United States v. Lopez - Oral Argument

Argument of Drew S. Days, III

Chief Justice Rehnquist: We'll hear argument next in Number 93-1260, United States v. Alfonso Lopez, Jr.--

General Days.

Mr. Days: Thank you, Mr. Chief Justice, and may it please the Court:

In this case, the court of appeals has taken the extraordinary step of invalidating an act of Congress as being beyond its power under the Commerce Clause.

The act in question, known as the Gun-Free School Zones Act of 1990, makes it unlawful for any individual knowingly to possess a firearm within a distance of 1,000 feet from the grounds of an elementary or secondary school.

The court of appeals held the statute unconstitutional because neither the statute nor its legislative history contained express congressional findings identifying the nexus between interstate commerce and gun possession in schoolyards.

The court of appeals reached its erroneous result, in our estimation, through a fundamental misreading and misapplication of the precedents of this Court.

First, the court imposed on Congress a requirement that it make judicial... make legislative findings as to the nexus between the activity it was regulating here and interstate commerce to satisfy the court that it was exercising that power in a constitutional manner.

In doing so, the court of appeals essentially treated Congress as though it was subject to procedural rules that would be appropriate in the context of a judicial or administrative proceeding, but not where Congress was legislating for the entire Nation pursuant to its plenary powers under the Constitution.

Justice Kennedy: Well, if we were concerned that the original understandings and structural theories that underlay the Federal system have been so eroded that that whole system is in danger, I take it that it would be appropriate for us to consider some procedural guarantees.

Mr. Days: Yes, and this Court has considered and imposed certain procedural guarantees where, for example, it felt that Congress was legislating in a way that encroached upon the operations of State governments, as in the case of New York v. United States, where this Court held that Congress could not legislate to the extent it did to require that the States take title to certain nuclear waste.

It's done so under what has been referred to in the court of appeals decision as the clear statement rule, or the plain statement rule, that where there are incursions upon Government operations, that Congress has to make its intent to exercise its authority to the fullest extent clear in the legislation, and there cannot be any ambiguity in that respect.

But what this Court has been doing is looking at, as it properly should, limitations on the exercise of the Commerce Clause found within the Constitution itself, and not based upon some generalized concern that Congress was going too far in carrying out that responsibility.

Justice O'Connor: Well, let's do exactly that, and ask whether the simple possession of something at or near a school is commerce at all.

Is it?

Mr. Days: I think the answer to that is that it is, yes, Your Honor.

Justice O'Connor: I would have thought that it wasn't, and I would have thought that it, moreover, is not interstate.

Mr. Days: Justice O'Connor--

Justice O'Connor: If this is covered, what's left of enumerated powers?

What is there that Congress could not do, under this rubric, if you are correct?

Mr. Days: --Justice O'Connor, that certainly is a question that one might ask, but this Court has asked that question in a number of other circumstances, and rather than starting from the assumption that something was inherently local, it's looked at the degree to which Congress had a reasonable basis for extending its authority under the commerce power to regulate that particular activity.

Chief Justice Rehnquist: But in some of those very cases, General Days, the statement is found that the power is not limitless.

Mr. Days: Well, that is certainly the case, Chief Justice Rehnquist.

That's an understanding from the Constitution, but one has to look at where the limitations are that are imposed by the Constitution itself.

Chief Justice Rehnquist: Well, what would be... if this case is... Congress can reach under the interstate commerce power, what would be an example of a case which you couldn't reach?

Mr. Days: Well, Your Honor, I'm not prepared to speculate generally, but this Court has found that Congress, for example, in New York v. United States could not regulate... could not require New York State to carry out certain responsibilities, because it was commandeering the instrumentalities of the State.

Justice Kennedy: Well, the objection there was that it was objecting the State governmental machinery to operate in a certain way.

The question here, it seems to me, is quite different.

The question here is the universe of transactions that the Congress may reach.

Mr. Days: Yes.

Justice Kennedy: Can you tell me, Mr. Days, has there been anything in our recent history in the last 20 years where it appears that Congress made a considered judgment that it could not reach a particular subject?

[Laughter]

Mr. Days: I don't know whether there's been a conscious effort to do that, but I think as this Court has said in its Tenth Amendment jurisprudence that Congress reflects the will of the people, and it has built into it, and into its operations, a concern about the extent to which its regulations and its legislation would encroach on matters that have been traditionally left to the State.

Justice Scalia: Mr. Days, we have really not been too... what should I say, too strict about, you know, what the farthest reach of the Commerce Clause may be.

But as I read our cases, the ones that are most often cited, indeed, I think all of them, involve the issue of whether some commercial activity of some sort... renting a hotel room, growing a commodity that is used in commerce... whether some commercial activity is interstate commerce or not, and one can say we're prepared to be very broadminded about that.

If Congress says some commercial activity is interstate commerce, or affects interstate commerce, that's okay.

But here you have regulation of something that is not commercial activity in any sense of the word, merely the possession of an item.

Mr. Days: Your Honor, two--

Justice Scalia: Might we not apply a different rule in that case than we do... I mean, give up the whole realm of commerce to the Federal Government.

Say, anything that relates to commerce, the Federal Government can control, securities regulation, all sorts of things.

Mr. Days: --Well, I have two--

Justice Scalia: But it has to relate to commerce.

This doesn't relate to commerce, even.

Mr. Days: --I have two responses.

