United States v. Morrison - Oral Argument

Argument of Julie Goldscheid

Chief Justice Rehnquist: We'll hear argument now in No. 99-5, United States against Antonio J. Morrison and Christy Brzonkala v. Antonio Morrison.

Ms. Goldscheid.

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

Congress enacted the civil rights remedy of the Violence Against Women Act to remove one of the most persistent barriers to women's full equality and free participation in the economy discriminatory gender-based violence.

A bipartisan Congress concluded that gender-based violence substantially affects the national economy based on a 4-year legislative record through which it found that gender-based violence and the fear of that discriminatory violence deters women's travel interstate, restricts women's choice of jobs and ability to perform those jobs, reduces national productivity, and increases medical and other costs.

Each of these findings was fully supported by evidence.

For example, Congress heard from women whose batterers kept their partners from working, who wouldn't let them leave home if they did work, or who inflicted visible injuries so that they were afraid to go to work or were physically unable to show up.

Justice Scalia: Ms. Goldscheid, were all of these instances instances of gender-based violence?

Mr. Goldscheid: Not...

Justice Scalia: As I understand it, this law doesn't apply to any... to any rape or any... any violence against women.

It is only when the woman is... is selected because of her sex.

Mr. Goldscheid: That is absolutely correct.

The statute limits each individual case to claims in which a woman could...

Justice Scalia: Now, all of these... all of these instances that you're referring to that have such an effect on interstate commerce, are they all instances in which you have somebody who just hates women and is doing it for that reason?

Mr. Goldscheid: Perhaps not each and every instance, but Congress...

Justice Scalia: Most of them?

Mr. Goldscheid: Congress looked at the record as a whole and explicitly made a finding.

In the 1994 conference report, Congress specifically found that crimes of violence motivated by gender have a substantial adverse effect on interstate commerce.

Justice Scalia: Well, that's nice, but... but the instances on which that finding was based that you're now alluding to don't... aren't limited to... to gender-based violence.

Mr. Goldscheid: The finding that Congress made was rational.

Justice Scalia: I know.

I'm not talking about the finding.

I'm talking about the evidence that supports the finding.

Mr. Goldscheid: The evidence that supports the finding was in the record.

Congress also specifically found that some acts of discriminatory violence could, in fact, be discriminatory.

Justice Scalia: Well, let me... let me ask a...

Mr. Goldscheid: They cited the case of Meritor.

Justice Scalia: a similar question.

It... it follows from my last one.

If indeed non-gender-based violence against women or, for that matter, against men also has a substantial effect on interstate commerce, I suppose Congress could enact a general criminal statute against... against violence, a Federal... a Federal rape law, a Federal robbery law.

Right?

A Federal murder law?

Mr. Goldscheid: This case is entirely distinct from the hypothetical that you propose because by...

Justice Scalia: Oh, I'm aware of that.

I'm... but that's why I posed the hypothetical.

Mr. Goldscheid: By requiring discriminatory... a showing of discriminatory motivation in each instance, the Congress specifically removed these cases from the kind of constitutional shoals that the Court in Griffin v. Breckenridge was worried about.

Justice Scalia: But the justification for the statute that you're now giving us is a justification that would allow general Federal criminal laws on all subjects because all crime affects interstate commerce.

Mr. Goldscheid: As we...

Justice Scalia: Is that not... is that not so?

Mr. Goldscheid: It's entirely possible that all crime might affect interstate commerce, but that does not lead necessarily to the conclusion that...

Justice Scalia: Well...

Mr. Goldscheid: a general tort law of the type you suggest would be constitutional.

As we set forth in our briefs, there are other factors...

Justice Scalia: I don't see why.

I don't see why.

If all that is necessary that there be some effect, even though these are not economic matters we're talking about, but that there be some effect on interstate commerce, you have a Federal Government that can legislate in the entire realm of criminal law, which is certainly not what the Founders thought they were creating.

It's very clear that they didn't think the Federal Government had general police powers.

Mr. Goldscheid: And we are not suggesting that Congress would have that authority.

Justice Scalia: Oh, I think you are suggesting that.

That's the point of my question.

Tell me why you are not suggesting it.

Is it because you think that violence in general does not substantially affect interstate commerce, although this little narrow category of violence, namely not just violence against women but violence motivated by hatred of women, that little area, substantially affects commerce.

My goodness, certainly murder, rape, robbery affect interstate commerce much more than that.

Mr. Goldscheid: Two responses to your question, Your Honor.

The first is that this Court long has held that especially when... when Congress is looking at a general social problem of the type with which it was concerned here, Congress can regulate one step at a time, and that's what it did.

So, by regulating a subset of the general activity that it was looking at, it's consistent with this Court's holdings.

In addition...

Justice Scalia: That... that would be a good response to an objection that Congress was being discriminatory in selecting only this area of... of crime and not the entire area of crime.

But that wasn't my question.

My question is, if they can do this, surely a fortiori they could enact a general Federal robbery law.

Mr. Goldscheid: And that point goes to the second part of my response to your earlier question.

Justice Scalia: Good.

It should have been your first.

Mr. Goldscheid: I'm sorry.

Which is that, as we set forth in our brief, there are other considerations to assessing whether or not a law that regulates intrastate non-commercial activity is constitutional.

And the heart of that inquiry is whether or not the law intrudes on an area of traditional State concern.

And we simply don't have that here.

