statutes that have recently faced Commerce Clause challenges: the Violence Against Women Act" ('VAWA"), now on certiorari to the United States Supreme Court, and the Clean Water Act. It attempts to find a common thread among federal criminal statutes in order to create a principled standard for interpretation of the Commerce Clause. This Note recommends the use of functional analysis to interpret the Constitution's grant of power to Congress under the Commerce Clause. Without a clear, functional standard, Congress will continue to enact federal criminal statutes that invade the police power of the states and generate more backlog in the federal courts under the guise of a sweeping Commerce Clause. The Commerce Clause vests power in the national government to regulate only when necessary to maintain or respond to an integrated national economy. The public appeal of legislation on "good causes" should not override the constitutional limitations of the Commerce Clause.