One, this Court did decide, in a case called Preseault v. ICC, that Congress could use its commerce powers to convert rights of ways to recreational uses for hiking trails, and there was no indication that that particular objective by Congress was a commercial objective.

But I think we have to keep in mind that the Commerce Clause... the Commerce Clause has been viewed as dealing with three areas, the channels of commerce itself, instrumentalities of commerce, but in recent years, in fact for many of the past couple of decades, what this Court has found is that activities that affect commerce are also reachable by Congress under the Commerce--

Justice Scalia: Noncommercial activities that affect commerce.

What cases do you have that involve that?

Mr. Days: --Well, it's not--

Justice Scalia: Noncommercial activities that affect commerce.

Mr. Days: --If one looks, Justice Scalia, for example, at the regulation of firearms, certainly Congress was concerned about the degree to which transfer or possession in some instances affected interstate commerce, but I think it also recognized that having a gun in and of itself is not interstate commerce, it's the impact of certain activity on interstate commerce.

For example, the rules that limit the types of persons who can possess firearms, it's not suggesting that that particular regulation--

Justice Scalia: I understand--

Mr. Days: --has to do with interstate commerce.

Justice Scalia: --but have we ever held... I'm talking about cases of ours.

What cases of ours would stand in the way of a stricter... of a stricter Commerce Clause jurisprudence where the activity in question is not commercial activity?

What cases--

Mr. Days: I don't believe that the issue has been clearly presented, Justice Scalia, but I think that what this Court has operated upon as an initial assumption is that Congress was given the power under the Constitution to legislate directly upon private individuals, and that there are no built-in limitations on the Constitution.

Justice Ginsburg: --General Days, just to understand what we're talking about, do I correctly understand your position to be, your rationale for this--

Mr. Days: Yes.

Justice Ginsburg: --that all violent crime, if Congress so desired, could be placed under a Federal wing, could be placed in the Federal court for prosecution, all violent crime, or is there any stopping point?

Is there any violent crime that doesn't affect interstate commerce on you rationale?

Mr. Days: Well, Your Honor, I think that the answer is that it may be possible for Congress to do that under the commerce power.

Again, one would have to look at was Congress legislating rationally, with a rational basis for thinking that regulating violence would have an impact on interstate commerce, would have... would be the type of activity that affected instate commerce?

But what we have in this particular act is not that bold assertion by Congress.

What we have is, first of all, enough evidence to meet the test that this Court has set that Congress had a rational basis for thinking that gun possession on or near school grounds affected interstate commerce.

One was the relationship between violence itself and the economic activity of the country.

To the extent that there is violence in certain parts of the country, it makes it difficult for institutions to function.

There is the insurance consequence.

Where violence occurs, insurance burdens are shared by the entire country, not just by the locale where this particular violence occurs.

It interferes in the same way that this Court found in Heart of Atlanta Motel with respect to the travel of persons in the face of segregation in places of public accommodations.

It interferes with the willingness of people to travel to certain parts of the country--

Unknown Speaker: General Days--

Justice Souter: --where there is violence present.

Yes.

Justice Souter: --May I test a different way of reading the congressional rationale?

What if Congress had said, as part of its thought process expressed in the amendment, that the States, for whatever reason, violence, or whatever reason, had simply proven incapable of providing sufficient education in math and technology, that in the long run was a threat to commercial activity, and as a response to that, Congress was, in fact, going to nationalize the schools, and it in effect would provide a Federal public school education for every child from kindergarten on up?

Would that be justifiable under the Commerce Clause?

Mr. Days: Well, that's certainly one of the concerns that's been expressed, but I think that this Court has readily available to it a way of analyzing that, and that in reading New York v. United States, one would have to be concerned whether this particular activity was imposing statutory requirements on the State, or--

Justice Souter: It's relieving the State--

Mr. Days: --making local governments assume responsibility.

Justice Souter: --It's relieving the State of a burden, saying you don't have to pay for this any more.

We'll take care of it.

Mr. Days: Well, certainly--

Justice Scalia: Federal schools with Federal teachers, all Federal money--

Mr. Days: --Certainly, pursuant to the spending power, Congress could provide that type of support, but I think it would raise questions in this Court's jurisprudence as to whether Congress was in fact taking over something that was clearly part of the State responsibility.

Justice Souter: --But there is no question that Congress has the power, in effect, to take over crime, because I--

Mr. Days: I do not--

Justice Souter: --presume there's no limitation on your rationale, or on Congress' rationale, that would preclude it from reaching any traditional criminal activity.

Mr. Days: --That's correct.

As long as Congress is dealing with the conduct of individuals--

Chief Justice Rehnquist: Well--

Mr. Days: --and where there is this affecting interstate commerce nexus, then Congress should be permitted to do that, allowed to do that under the Constitution.

Chief Justice Rehnquist: --General Days, if Congress proscribes the possession of guns in schoolyards all across the country, it ought to have an even effect.

It isn't going to improve people's reasons for traveling, is it, because everyone is equally affected.

You're not going to... unless you're... are you saying that violence as a whole will be cut down and therefore people will feel freer to travel in interstate commerce?

Mr. Days: Yes, I think that's a reasonable assumption to think that Congress could have held or relied upon in enacting this statute.

Chief Justice Rehnquist: That possession of a gun in a schoolyard contributes to that sort of violence?