This law...

Justice Scalia: Where do you get that principle from?

You see, I had thought that we had a Supremacy Clause in the Federal Constitution so that if Congress does have power under the Commerce Clause to pass a law, it automatically has power to sweep away all State laws that... that interfere with it.

Mr. Goldscheid: Congress certainly does have the authority to... to preempt State law in areas in which it has power.

Justice Scalia: So then what difference does it make that this exercise of Commerce Clause power happens not to preempt State law?

It seems to me it makes no difference at all.

If... if it is a valid exercise of Commerce Clause power, they can preempt State law.

Mr. Goldscheid: The inquiry derives from this Court's concern in the Lopez decision about obliterating the distinction between what is truly national and what is truly local.

And the standards that we have set forth in our brief identifying issues such as what was presented to Congress here, the fact that the problem with which Congress was concerned is discrimination, which is uniquely and traditionally an area of Federal concern, the fact that in this case the States have come forward and have said that they need Federal help in resolving the problem... Attorneys General from 38 States testified to Congress that the Violence Against Women in general, and the civil rights remedy in particular, was a law that would help them resolve this problem that they found to be very serious and entrenched and perplexing.

And, of course, you know that nearly three-quarters of the States' Attorneys General filed briefs with this Court in support of this law here.

And the law itself works no usurpation of any area of traditional State concern.

It leaves the traditional areas of divorce, child custody, equitable distribution expressly and entirely undisturbed.

Justice O'Connor: Well, presumably Congress could also, under your theory at least, legislate in those areas too.

If... if there's bias against women and they're not receiving adequate alimony or it's not enforceable in court in the States, then it would also have an effect on commerce.

Would it not?

Mr. Goldscheid: It might have an effect on commerce, although that scenario... if you're suggesting a scenario that... where the Federal Government would propose to overtake, say, wholeheartedly a divorce law, that would be stepping into the shoes...

Justice Ginsburg: Make it just an alternate forum as here.

You can bring your property distribution claim in State court or Federal court.

On your theory Congress, I suppose, could do that.

Mr. Goldscheid: It might well be a harder question because you are talking about an area that is more traditionally within State concern as compared to discrimination which is historically within the realm of the Federal Government.

What the law here regulates... it builds on this Court's... this country's history of anti-discrimination laws through which Congress has provided means of redress for individuals...

Justice Ginsburg: But the... but the case of marital distribution would also be based on discrimination, that is, a documented legislative history that shows that women are getting the short end of the stick in marital property distribution.

Mr. Goldscheid: And if there were such a legislative record, that would certainly be a closer case to what we have here than an over-arching, overall regulation of divorce law.

Justice Souter: All right.

Well, what if... what if Congress did pass a general murder statute?

Is it your position that... that it would be unconstitutional because it did trench upon a traditional sphere of... of State criminal regulation?

Mr. Goldscheid: It would be very different from our scenario here.

And I... I think the answer would be...

Justice Souter: Well, different enough to be unconstitutional?

Mr. Goldscheid: I... I think the answer would be yes.

First of all...

Justice Souter: And is the criterion tradition?

Mr. Goldscheid: It would be several things.

First of all, it would... it would well run afoul of this Court's decision in Griffin v. Breckenridge which said that absent a showing of discriminatory animus or discriminatory motivation in each instance, a Federal tort law would roll... could run into constitutional shoals.

Second of all, in a Federal murderer tort law...

Chief Justice Rehnquist: Thank you, Ms. Goldscheid.

Mr. Goldscheid: Thank you.

Argument of Seth P. Waxman

Chief Justice Rehnquist: General Waxman, we'll hear from you.

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

The innovation of this Court's decision in United States v. Lopez was to reiterate that under the Commerce Clause there are judicially enforceable limits on Congress' authority and to explicate what those limits are.

And we think that the statute at issue in this case satisfies those limits in the following respects.

Chief Justice Rehnquist: General Waxman, is the Government supporting this... the constitutionality of this legislation both on Commerce Clause grounds and on section 5 of the Fourteenth Amendment?

Mr. Waxman: Indeed, we are, Mr. Chief Justice, and I'm prepared to make the Government's argument with respect to both.

I thought I would start on the commerce just to fill in some of the many questions that were answered.

Justice Kennedy: Let me just comment.

Your colleague had a very brief time to answer our questions.

And it... it seemed to me that when she was being pressed upon whether or not a murder statute could be enacted, she would immediately talk about discriminatory animus going to the... to the Fourteenth Amendment question.

Just confining yourself to the Commerce Clause...

Mr. Waxman: Okay.

Justice Kennedy: aspect of the case, can you address the questions the Court was asking about murder statutes and why this should be different?

Mr. Waxman: Yes.

Justice Kennedy: Just with reference to commerce.

Mr. Waxman: Yes, I will do it just with respect... with reference to commerce.

When Congress... as this Court explained... in explaining... the explanation for why it's different requires a somewhat long answer, but I have... I do have the question firmly in mind.

[Laughter]

Believe it or not, I had the question firmly in mind weeks before I came up here.

[Laughter]

My answer with respect to... let me just get to the chase and then give you the explanation.

A murder statute would be far more difficult to defend under Lopez, but without knowing what Congress found and what the factual premises were for such a statute and whether it was preemptive or... or complementary I'm not able to say, as an a priori matter, constitutional or unconstitutional.

