Declausing Congress

0 Comments | Insight on the News, Sept 4, 1995 | by Susan Crabatree

It was another midsummer subcommittee hearing with an unpromising title: "The Federalism Debate: Why Doesn't Washington Trust the States?" In the languorous Washington humidity, members of the House engaged in lukewarm exchange with a panel of constitutional scholars. But one speaker was determined to turn up the heat. "Most of what you are doing today is illegitimate!" charged Roger Pilon, a director at the Cato Institute, a libertarian think tank. "It is a Congress without clothing and is increasingly recognized as such."

Pilon's voice resounds beyond the halls of Congress as more and more Americans invert the subcommittee's question, "Why doesn't Washington trust the states?" to "Why don't the states trust Washington?" In April, the Supreme Court added judicial authority to popular sentiment by striking down 5-4 a federal law banning gun possession within 1,000 feet of a public school: The court ruled that the federal law duplicated and interfered with a state law already in effect. United States vs. Lopez marked the first time since the New Deal that the high court invalidated legislation enacted under the Constitution's "commerce clause." The decision has members of Congress scurrying to make their bills comply with the court's interpretation.

Since the 1930s, Congress has cited the commerce clause -- "the power to regulate commerce with foreign nations, and among the several states" -- to justify a seemingly boundless supply of legislation. "The need for congressional cognizance of federalism as an important element of the Constitution is highlighted in United States vs. Lopez," says James Lack, president-elect of the National Conference of State Legislatures. Associate Justice Clarence Thomas, in a concurring opinion, argued for an even broader re-examination of the commerce clause, noting the 10th Amendment's intimate connection with freedom: The states should act as barriers to federal intrusion and outright oppression.

Indeed, the court's ruling has encouraged some of the strongest advocates of congressional reform, including Sen. Hank Brown, a Republican from Colorado, to renew their efforts. Brown is working on a bill aimed at limiting Congress' ability to supersede state authority with new laws and regulations. Tentatively titled "The Federalism Act of 1995," it would require Congress to notify states when new federal laws preempt state laws and provide justification under the 10th Amendment for such action.

"Lopez will clean up the legislative procedure, it will ensure that Congress crosses all of its t's and dots all of its i's" says Mark Tushnet, a Georgetown University law professor who notes that his colleagues are resurrecting long-dormant lectures on the commerce clause. But Dan Greenberg, a congressional analyst at the Heritage Foundation, believes any changes in legislation grounded on the commerce clause will be gradual. "It won't be as dramatic as flipping a light switch," he says. "It will be like packing more clothes into a smaller and smaller suitcase."

Sen. Herb Kohl, a Democrat from Wisconsin, has started packing -- revising his Gun-Free School Zones Act to address the constitutional concerns expressed in Lopez. "What we have done to ensure this result is simple and sufficient," he says. "In every prosecution under the act, the government will have to prove that the gun traveled in or affected interstate commerce." Kohl believes this is achieved easily: "Almost every gun is made with raw material from one state, assembled in a second state and transported to the school yards of yet another state." And Kohl offers his own interpretation of the Constitution's intent: "Our Founding Fathers were concerned with 'common sense,' not with alarmist predictions about the fate of federal-state relations," he says.

National organizations determined to stop the spread of guns in schools claim that a federal law is necessary to plug state loopholes and make it possible to put violators behind bars for as many as five years. "A national law does not encroach on state law," says Dennis Henigan, general counsel for Handgun Control, Inc., headquartered in Washington. "The Gun-Free School Zones Act gives prosecutors the flexibility to bring violators to justice under either state or federal statutes, whichever is appropriate or tougher."

According to Pilon, however, Lopez is a matter of principle, not policy. "It's not about guns, it's really about limits on government," he tells Insight, expounding on his fiery outburst during the subcommittee hearing. Pilon traces the rise of the commerce clause to the New Deal, when Congress and President Roosevelt undertook programs that many critics still believe were unconstitutional. "President Roosevelt acknowledged as much in a 1935 letter to the chairman of the House Ways and Means Committee," he says. "Roosevelt wrote, 'I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.'"

When the Supreme Court found that Congress indeed had exceeded its authority, Roosevelt threatened to pack the court with six additional members. The famous "switch in time that saved nine" refers to the court's reinterpretation of the commerce clause in the 1937 National Labor Relations Board vs. Jones & Laughlin Steel case. The court upheld the NLRB's interference in local union-employee relations on the basis that labor affects the stream of commerce. In the midst of public and congressional debate about Roosevelt's court-packing plan, the court said, "The power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small...." Thus, says Pilon, the modern regulatory state was born.