Mr. Days: Well, I think, Chief Justice Rehnquist, that it is an easy step from possession to use and, therefore, the fact that Congress might be concerned with possession doesn't mean that it wasn't concerned about use.

And there also is sufficient evidence in the consideration of even the Gun-Free School Zones Act that there was heightened violence on school property by juveniles, and if one looks at the findings and records with respect to earlier legislation... for example, the Omnibus Crime Control and Safe Streets Act of 1968... Congress makes specific findings between the easy availability of firearms and the level of juvenile and youthful violence and criminality.

So that the connection between possession of firearms on or near schoolyards and violence and the regulation of that possession are relationships that Congress has considered in the past, and in our estimation made perfectly good sense under the Gun-Free School Zones Act.

Justice Souter: General Days, I think it's well-established that a factor in both the education of children and in the law-abiding nature of children, a major factor is the stability of families.

I suppose, under your reasoning, Congress could enact a Federal domestic relations law providing a Federal marriage, Federal divorce procedures, and what-not.

I mean, there's nothing that affects levels of crime and levels of education as much as that.

Why not?

Mr. Days: Justice Scalia, Congress has legislated, for example, with respect to problems of--

Justice Scalia: Domestic violence, I'm aware.

Mr. Days: --domestic violence, or the disappearance of children--

Justice Scalia: That doesn't--

Mr. Days: --or interstate divorce problems, so it's not that Congress hasn't dealt with those issues, but I think we would look to the--

Justice Scalia: --The question is whether it has dealt with them constitutionally.

[Laughter]

Mr. Days: --Justice Scalia, that is really your department, but let me say that--

[Laughter]

That one would look to--

Justice Scalia: I'm not sure what your answer is.

Is it... would a Federal marriage and divorce law be okay?

Mr. Days: --The answer is that one would have to look to the Constitution itself, and try to identify where there are any limitations--

Justice Ginsburg: General Days--

Mr. Days: --and one would assume, for example, that privacy would be one of the considerations.

Justice Ginsburg: --I thought by repeatedly bringing up the nuclear waste case you were making the distinction... perhaps you weren't... between Federal regulations concurrent with State regulation, as it would be in this case, and Federal regulations displacing State regulation, taking over the field.

Mr. Days: Yes.

Justice Ginsburg: Are you making that distinction, and is it--

Mr. Days: No, I'm not intending to make that distinction as a major point.

Certainly, there's a difference between the two approaches, and--

Justice Stevens: --Well, wouldn't you say, just... I don't mean to interrupt--

Mr. Days: --Yes.

Justice Stevens: --but it relates to her question.

Supposing a State had a law saying, it is permissible for children to bring weapons to school to defend themselves against the risk of violence.

Do you think the Federal Government could preempt that law with a law like this?

Mr. Days: Yes, I do.

I think that, based upon its interstate commerce power, it could determine that what the State had done interfered with the free flow of commerce, affected commerce in a negative way, and therefore had to be dealt with, but getting back to--

Justice Souter: The only limitation, then, that you're recognizing, is the narrow reading... well, strike narrow, is a reading of U.S. v. New York that Congress could not impose certain affirmative obligations upon the State, but so far as concurrent regulation, and, indeed, even displacement of State regulation, presumably there is no limit, if, in fact, it can reach the case before us?

Mr. Days: --Well, I think there are limits, Justice Souter.

The question is whether there's anything left of the State once the Federal Government gets done.

If what the Federal Government is doing is essentially destroying the delicate balance between the Federal Government and the States in ways that this Court has not indicated the Constitution contemplated, then that would be difficult.

I think there would be limitations on that ability.

Justice Souter: Well, that's my question, and it seems to me you're saying that the only instance in which we can clearly say that the delicate balance would be destroyed is the instance in which the national Government imposes affirmative obligations on the States, e.g., making them the owners of nuclear waste and so on, and that short of that, there apparently isn't any recognizable limit.

Mr. Days: Well, I think there is a recognizable limit, but that is the situation where I think this Court has indicated that Congress could not go, but the Gun-Free School Zones Act does not have any preemption.

Justice Kennedy: Are we left with the proposition, then, that it is for Congress, not the Court, to preserve the Federal structure?

Mr. Days: I'm not saying that.

I think that--

Justice Kennedy: But with reference to the commerce point, realistically, that's where we are.

None of us at least can think of anything under our present case law, or at least under your argument, that Congress can't do if it chooses under the Commerce Clause, so if the Federal system must be preserve by someone, and the Commerce Clause is a means by which the Federal structure can be obliterated, and if we have no tools or analytic techniques to make these distinctions, then it follows that the Federal balance is remitted to the political judgment of the Congress.

Mr. Days: --Well, I think, Your Honor, in Garcia what this Court indicated was that the protection of this balance, insofar as the Tenth Amendment is concerned, really does reside with the political process and in Congress.

Justice Kennedy: I think that's the necessary consequence of the argument that you're making here.

Mr. Days: It's not an argument that I concocted, Justice Kennedy.

It's one that I think flows from this Court's decisions, and that one does... as I indicated to Justice O'Connor, one doesn't start the analysis by saying there are things that are clearly local and within local control that Congress cannot reach.

The analysis has to be whether one can identify a rational basis for Congress' wanting to extend its commerce power into a particular area.

Justice Souter: But one always can.

I mean, there is no limit.

Benjamin Franklin said, it is so wonderful to be a rational animal, that there is a reason for everything that one does.