But our defense of this statute doesn't rely on a conclusion that that would be constitutional for the following reasons.

In Lopez, this Court explicated what we take to be a four-part test in judicial scrutiny of legislation that Congress passes under the substantial effects prong of the Commerce Clause, but which is not itself either economic or commercial or part of a legislative effort to regulate or protect the specific market.

And Lopez was the first such case that this Court considered, and this one is quite arguably the second.

And what the Court said in Lopez, as we understand it in both the majority opinion, joined by five Justices, and in the concurring opinion that you... that you authored, was that Congress must... the Court must independently find four things: first, that Congress did act to protect interstate commerce

In Lopez, it was not at all clear that that was true.

The act didn't even regulate violence.

It regulated possession and only within a school.

It looked much more like an effort to regulate what schools should be doing.

Secondly, the Court...

Justice Scalia: Whereas this one is squarely directed at commerce.

Mr. Waxman: This one is squarely directed at violent conduct as... okay.

I'm coming to the next part of the test.

[Laughter]

The Court has to find also independently... and... and this was first I think explicated in Wirtz v. Maryland.

The Court must find that Congress had a rational basis to conclude that the regulated activity substantially affected commerce.

Third, the Court itself must find independently... and this I think is an innovation of Lopez... that the harm on Congress was direct and not attenuated when the activity being regulated is not itself economic.

And fourth... and this is, I think, what gets most to the question about the... the murder hypothetical.

Fourth, the Court has to find that upholding the regulation at issue does not require the Court to embrace a rule that would create what the Court said in... in Jones & Laughlin, a completely centralized Government by obliterating the distinction between national concerns and those that are truly local.

Now, the difficulty in... in other words, when Congress is... is acting with its Commerce Clause authority in this unique area where the underlying activity is not itself economic, the Court undertakes an evaluation that is not characteristic of the type of evaluation that it takes in the ordinary Commerce Clause situation where Congress is seeking to regulate a channel or an instrumentality or an activity that's inherently economic in itself, and it looks to the Federal versus the local side of the balance.

And here, unlike the...

Justice O'Connor: Well, the Court has been helped many times by finding some kind of jurisdictional hook that the conduct that took place was carried out in... in interstate commerce.

There is no such hook here.

Mr. Waxman: There is no such hook here and quite deliberately on Congress' part.

And let me answer that question and then explain the essential distinction with the murder statute.

Here Congress could have put a jurisdictional requirement that the act of gender-motivated violence affect commerce or substantially affect commerce.

And under Lopez, there would be no question of Congress' constitutional authority to do that.

But we submit that it is both not constitutionally necessary under Wirtz and the... Perez and the other cases that suggest that under the substantial effects test, it is appropriate for Congress to regulate where the class of activities substantially affects interstate commerce rather than the particular discrete action.

And that's really important here in terms of the effectiveness of this remedy for two reasons.

One... the two reasons that are quite specific to gender-based violence.

One, there are many instances of gender-based violence that don't take place in the work place or on the way to work that in fact, in and of themselves and in the fear that they instill in women, have a substantial effect on the interstate economy.

And some of them were mentioned by my colleague.

If I can go... and therefore, we think that a jurisdictional element in this case as, for example, didn't exist in Perez or in Wirtz or, for that matter, really even in Heart of Atlanta Motel, because Congress in that case simply decreed that any commercial establishment that accepted a transient guest sufficiently affected commerce... so, we don't think it's necessary, and we don't think it would be as effective.

Justice O'Connor: Well, of course, in Heart of Atlanta, you... you did have commercial businesses, the running of motels and restaurants and so forth...

Mr. Waxman: Very, very...

Justice O'Connor: as I understand it.

Mr. Waxman: very true, and we don't step back from that at all.

It was important for this Court in Heart of Atlanta Motel and in Katzenbach v. McClung to ensure itself that there was a substantial effect on commerce.

My only point...

Justice O'Connor: But your... your approach seems to me would justify a... a Federal remedy for alimony or child support or other things of that... or contract disputes because we now have a record that there's bias in State courts against women.

So, any woman entering into a contract perhaps Congress could say should have remedies in Federal court, and under your theory that would be fine.

Mr. Waxman: No.

I... I don't think under...

Justice O'Connor: No?

Mr. Waxman: my theory it would be fine.

The fact that... and I think it... it would run into problems under at least three of the factors that I've identified with respect to Lopez.

The fact that there... Congress has, of course, made no such findings.

But with respect to...

Justice O'Connor: It has made findings about bias against women in State courts.

Mr. Waxman: Indeed.

And it has found with respect to gender-based... the criminal prosecution of gender-based violence that the bias, the archaic prejudices and improper stereotypes affect the outcomes of those prosecutions or potential prosecutions in a significant number of cases.

If there were to be...

Justice Scalia: To remedy which in part it gave the States $1.9 billion to... to spend...

Mr. Waxman: Indeed, as... as part of the package that includes...

Justice Scalia: These States that are... that are just bad actors.

Mr. Waxman: Yes, as part of this... well, Justice Scalia, I... if I can just respond to your last comment.

I don't think that it is a fair reading of this statute or the findings that support it or the legislative record to suggest that Congress was on a tear to deal with the States as bad actors.

The findings apply equally to the treatment that victims of gender bias... gender-based violence get in Federal courts as well, and it's not our submission that States themselves are... have a policy of discriminating against or depriving women.

