Violence Against Women Act: Recognizing A Federal Civil Right to be Free from Violence, The

Georgetown Law Journal, Feb 1998 by McTaggart, Kelli C

The second hurdle the VAWA must overcome is the distinction between commercial and noncommercial activity. According to the Court, only commercial activity may be regulated under the Commerce Clause. In the VAWA, as in the Gun Free School Zones Act in Lopez, the activity being regulated (genderbased violence) is not a commercial or economic activity "however broadly one might define those terms."68 If private, intrastate activity is not commercial, then it cannot be aggregated-like the wheat regulated in Wickard-to determine its effect on commerce. Taken at face value, therefore, the VAWA appears to fail to clear this hurdle.

This distinction, however, may not be as critical to the Lopez holding as it first appears. The Court recognized that "whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty."69 And many of the cases the Court cites as proper exercises of Congress's Commerce Clause authority involved activities that are not purely "commercial," but noncommercial activities closely linked to commerce. For example, in Wickard, it was not the private wheat growing for personal consumption that made the activity commercial, but the fact that growing it would prevent Wickard from buying other wheat on the open market. In Perez v. United States,70 the activity being regulated was violent behavior in credit collection. In Katzenbach v. McClung7 and Heart of Atlanta Motel, Inc. v. United States,72 the activity being regulated was racial discrimination. All of these cases involved private, noncommercial activities which in turn had an effect on interstate commerce.

In addition, Lopez marked the first time that the Court formally distinguished between commercial and noncommercial activity,73 and the two dissenting opinions make powerful arguments why this dichotomy cannot be maintained. As Justice Breyer noted, "[a]lthough the majority . .. attempts to categorize Perez, McClung, and Wickard as involving intrastate `economic activity,'. . . the Courts that decided each of those cases did not focus upon the economic nature of the activity regulated. Rather, they focused upon whether that activity affected interstate or foreign commerce."74 Justice Breyer did not see how the facts at issue in Lopez could be distinguished from McClung or Perez solely because the activity being regulated was noncommercial.75

These two aspects of the Court's decision will be discussed further, as the next section will turn to various district court rulings on the VAWA in light of Lopez, and will discuss how each dealt with these two seemingly critical aspects of the Court's decision.76

C. THE VAWA: CHALENGES IN HTE COURTS

The first case to rule on the constitutionality of the VAWA was Doe v. Doe.77 In Doe, the plaintiff sued for physical and mental abuse by her husband, which including kicking her, throwing sharp objects at her, and threatening to kill her.78

The Doe court considered the VAWA a Lopez category three case and approached the problem by asking two questions: (1) was there a "rational basis" for Congress to conclude that the activity sufficiently affected interstate commerce; and if so, (2) was the means chosen reasonably adapted to accomplish a constitutionally permissible end?79 The court held that the Act was a valid exercise of Congress's Commerce Clause power.so The author of the opinion, Judge Arterton, did not focus on the commercial/noncommercial distinction or the jurisdictional element requirement as developed in Lopez. Instead, she focused on the congressional findings and concluded that there was a rational basis for Congress to conclude that gender-based violence affects interstate commerce.81