[Laughter]

And if that's the test, it's all over.

Mr. Days: Well, I don't believe it is, because as I was indicating, that this Court has identified there are limits within the Constitution.

There are the--

Justice O'Connor: Well, but there ought to be limits within the Commerce Clause itself.

These are powers expressly delegated to the Congress under a constitutional scheme that envisions that Congress has certain enumerated powers and that's it, and if the function being regulated is wholly intrastate, and is not commercial, it is very hard for me to understand why it's within the text of the Interstate Commerce Clause power.

Mr. Days: --Well, Justice O'Connor, I think we have to remember that the commerce power is one of the heads of authority under the Constitution that transformed our country from an agrarian society to one that--

Justice O'Connor: Well, rightly so, but--

Mr. Days: --was a powerful commercial enterprise.

Justice O'Connor: --But it can clearly deal with commercial activity.

We've been very generous about that--

Mr. Days: Your Honor--

Justice O'Connor: --and interstate activity.

Mr. Days: --Your Honor, we're talking about commercial activity.

We are talking about something that affects interstate commerce.

As we indicate in our brief, Congress has been concerned long before 1990 with the impact of diminished achievement in primary and secondary schools and this country's ability to compete and to have a strong economy.

This is not about just regulating guns--

Justice Souter: And it has acted--

Mr. Days: --possession.

Justice Souter: --simply under the spending power up to this point, right?

Mr. Days: I beg your pardon?

Justice Souter: Hasn't it acted simply under the spending power?

It has given money.

Mr. Days: Well, in that regard, yes, it has given money, but it indicates Congress' concern with this impact on the national economy.

Once, it seems to me, that's identified, it's identified as having an impact on interstate commerce, that, then, opens the way for Congress to regulate directly through the Commerce Clause.

Justice Ginsburg: General Days, it sounds to me like you're making... you're presenting what has sometimes been called a political question argument, that is, that there are some decisions that are committed to another branch to determine the constitutionality.

It seems to me that you're saying that what is within commerce or not is for Congress to decide, and that the courts don't have an oversight rule.

Mr. Days: I am absolutely not saying that.

Justice Ginsburg: What are the limits, then?

You said it could be all of violent crime could come within it.

You're not making the distinction between concurrent jurisdiction and displacing the State authority, so what is the check?

How would you describe the check that the Court has?

Mr. Days: Well, I'm perhaps left to repeat myself in some respects.

This Court has never said that there are absolute limits to the exercise of the commerce power.

It's looked at individual cases and tried to determine, exercising--

Justice Ginsburg: What would be a case that would fall outside, other than the one that you... the nuclear waste, telling the State, in effect, you serve as Federal official for this purpose?

Mr. Days: --I don't have--

Justice Scalia: Don't give away anything here.

[Laughter]

They might want to do it next--

[Laughter]

Mr. Days: --Your Honor, I--

Justice Stevens: General Days, could I ask--

Mr. Days: --the Court has never looked at this in the abstract.

It's not an abstract process.

It's been viewed by the Court as an empirical process.

Justice Kennedy: --But my point is, Mr. Days, maybe the constitutional system would be better served if we recognize that there are no judicial tools to do this.

Mr. Days: There are... excuse me.

Justice Kennedy: There are no judicial tools to put meaningful limits on the Commerce Clause.

Therefore, it's essentially a political question, therefore, the obligation to protect the Federal system is that of the Congress, and therefore we have to ensure that there's some mechanics or procedures that they mus follow to do so--

Mr. Days: Your Honor--

Justice Kennedy: --especially if there is an indication that this is never an explicit subject of concern.

Mr. Days: --Well, I'm not arguing that it's a political question.

Indeed, one of the elements of the political question doctrine is that there are not available judicial tools for evaluating what is at issue.

I think this Court has identified in a number of cases the fact that there are limits within the Constitution that can be applied by this Court to control the extent to which Congress operates under the commerce power.

The fact that this Court has not found the need to rein in Congress is simply an indication that Congress is legislating in a way that's consistent and rational--

Justice Souter: Or an indication--

Mr. Days: --in light of the growth of this country.

Justice Souter: --of what Justice Kennedy said.

I mean, the cases can be read equally consistently with Justice Kennedy's suggestion that there simply is no judicial way to do this job.

Justice Stevens: May I ask you one question, General Days?

Mr. Days: This Court has never suggested that it was abdicating its responsibility in that regard.

Justice Stevens: You filed in a recent submission copies of congressional findings made in the recently enacted Crime Control Act.

Mr. Days: Yes.

Justice Stevens: What relevance do you think those findings have to our problem today?

Mr. Days: Justice Stevens, we're not relying on them in the strict sense of the word, but we think that at a very minimum they indicate that reasons can be identified for why Congress wanted to regulate this particular activity, so that it's corroborative of what we were saying our briefs, and what we think this Court should properly find about the bases that Congress relied upon in legislating it as it did, or could rely upon.

Justice Stevens: Do you think the court of appeals would have decided the case the same way if those findings had been in the original statute?

Mr. Days: I do not believe that the court of appeals, based upon just the reading of the decision, would have come out the same way, but I can't be absolutely certain.

What the Court did was impose a number of procedural requirements on Congress, and I'm not certain how it would view these particular findings, whether they had been promulgated in a way that touched every base that the court of appeals felt was necessary.

I'd like to reserve the balance of my time.

Argument of John R. Carter

Chief Justice Rehnquist: Very well, General Days.