Justice Scalia: I thought that's what you had just said, that...

Mr. Waxman: No, no.

Justice Scalia: State courts...

Mr. Waxman: There... Congress found, largely by reference to the submissions by 21 State task forces and testimony of State Attorneys General and prosecutors and police, that archaic prejudices and improper stereotypes by people in the criminal justice system in a significant number of cases were affecting outcomes.

And I don't think that that could fairly be said with respect to domestic relations matters, but even if it could, Justice O'Connor, there are other significant differences here.

If this were a statute that were targeted at the core of a... of an area in which the States by history and tradition lay claim, it would raise, in this unique area of Commerce Clause regulation outside of an economic activity, a very substantial concern on the State side of the federalism balance.

Chief Justice Rehnquist: If we're... if we're talking about archaic stereotypes and so forth, are the plaintiffs going to be any better with juries in Federal court?

I mean, they come from the same pool that State court juries come from.

Mr. Waxman: Mr. Chief Justice, they... they may or may not be, and Congress didn't base its establishment of the remedy on a conclusion that they would be.

The... the establishment of the remedy... the reason that the remedy were thought by... was thought by Congress to be sufficiently efficacious... no one thinks it's going to eliminate the problem of gender... gender-motivated violence.

The reason it was thought to be sufficiently efficacious to try as part of a multi-year, multi-statute scheme is, number one, it gives the plaintiffs... it gives a category of people that Congress found may not have always had a fair chance at vindication... an alternative forum.

It gives them a civil forum.

It gives them the option of pursuing that in a Federal court under different rules with different burdens and with certain advantages and disadvantages.

And it was... this does, I think, get in... somewhat into our Fourteenth Amendment argument, but it was thought to provide a remedy with respect to both the Commerce Clause problem that commerce sought... Congress sought to address and the Fourteenth Amendment problem by providing this category of people a means to... an alternative means to obtain vindication and redress...

Justice Ginsburg: General Waxman...

Mr. Waxman: in a choice of forums.

Justice Ginsburg: from what you say, I take it that there would not need to be a jurisdictional peg for the criminal provisions of this act.

There is in fact, but am I correct in understanding you to say that that was not necessary?

Proper perhaps but not necessary.

Mr. Waxman: I... I'm not... I'm not saying that and I'm not sure that the criminal provisions of the act would satisfy this Court's standard... unlike the civil provisions would satisfy this Court's standard in Lopez without a jurisdictional provision, and here's why.

The criminal provisions of the statute are not analogs of the civil remedy provision.

The criminal provisions of the statute, which were included in a separate title and considered separate... entirely separately, address themselves to the crossing of State lines for the purpose of engaging in domestic violence or violating State protective orders.

The crossing of State lines is not just the traditional jurisdictional element whereby Congress gets to grab authority.

It's the element... it's... it's the actus reus, if you will.

And if Congress were to essentially impose a remedy... without the... without the jurisdictional element in those statutes, Congress would be doing what I think was suggested it might be doing if it directed... by Mr. Chief Justice... if it directed itself at simply saying, well, they're biased in domestic... in divorce cases, let's federalize it.

That, unlike this, would be an act in which Congress, acting in this special Commerce Clause area, would be directed directly... would be aimed directly at what the States traditionally do, and that would change the balance that I think this Court has... certainly the concurring opinion in Lopez suggests has to occur when Congress is operating at the limits of its Commerce Clause authority.

Justice Scalia: General Waxman, can you give us a single opinion in which this Court has suggested that some activities under the Commerce Clause are valid on the part of the Federal Government where they do not displace State action, but would be invalid if they do displace State action?

I'm alluding to your... your dichotomy between, I think you said, preemptive versus complementary Federal laws.

This is a new view of the Commerce Clause to me.

I had thought if the Federal Government has Commerce Clause power, it has Commerce Clause power.

Now, you're saying that it has it in some areas but only if it doesn't displace the State... State action.

Is that... is that the theory?

Mr. Waxman: Justice Scalia, I was with you entirely until the Court decided Lopez, and I think what the... and I think the reason I was with you is that the Court had never considered the... as it... as it explained, the exercise of Commerce Clause authority in an area in which it wasn't channels or... or instrumentalities of commerce, and under the substantial effects, it wasn't even activity that's economic itself or activity that protects or regulates a market.

And what we understand this Court to have announced in Lopez is that when Congress does that, there has to be a... an assurance that upholding the... the regulation does not require the Court to embrace a completely centralized government.

Justice Scalia: Where does it say that in Lopez?

I had thought what Lopez said is if the congressional action in this area is intruding into an area that is the States' exclusive concern under the Constitution, it can't do it.

I didn't see that the opinion said, well, Congress can sort of slice the bologna and say, we're going to intrude but not too much.

Where does it say that?

Mr. Waxman: Well, I... perhaps I don't have the... the opinion with me right here.

Perhaps on rebuttal...

Justice Scalia: Well, if it's the only opinion you're relying on, I... I would really, you know, like to know what language suggests that.

I...

Mr. Waxman: There is language both in the...

Justice Scalia: must have signed on to it unconsciously.

Mr. Waxman: There is language both in the majority opinion and particularly in... in the concurring opinion.

I read it from the majority opinion by the... the Court's analysis saying this... Congress is regulating under the substantial effects test and this is not activity that's economic or part of a regulation of a market.