Mr. Carter, we'll hear from you.

Mr. Carter: Mr. Chief Justice, and may it please the Court:

When the American people established the national Government, if they had then invested it with a general police power, there'd be little problem with laws like the Gun-Free School Zones Act.

State legislators possess general police powers, and they pass laws like this all the time.

Justice Kennedy: I am aware of at least two schools within 1,000 feet of an interstate highway.

I am sure there are many schools in the United States that are within 1,000 feet of an interstate highway, or of a heavily traveled artery.

Don't you think that's correct?

Mr. Carter: Yes, sir.

Justice Kennedy: Well, if a State tried to pass this identical statute, would that not be, then, an interference with interstate commerce beyond the authority of the States to enact?

Mr. Carter: It might very well be, if that act were, in fact interfering with interstate commerce.

Justice Kennedy: But if that is so, under the vacuum theory, then the Federal Government necessarily would have the power to enact this same law, lest there be a vacuum.

Mr. Carter: The... let me back pedal, then, a little bit on my statement regarding preemption.

I think the preemption would apply at... on the interstate highway.

Justice Scalia: Is that so, the States cannot prohibit crimes on interstate highways?

All crimes that occur on interstate highways have to be punished by Federal criminal law and not by State criminal law?

This is new.

I just thought it was Federal enclaves.

Mr. Carter: If the Court found... I believe if the Court found--

Justice Scalia: This is extraordinary.

Mr. Carter: --that the State law was burdening interstate commerce, which I don't believe it would find, but assuming that... I was assuming in Justice Kennedy's hypothetical that there would be a finding that it burdened--

Justice Kennedy: That there would be an interference, yes.

Mr. Carter: --interstate commerce and in that case, the case law I believe would... that's one of the dangers of preemption of State law by Commerce Clause legislation.

Justice Scalia: But we would make such a finding of burdening interstate commerce presumably because we believe we have the capacity to figure out what is interstate commerce and, indeed, much beyond that, what burdens it, right?

Mr. Carter: That's correct.

Justice Scalia: But of course, the argument made here is that we don't have that capacity, because it's a political question.

It seems to me we have it or we don't have it.

Mr. Carter: Well, that's an argument that seems to me to have been raised at argument today.

It's not something that the Government's argued in its brief.

Justice Stevens: It's an argument that was disclaimed, as I understood the Solicitor General.

He disclaimed that argument.

Mr. Carter: Yes, I believe that's correct, and--

Justice Scalia: You disclaim it, too.

Mr. Carter: --I'll disclaim it to a... large extent, yes, although I believe that Justice Kennedy's rationale for clear statement principles in Commerce Clause cases is a very good one, and illustrates why you can't simply have laws like the Gun-Free School Zones Act, which on its face appears to be a general police power statute.

It makes no mention of commerce, what it regulates is not commerce, it's got no legislative history dealing with commerce--

Justice Ginsburg: Suppose it had the findings that have been subsequently added, would that be sufficient--

Mr. Carter: --That--

Justice Ginsburg: --and if not, why not?

Mr. Carter: --That would call for a different analysis by this Court under its prior case law.

This Court has been very deferential to the regulation of activities affecting interstate commerce where Congress has made findings.

Justice O'Connor: Well, what's your position?

If those findings in the recent findings had been there at the time that this statute was enacted, is it valid or invalid?

Mr. Carter: Those particular findings are awfully global.

I have a lot of problem with those--

Justice O'Connor: Could you answer the question, though?

Mr. Carter: --I would--

Justice O'Connor: Valid or invalid, under your theory?

Mr. Carter: --Under my theory, shooting from the hip today, I would question their validity.

They... I do not believe they draw a tight enough nexus with commerce.

To explain why I back-pedal--

Justice Scalia: They just have to say more, but so long as they say enough, whether it's true or not, it's okay, is that it, and we would not inquire as to whether it's true or not.

Mr. Carter: --Under this Court's precedent, if they say enough, then it triggers the deferential standard of review.

Justice O'Connor: Even if it isn't interstate and isn't commercial, that's fine, just so long as they add a string of rationales here?

Mr. Carter: One can make that argument from this Court's prior case law, yes.

Justice O'Connor: I just wanted to know what argument you were making.

Mr. Carter: I... I'm trying to make an argument that comports the Court's prior case law, which, as a practitioner of law, I'm in a position... not in a very good position to question, with what happened here, and how very different this law is even from prior legislation which doesn't appear to regulate the concerns that you've identified but the Court has upheld.

For example, the loan-sharking case in Perez.

The Court upheld the law there.

That law at least had findings.

Justice O'Connor: I would have thought that was commercial activity.

Mr. Carter: I would... I would agree with you 100 percent on that.

The Court, however, did not specifically recognize that as its rationale.

Believe me, I wish it had, because I think you're absolutely correct that when Congress reaches to regulate intrastate, noncommercial activity without some strong, strong connection, I... and the first cases which expanded into this area talked about a close and substantial connection, and somehow along the way that gets transferred into rational relationship.

And I would welcome the Court to look at the cases which opened this door and examine more closely how it has continued to erode over the years, in that we have a situation now where the Solicitor General can argue that Congress has almost plenary power over crimes.

Justice Scalia: But basically you have a client you're trying to keep out of jail, and as far as you're concerned it's enough to say they didn't make the findings and let us worry about the rest some other time.