It doesn't have a jurisdictional element, and... and then the Court goes on at great and persuasive length... if we were to accept the Government's two arguments in this case, it would obliterate the distinction.

The concurrence adds that in the instance in which Congress seeks to regulate with respect to that type of activity, it is appropriate, it is required to inquire the extent to which the Federal balance is changed.

And our submission here today is not only that this act falls on the appropriate side of the line, but that the creation of a bright line test, which is quite inconsistent with this Court's historical Commerce Clause experience that simply says if you're operating in the substantial effects area and it's not economic or identifiable to a particular market, it's invalid would be a very unwise rule for a number of reasons.

There are lots of non-economic activities that themselves have nothing to do with commerce or... or the economy that help regulate a market.

Drug and firearms possession laws, for example.

There are economic activities that threaten markets.

I'm thinking of the Federal Access to Clinic Entrances Act and, you know, acts that prohibit, you know, blocking the entrance to an exchange of some sort.

And there are other acts that deal with... directly with activities that themselves aren't economic but that themselves have substantial effects on commerce.

Justice Kennedy: If you defend the scheme as being an analog and the same and therefore not a displacement, then that seems to me to cut against your Fifth Amendment... Fourteenth Amendment argument because you're not adding any additional remedy.

It seems... it seems to me you're caught on the horns of a dilemma there.

Mr. Waxman: Well, let me... let me shift ground briefly to the Fourteenth Amendment.

Our submission with respect to the... I take it your question goes to why this is an efficacious remedy at all with respect to the Fourteenth Amendment violation that we've identified.

Is...

Justice Scalia: Yes, because you've defended it as saying it's just the same under theCommerce Clause.

Mr. Waxman: Well, no, no, no.

I...

Justice Scalia: And now you get to the Fifth Amendment, you're going to say, well, it's different.

Mr. Waxman: If I... if I said that it was just... just the same... just the same as what these plaintiffs already have available to them in State Courts, I... I mistook.

The... the Federal remedy that Congress has enacted provides them something that they didn't have before.

Now, it can be argued that they already... they already had the right to have their crimes prosecuted and in all States they already had the right to pursue a tort remedy.

But this is different.

Chief Justice Rehnquist: Thank you, Mr. Waxman.

Mr. Waxman: Thank you.

Argument of Michael E. Rosman

Chief Justice Rehnquist: Mr. Rosman, we'll hear from you.

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

The question in this case is whether the enumeration of congressional powers in the Constitution provides principled, substantive limits to those powers.

For each of the two powers that are at issue today, petitioners ask this Court to go beyond its previous holdings and to enlarge those already substantial powers even further.

With respect to the Commerce Clause, this Court has not yet held that Congress can regulate any violent crime non-economic in scope and without any jurisdictional element tying it to interstate commerce in the specific instance.

With respect to section 5, this Court has not yet held that Congress can remedy violations of the section 1 prohibition against State denials of equal protection by regulating purely private behavior that could not possibly violate section 1.

Under these theories, Congress could justify laws... virtually any laws... in domestic relations law, crime, tort, areas that are traditionally governed by State law.

And as Justice Scalia noted earlier, because the power to regulate is the power to preempt, Congress could occupy the fields in these areas and relegate the States to a trivial and unimportant role in our Federal structure.

With respect to the Commerce Clause...

Justice Kennedy: The Government argues, Mr. Rosman, that... that we're in a new regime after Lopez and that what we should do for non-economic matters is not to say that absolutely the Commerce Clause power exists or doesn't exist, but rather it may exist so long as the Government doesn't go too far in displacing State activity.

What... what's wrong with that regime?

Mr. Rosman: Because it's been... as you noted earlier and... and as I just mentioned, it's been the traditional jurisprudence of this Court that the power to regulate is the power to preempt.

That is to say, if Congress has the power to regulate, it can displace State law to the extent it chooses.

Justice Stevens: But what if the Federal statute expressly says, this will not preempt State laws whatsoever?

Mr. Rosman: This statute, Your Honor?

Justice Stevens: What if... what if a Federal statute had that provision in it?

Mr. Rosman: Well, the Gun-Free School Zones Act had that provision and it was still unconstitutional.

So, I would not think that would be of significance.

What the Court focused on...

Justice Stevens: Well, if that's not significance, then the question of whether there's preemption or not is not significant either.

Mr. Rosman: That... that's correct.

Justice Souter: Oh, okay.

Mr. Rosman: It's not significant.

That would be our position.

Justice Breyer: Well, then this... this Court has had a... what I think is an unfortunate 150 or 200-year history of trying to draw some kind of line, as you are, between local and interstate effects.

Most of those have failed.

What's your line?

Mr. Rosman: Well, we think that Lopez best drew the line between economic conduct... that is to say, conduct which is connected to or arises out of a commercial transaction... and other conduct.

Justice Breyer: So, then your view is that if it turns out that, to use one of the Government's examples, people are in their own houses cooking up biological warfare or it turns out that in their own fireplaces, they pollute the air in a way that will, through global warming, swamp the east coast... or, you know, use any of their other imaginative examples... Congress is powerless to act?

Mr. Rosman: Well, with respect to the first example, Justice Breyer, I think Congress' power to suppress insurrections would...

Justice Breyer: Well, you see my point.

My point is that there are many, many, many instances of non-commercial activity, when you collect them all together, that could have overwhelming effects on interstate commerce.

And so I want to know if you think in any of those myriads of examples... I won't be too far-fetched... the Congress is powerless to act simply because the cause of the major economic impact is itself not economic.

Mr. Rosman: Yes, Justice Breyer.

We think that is the best reading of Lopez.

Justice Breyer: Then the drug laws are also unconstitutional?

Mr. Rosman: The vast majority of Federal drug laws regulate the sale, manufacture, and possession with intent to sell of drugs.

Justice Kennedy: Yes, but what about...

Justice Breyer: Any of the Federal Government's is forbidden from regulating Federal drug laws for your own use in your own house.

Mr. Rosman: Unless... well, I do know, Your Honor, that 21 U.S.C. 801 has made various findings that tried to connect the possession of drugs to the interstate sale of drugs.

Whether that would distinguish Lopez or not, I don't know.

I think it would not.

Justice Breyer: So, if I reject your idea that Congress is powerless to act where the amazingly strong commercial activity... I see.

Sorry.

Where the... where the non-commercial activity has an overwhelming effect on interstate commerce, if I say I believe there Congress is power... empowered to act, at least in some cases, would you lose?

Mr. Rosman: No, I don't think so.

I think if you would... if you read Lopez as permitting the regulation of some non-economic conduct, I think it would have to be non-economic...

Justice Scalia: And you don't read it that way?

I'm not sure what your reading is.

Mr. Rosman: No, I do.

I do read it that way.

I... I read... I read Lopez as precluding the regulation of non-economic conduct.

I was responding to Justice Breyer's question which I thought the presumption of which was that Congress could regulate non-economic conduct.

And I was responding by noting that you could read Lopez, I suppose, to permit the regulation of non-economic conduct, but it would have to be in a way that differs from... the effect would differ from the effect that virtually important problem has on...

Justice Breyer: All right.

Then suppose if you're going to... if you're going to take a less extreme position, as I think you are, in this answer, what about a test that said, where a traditional activity of a State is at issue, what we will do is require that Congress address the federalism problem and explain why it believes in this traditional area a Federal solution is needed?

Mr. Rosman: That's an interesting solution, Justice Breyer, but I don't think it really relates to the text of the Constitution which permits Congress to regulate commerce among the States.

Justice Ginsburg: Mr. Rosman, on that point, you're not challenging, are you, any of the findings that Congress made that this is, indeed, a problem that affects the national economy because it impedes women's mobility, it impedes the jobs that they can take, the times of day that they work?

You're not challenging any of those findings, are you?

Mr. Rosman: I think we're challenging them, Justice Ginsburg, in the sense that Justice Scalia suggested earlier on today, in the sense that all of the studies that were done to support that finding are much broader and don't really relate to the specific conduct, gender-based, animus-motivated violence, which is the subject of this particular statute.

Justice Souter: What... what about the... the finding that there was a $3 billion effect on... on the gross national product for goods and services, of what I understood to be gender-based violence?

Is... is that... is that too far from the... from the causal connection that would satisfy you?

Mr. Rosman: Well, first, of course, this statute doesn't regulate simply gender based conduct, but gender based and animus-motivated conduct.

Justice Souter: Right.

It regulates a subset of it.

Mr. Rosman: I don't... I don't...

Justice Souter: What about the relevance of the $3 billion figure?

Mr. Rosman: Your Honor, findings could be made about virtually any activity and its effect on interstate commerce: marriage, divorce, virtually all crime

It has...

Justice Souter: But I think what that means is you're going back to the argument that you simply cannot regulate anything but economic activity as such because if you extend regulation beyond that, there is no stopping point.

That's really your...

Mr. Rosman: That's certainly our primary argument today.

That's correct.

Justice Souter: But if... let's assume that your primary argument, that pure position, is not accepted, is... is there something insufficient about the $3 billion finding to support this kind of legislation?

Mr. Rosman: I think what we were speaking about just a moment ago, the fact that the statute doesn't regulate the particular conduct...

Justice Souter: Well, it regulates a... a subset of it, the animus kind of violence.

And... and I would suppose that... I don't know that the Government made this argument, but I would suppose that it could reasonably be argued that from a finding that gender-based violence resulted in a... in a $3 billion effect on... on the economy, loss in gross product, that... that one could also infer that probably the substantial or... or a very substantial part of the... the violence that goes to produce the $3 billion effect was animus-based violence.

At least most... most gender-based violence I presume is animus-based violence.

Mr. Rosman: Well, I think that's the assumption that Congress made, and I'm not sure...

Justice Souter: Isn't that a... isn't that a reasonable assumption?

Mr. Rosman: I'm not sure that it is.

Justice Souter: Why not?

Mr. Rosman: Well, I... I'm not sure that Congress had any basis for believing it.

I think that's the best way of putting it.

Justice Scalia: What makes you think it's the assumption Congress made?

I... I'd assumed just the opposite, that it was very clear in the... in the legislative history that Congress understood it was... it was just addressing a... a narrow... a narrow spectrum of violence against women and wasn't enacting a general rape law.

Mr. Rosman: Correct, Justice Scalia.

What I was...

Justice Scalia: So, why do you think that Congress made the assumption that all... all rape or all violence against women is... is what you call gender-based?

Mr. Rosman: Well, I think that they concluded that it somehow constitutes a significant part of the economic effects of it.