Mr. Carter: That is my duty as his attorney.

Justice Ginsburg: It is your duty.

And that's the same reason why you suggested that the... in this very same statute the prohibition on discharging a gun might present a different case.

Mr. Carter: Yes.

Yes, there is a, I think a very obvious difference between the simple possession of a gun within 1,000 feet of a school which can be for lawful or unlawful purposes, and the discharge of a gun, even, I think, in cases where the discharge of itself might be lawful.

Justice O'Connor: What about a general ban on certain types of assault weapons?

Just possession--

Mr. Carter: Simple--

Justice O'Connor: --of certain types of weapons.

Mr. Carter: --types of assault weapons.

Under my theory, Congress made in 1968 findings about what it called highly destructive weapons.

Congress has regulated machine guns and what it... what it... it used the term firearm, but statutorily defined to be the more highly destructive weapons in the national firearms from 1934 to the present.

I believe that would rest on a different constitutional basis, because some of the offsetting considerations... for example, Congress' longstanding recognition of the lawful possession of firearms for sporting purposes.

Justice Stevens: It would be helpful to me if you'd answer the question... whether the explosive device or machine gun, just possession of one or the other within 1,000 feet of a school, could be prohibited by Congress.

Mr. Carter: If, in an individual instance, it affected interstate commerce--

Justice Stevens: Well, just the same... you've got exactly the same statute you have here, except you substitute for firearm the word, machine gun, or explosive device.

Mr. Carter: --Absent some finding by Congress linking it to its commerce power--

Justice Stevens: It would be the same case.

Mr. Carter: --I believe it would stand on the same footing.

Justice Stevens: Now, we have the findings.

We do have findings now.

Why can't we take judicial notice of the facts Congress have found?

Maybe they're not sufficient, but what is the difference whether the... whether it's in the finding, or something that everybody knows?

Mr. Carter: Because the findings are made by a subsequent Congress.

This Court has been... has in the past indicated that that's--

Justice Stevens: But do you think if they had, for example, made a regulation of railroad transportation and didn't make the finding that this involves interstate commerce we couldn't take judicial notice of that?

Mr. Carter: --This Court could take judicial notice of Congress' prior findings regarding the effect--

Justice Stevens: But why can't we take judicial notice of what they found today, or just a couple of weeks ago?

Mr. Carter: --Because we're talking... we're not talking about something that happened today, we're talking about something that happened in 1992, before those findings were made.

Justice Stevens: Yes, but it's the same statute, and either that does affect commerce or it doesn't, and I don't know why the findings make any difference.

That's what you have to explain to me, why the findings make a--

Justice Scalia: --We're making up this procedural requirement, anyway.

Why can't we say--

[Laughter]

--you have to make these findings either at the time you pass it, or later, so long as the case comes up after you've made the findings?

That's a sensible procedural requirement.

Mr. Carter: That would retroactively convict Mr. Lopez under a different theory than he was prosecuted under, in that this Court has also considered findings--

Justice Stevens: I don't think that's right, because he was prosecuted under a statute that was on the books, and the statute is either valid or invalid because it does or does not have an adequate connection with commerce, and I don't know that Congress, when Congress makes the findings has anything to do with that... with whether in fact it has a justifiable connection with commerce.

Mr. Carter: --Well, Congress in 1990 could have linked gun possession in a school zone with commerce in another way besides findings.

It could have made it an element of the offense.

And when you examine congressional regulation of firearm possession, which is mostly in section 922, they more often use the commerce element as part of the offense, and for this Court, or to assume that Congress in 1994, by passing findings, is doing what Congress may have wanted to do in 1990, ignores the very real possibility that Congress could have done the same thing in 1990 by requiring an element, and in that case, it would have had to have been part of the indictment and proof in Mr. Lopez' case.

Justice Scalia: Why isn't your answer that what Congress finds to have been true in 1994 is not necessarily what Congress would have found to have been true in 1990?

Mr. Carter: I think--

Justice Scalia: Why isn't that an adequate answer to keep your client out of jail?

Mr. Carter: --I think in my own awkward way that's what I was trying to say.

[Laughter]

Justice Stevens: Mr. Carter--

--You're trying to say that some of the facts underlying these findings have changed in the last 2 years.

Mr. Carter: They very well could have.

Justice Stevens: Which ones?

[Laughter]

I think that's really quite ridiculous.

If you look at these findings, they're either acceptable or they're not, and maybe they're not, I agree with you, but there's really been no change.

Mr. Carter: I don't... I would think... I don't see how they can be retroactively acceptable.

Justice Stevens: I understand that argument, but that's not saying that the facts underlying the findings have changed in the last 2 years.

I don't think anyone would accept that.

Justice Scalia: A finding requirement is a finding requirement, isn't it, and if you insist upon a finding by Congress, surely that finding has to be a finding related to 1990, or, you know, whenever the even occurred--

Mr. Carter: I would... I would--

Justice Scalia: --and there is no finding relating to that date.

Mr. Carter: --I would agree 100 percent.

The Congress can't go back and change time.

It can judge the facts today, and this is a factual determination.

It's a jurisdictional prerequisite.

Justice Breyer: All right, so what would you say about the obvious argument, the simple argument against your position that this isn't a borderline case?

The guns move in interstate commerce, likely, the books do, the desks do, the teachers might.