But as you point out, that's contrary to their equally... well, it's contrary to the conclusion or the statements that are made in the legislative record...

Justice Souter: Well, but the...

Mr. Rosman: that this stuff does not constitute...

Justice Souter: No.

Finish your answer.

Mr. Rosman: does not constitute a significant part of gender-based animus...

Justice Stevens: What is your view of the proper standard this Court should employ to determine the accuracy of congressional findings?

Do we review the whole legislative history and decide for ourselves whether the evidence supports the findings, or what do we do?

Mr. Rosman: I think this Court... it's unclear after Lopez precisely the standard by which one reviews...

Justice Stevens: I'm asking what your view of the proper standard is.

Mr. Rosman: Actually, Justice Stevens, we don't think it much matters because the relationship that... between the conduct being regulated and... and the amount of commerce being affected is what defeats this... not...

Justice Stevens: Then do you agree that we should assume the findings are valid, or not?

And if not, why not?

Mr. Rosman: I think, Justice Stevens, that there's reason to question the findings with respect to gender-based, animus-motivated violence, but it does not affect our argument one way or the other if you do assume it.

Justice Stevens: So, in other... you say we should take the case on the assumption that findings are supported by the evidence.

Mr. Rosman: I don't... I don't believe the findings are supported by the evidence, but as I've said, we don't think that's...

Justice Stevens: But then I asked you what standard should we use to determine whether or not there are findings supported by the evidence.

Mr. Rosman: I see what you're saying.

In determining empirical effects, effects on the national economy, this Court can review under a rational basis test.

The question whether or not, though, the activity being regulated substantially affects interstate commerce is somewhat different.

This Court focused on two factors in making that determination in Lopez.

First, the nature of the activity being...

Justice Stevens: Well, Lopez doesn't address this question because there were no findings in Lopez.

And what I'm particularly interested in is your view of, one, what is the standard by which we should review the findings, if they're going to be reviewed, and secondly, does it matter whether we accept the findings or not?

And I'm not really clear on what your answer is to either of those questions.

Mr. Rosman: The answer to the second question is that it doesn't matter, and it doesn't matter...

Justice Stevens: Which means we can accept the findings and decide the case on the assumption they're valid in your view.

Mr. Rosman: Yes.

You can... you can still... you can still accept the findings and nonetheless affirm the judgment of the Fourth Circuit.

Justice Kennedy: Do you know of any case of ours that turned on the existence or non-existence of congressional findings?

Mr. Rosman: I do not, no.

Justice Kennedy: Do... have we said...

Justice Stevens: Have you read the Lopez opinion which makes quite a point of the absence of findings?

Unidentified Justice: [Laughter]

Mr. Rosman: I have, Justice Stevens, and I don't think it does make that much of a point of the absence of findings.

I think that the Fifth Circuit opinion in Lopez made a great deal of the absence of findings, but I think that this Court wrote a much, much different opinion.

This Court focused on the nature of the activity being regulated and the absence of a jurisdictional element.

It was set forth in the very first paragraph of the opinion and repeated throughout.

The possession of guns around schools was a non-economic activity, and that was so even though schools themselves buy things and employ people and, no doubt, have to divert resources when the violence is threatened.

Justice Scalia: Mr. Rosman, I'm concerned about, you know, the line you're... you're urging us to adopt that it has to be an economic activity.

I mean, you know, what about a gang that... the Jesse James gang that... that robs interstate trains?

That's what they do.

Violence directed against the actual organs of commerce.

We... the Federal Government would have no power to control that?

Mr. Rosman: Well, presumably that would fall under Congress' power to regulate the instrumentalities of commerce.

Chief Justice Rehnquist: Well, from Jesse James' point of view, it was economic.

[Laughter]

Mr. Rosman: Yes.

That's... it certainly was.

There are going to be, Justice Scalia...

Justice Scalia: Oh, I see.

So, all robbery is economic activity in your... in your estimation.

We can have a general Federal robbery statute because, after all, it's economic activity.

Mr. Rosman: I'm not sure that's the case because robbery is sort of... if you think of commerce as voluntary exchange, robbery is not commerce.

Justice Scalia: Well, but surely you have to broaden your... your argument to say beyond mere economic activity.

It has to be... you have to allow some ability of the Federal Government to reach activity that is directed against commerce whether it's economic activity in and of itself or not.

Mr. Rosman: Oh, the... the standard in Lopez and what I had understood the definition of economic activity to be was activity that arises out of or is connected to commercial activity.

Justice Souter: So, would you say that if an act of violence were... were committed simply for the... for the purpose of... of slowing the flow of goods in... in interstate activity that in fact that would, therefore, be subject to... to congressional regulation?

Mr. Rosman: I think that would constitute economic activity as the Court defined it in Lopez.

Justice Souter: Or even an act of violence on an interstate train or on an airline traveling interstate.

Mr. Rosman: Yes.

That's... that's correct.

If the purpose of the act is to disturb commercial activity...

Justice Souter: No, I don't care about its purpose.

That isn't its purpose.

The purpose was to get money from the passengers, but... but in fact it occurred in... in the stream of commerce.

Mr. Rosman: Well, I think the purpose is of some consequence, but I would agree with you that the particular examples that you identified would probably constitute economic conduct, as the Court identified it in Lopez.

Justice Souter: But your test, in any case... you've changed... not only you've changed it, but you've... you've modified your statement of your test to this extent.