People will not move to places in this country where children are being killed in schools by guns, and in fact, if the Federal Government can't do something about it, maybe the whole economy will go down the drain in 1,000 obvious ways, all right.

So that would be the argument in Wickard & Filburn.

If some homegrown wheat affects interstate commerce, which I guess is a borderline question economically, certainly guns in schools do really, not borderline, affect commerce.

Now, what's your reply to that?

Mr. Carter: My first reply to that is this act reaches more than guns in schools.

It reaches guns near schools, it reaches the lawful possession of guns in schools.

It reaches beyond Congress' power.

That's the biggest problem with this act.

I'm not arguing that Congress has no power to regulate firearms anywhere near schools.

What I'm arguing is that this act, as you read it, is a general police power type legislation, and that is not the power that Congress has.

Justice Ginsburg: Does it make sense for us to say that the only flaw in this legislation is the one you're pushing, because it's so obviously easy to get up a set of findings.

It would be diminishing the Constitution, I think, if you impose that kind of, almost school-ma'am requirement on Congress.

Mr. Carter: I don't believe it would diminish the Constitution.

If anything, it would formalize procedures for Congress to take.

It would recognize--

Justice Scalia: We have no authority under the Constitution to prescribe procedures for Congress.

Can we tell Congress how it must legislate?

Where do we get the authority to say that?

This is not an interpretive rule.

I mean, we have the power to adopt rules of interpretation.

Unless something is clear in the statute, we will not assume it to be true.

But this isn't an interpretive rule you're urging upon us, it's a rule saying that even though it's perfectly clear what Congress intended, we're not going to give effect to it unless Congress has adopted this procedure of legislation, and has set forth a prologue of findings.

Where do we get the authority to tell Congress how to legislate?

Mr. Carter: --It... I wouldn't view it as... in quite the same sense as you do, Justice Scalia.

The requirement of findings ensures that Congress addresses problems that this Court has recognized.

In the Bass case, the Court speaks of being sure that Congress has indeed addressed the problem and thought about the State-Federal balance.

Without something like findings, there's no insurance that that has in fact happened, and it's--

Justice Scalia: We cannot presume that that has happened?

Don't we usually assume that Congress has acted responsibly and made the necessary judgments, including the judgment of whether the necessary piece of legislation is constitutional?

Mr. Carter: --In an area of noncommercial activity, and in a statute that reaches as broadly as this one, I think the presumption that Congress undertook all these steps which would be formalized with findings evaporates, because otherwise we're in a situation where, as Justice Souter quoted Benjamin Franklin, you can rationalize regulation of any human activity as affecting commerce.

Justice Souter: Is that difference in certainty the reason why you draw a line, as I understand that you do, between this statute and a statute in which Congress, presumably without any findings, simply criminalized the discharge of handguns in a school?

We would know, in the latter case, that Congress had understood and had adverted to the likely effect on interstate commerce, whereas here we don't?

Mr. Carter: No.

My argument about the discharge of a firearm was aimed at the rational relation test.

If this Court finds that this statute is simply subject to the same deferential standard of review as a statute with findings, as--

Justice Souter: You mean, if Congress simply, without findings, said discharges are criminalized, there would be a patent rational relationship there to interstate commerce, whereas there is not here?

Mr. Carter: --No.

The purpose of my illustration of discharge is to show how even more further attenuated this statute is, that there's a closer--

Justice Souter: Then your answer... if I push you to the wall, is your answer going to be that the discharge statute would also be unconstitutional?

Mr. Carter: --Without a... having an effect on commerce, yes, that--

Justice Souter: Well--

Mr. Carter: --I think--

Justice Souter: --assume two cases.

You've got a discharge statute without findings.

Unconstitutional?

Mr. Carter: --A discharge statute, simply outlawing all discharges--

Justice Souter: In... within 1,000 feet of a school.

Mr. Carter: --I would think that to be unconstitutional.

Justice Souter: All right.

Same statute, findings identical to the ones here, discharges within 1,000 feet of the schools threaten the educational mission, the educational mission, the threat to the educational mission will deteriorate education and ultimately that will affect commerce, because we will have a dumb population.

Is that constitutional?

Mr. Carter: That would be more rational than what we're facing here.

I--

Justice Souter: Is it rational enough?

Mr. Carter: --Not for me.

Chief Justice Rehnquist: How about for us?

Mr. Carter: That's--

[Laughter]

I don't think so.

I hope not.

Justice Scalia: That would depend upon how rational we are, I suppose, and you don't want to press that.

Justice Stevens: What about a statute that prohibits the conduct of school classes in rooms where there's a lot of asbestos in the wall or the ceiling, just prohibition.

Just like no guns... one section says, no guns in the schoolroom, another section says, the room cannot have asbestos in it, period.

No findings at all.

Mr. Carter: I would think that that, as stated by you, would be of very doubtful constitutionality.

I can't, on my feet, think of any constitu--

Justice Stevens: Let me go one step further and require them to remove asbestos wherever it is on the school premises, also remove all explosive devices at the same time.

Mr. Carter: --I think, as stated by you, that would be of doubtful constitutionality where it would also--

Justice Scalia: I think under your theory it would be.

Mr. Carter: --Yes, and I think it would raise questions under New York v. U.S. about ordering the schools, what Congress can and cannot order States to do.

Justice Ginsburg: You emphasize in the beginning that you are an advocate for a particular client, and so you're concentrating on the absence of findings.

As I understand the Fifth Circuit decision, it didn't go beyond the absence of findings.

Did the Fifth Circuit reach the question of what if there were findings?

Mr. Carter: I don't believe it did.

The Fifth Circuit left... for example, the Fifth Circuit left open the question of whether a commerce element could be implied into this statute, which is sort of another alternative to findings.

Congress--

Justice Ginsburg: So if you're wrong about the necessity for findings, then what happens to this case?

Mr. Carter: --If I'm--

Justice Ginsburg: That's all that the Fifth Circuit decided, that findings are needed, and if we decide... follow the ordinary presumption that Congress had a reason for what it did--

Mr. Carter: --Then this Court must address the question of, if Congress had the power to do what it did under the Commerce Clause.

Justice Ginsburg: --Even though that would be taking a first view of that question, because it was not decided below.

Mr. Carter: Well, the Court could direct it... remand it to the Cong... I mean, to the Fifth Circuit in light of the Court's decision here, of course.

Justice Ginsburg: Because we are ordinarily not a court of first view.

Mr. Carter: That is correct, and that is an option open to this Court.

Justice Kennedy: Could the Congress make it a crime to throw a fire bomb into a schoolhouse?

Justice Scalia: You know, if you're going to take the position that the Federal Government is a Government of limited powers, it means a limitation on doing good things, as well as limitations on doing bad things.

You swallow it.

Mr. Carter: I--

[Laughter]

I agree there's... I don't view the decision of the court of appeals and what I'm advocating here as requiring this Court to throw out the concept that Congress can reach activities which have a close and substantial relation to interstate commerce, and then the question, to reach... I'd really be simply restating your question.

I think there's a more... a much more open and... must more close and substantial relation to an act of violence directed against a school, an occupied classroom, than... than there is in simply possessing a firearm near one, and line-drawing is, you know, is something the Court does, and I don't really wish to be back-pedaling on this, but that's not the issue here.

The issue is even more broader than that.

If... if banning simple possession of a firearm near a school is unconstitutional, that doesn't necessarily mean that throwing a firebomb into an occupied classroom is.

There... under the Court's previous standard, it's... and I believe the Court said that it's a question of degree.

Justice Stevens: What about simple possession of marijuana?

Mr. Carter: That's been justified under the commerce and the foreign commerce power and the problems of indistinguishability from--

Justice Stevens: But your position is that would be permissible.

Mr. Carter: --The courts have so held, yes.

Justice Stevens: On the theory that marijuana is more apt to be moved in commerce... I mean, you can have locally grown marijuana, I suppose... or on the ground that it's more harmful than the guns?

Mr. Carter: Well, there's findings made by Congress regarding marijuana.

There's no question of the peaceful, lawful possession of marijuana in any State.

There's--

Justice Stevens: I'm assuming a State doesn't prohibit the mere possessio, but might the Federal Government nevertheless prohibit mere possession?

Mr. Carter: --If that were necessary to exercise Congress' commerce powers--

Justice Stevens: It makes precisely the same findings.

If the kids smoke marijuana, they'll be poor students, and education will suffer, and the economy will suffer.

Mr. Carter: --I think the prohibition on that basis would have to be limited to students.

Justice Stevens: To students.

Mr. Carter: Under that rationale, there'd be no rational relation between nonstudents and smoking marijuana and their effect.

In sum, I'd urge this Court to recognize the Government's argument for what it truly is.

Justice Scalia: To distinguish that, we wouldn't want to get all of these drug possession cases out of the Federal courts.

It would be--

Mr. Carter: The Government's arguing that the Commerce Clause gives the Federal Government a general police power that it wasn't given by the Constitution, and this act doesn't regulate commerce, it doesn't regulate interstate activity, and because Congress may possess some powers to regulate guns around schools doesn't mean that it exercised its power in this case, in this act.

And to uphold the Gun-Free School Zones Act under deferential review on the Government's theory that findings are somehow implicit would allow any limitations on the Congress' Commerce Clause powers to vanish, and the line beyond which its powers would not reach is then the horizon, a line which appears but can never be reached.

I would yield my further time.

Justice Scalia: --I suppose you could make... there's no doubt under our prior cases that you could make it unlawful to sell or traffic in marijuana.

That would indeed be a regulation of commerce.

Mr. Carter: I believe so.

Justice Scalia: And the only issue would be whether it's interstate or intrastate commerce, and we've been very liberal on that, once commerce is involved.

Mr. Carter: And that is the basis of a lot of regulation of firearms.

Justice Scalia: Or trafficking in guns, or trafficking in machine guns and so forth, all of that would be easily covered.

Mr. Carter: Yes, and most of it is today.

Justice O'Connor: Or possess with intent to distribute.

Mr. Carter: Correct, or to possess with intent to affect interstate commerce I believe may be regulable.

Justice Stevens: Or just possess with intent to use either a gun or marijuana would be beyond the Federal power?

Mr. Carter: The gun, I believe, yes.

The marijuana, because there are elements of indistinguishable... indistinguishability from foreign marijuana, which Congress has, I believe, plenary power to regulate, there's... it's a closer question.

I thank you.

Rebuttal of Drew S. Days, III

Chief Justice Rehnquist: Thank you, Mr. Carter.

General Days, you have 2 minutes remaining.

Mr. Days: Mr. Chief Justice, unless the Court has further questions, I'd like to waive my rebuttal.

Chief Justice Rehnquist: Very well.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.