Originally I thought the test was Congress could regulate only economic activity as such under the substantial effects prong.

But I take it now you're saying it may regulate economic activity as such and it may regulate non-economic activity if that activity was intended to affect economic activity.

Mr. Rosman: Well, that's... it certainly can do that, Justice Souter.

And I had understood... I had understood Lopez, when he characterized or described economic activity, to include activity connected to a commercial transaction, and I think that would fall...

Justice Souter: By... by intent for...

Mr. Rosman: Yes.

Justice Stevens: May I give you one example I'd be interested in your views on?

Assume a person wants to grow marijuana in his back yard for his own use and for no other purpose.

Could... does Congress have the power to prohibit that activity?

Mr. Rosman: I don't think so, Justice Stevens.

Justice Stevens: That's what I thought your view would be.

Mr. Rosman: And... and I would...

Justice Scalia: As opposed to wheat?

I mean, marijuana is different from wheat?

Is that...

[Laughter]

Mr. Rosman: Well, it... it... I was... I was going to provide that caveat, Justice Scalia...

[Laughter]

Justice Souter: Yes, but let's... let's assume...

Mr. Rosman: that... that in...

Justice Souter: let's assume the marijuana grower says I want to grow it in my back yard solely for my own use because I am sick of being gouged by the interstate marijuana market.

[Laughter]

Doesn't... doesn't that pass muster with you?

Mr. Rosman: There's always going to be some close cases.

I think the specific...

[Laughter]

I think the specific example...

Justice Souter: I thought I gave you an easy one.

[Laughter]

Justice Scalia: That's not a close case under our precedents.

It's not a close case at all.

Justice Souter: Well, I think it is a close case.

Justice Breyer: What if wheat... he's growing wheat in his back yard to eat?

Justice Stevens: Let me just pursue this, please, for this one thing.

Regulating a lawful market in wheat is one thing.

Regulating a... commerce in something that's forbidden to be sold is quite a different thing, and that's why I think you're quite right in saying that under your theory you could not... Congress would not have the power to prohibit mere possession of marijuana even though they would have the power to regulate possession and growth of wheat.

Mr. Rosman: I think there is that difference, Justice Stevens.

Thank you.

And what I was trying to say is that...

Justice Scalia: I see.

You... you read the Commerce Clause that Congress has the power to regulate lawful commerce.

Right?

Unlawful commerce, the sky is the limit.

[Laughter]

Congress has no power to regulate that.

Is that it?

Mr. Rosman: If... no, it has the power to regulate unlawful commerce.

The question is the... is the possession... the regulation of possession so necessary to the prohibition of marijuana in interstate commerce that Congress should be able to reach it, just as it was able to reach the growing of wheat in Wickard.

That's the question that needs to be answered before I could come up with a definitive response to the hypotheticals that have been given to me.

Justice Ginsburg: Mr. Rosman, can we return to gender-based violence?

Mr. Rosman: I'd like to, yes.

[Laughter]

Justice Ginsburg: And I thought you said, at least for purposes of this argument, you're willing to accept the findings that Congress made that this does, indeed, deter women's full participation in the national economy.

In taking a look at what Congress did here, they didn't do the things that this Congress has said they can.

They didn't commandeer any State legislators.

They did not displace the State legal system.

They just provided an alternate remedy in an alternate forum.

Now, why can't Congress do that if they say, here's the effect on commerce?

We're not taking over the States' domain.

We are just complementing what the States do.

It's another auxiliary action just as giving them money for training is permitted.

Why isn't that satisfactory?

Mr. Rosman: First, Justice Ginsburg, as we spoke about earlier, it's our view that the power to regulate is the power to preempt so that whether or not Congress has exercised that power in a specific instance ought not to determine whether something is within Congress' commerce power.

Second, we do think that this statute does displace some State policies in the same way that the Gun-Free School Zones Act displaced some State prerogatives.

After all, the Gun-Free School Zones Act didn't preempt anything at all, and yet this Court held that it was beyond Congress' commerce power.

What's being regulated here, of course, is conduct...

Justice Ginsburg: Could you just tell me what... what is the clash here?

Because I'm not sure I understand it.

Mr. Rosman: For example, there are various assumptions under the common law between... about parental immunities and torts between people in the same family.

This statute says when you consider whether or not something is or is not a felony, you must disregard the relationship.

Justice Ginsburg: And if you're in a State that... that has a similar statute, then there's no clash.

Mr. Rosman: If a State had a similar... I'm sorry... a statute that disregarded the relationship?

Justice Ginsburg: That was just like the Federal remedy.

Mr. Rosman: Yes, by... by definition if they have exactly the same statute, there would be no clash.

But virtually all States have a basic common law presumption about contact and torts within a family that this statute asks the Federal Government, the judiciary, to ignore.

Justice Ginsburg: Well, let's lay aside that for a moment and take this case that's before us.

There's no question of family relationship here.

Mr. Rosman: No, just as there was no particular conflict in Lopez.

There was a statute in Texas which did the same thing as... as the Federal statute.

Justice Scalia: May I ask you another question about a modest change in this statute?

Say... assume this statute had a requirement of proving a jurisdictional fact in each case, such as in a gun case, you have to prove the gun traveled in interstate commerce.

Supposing here a part of the cause of action was that the plaintiff had to prove that as a result of the act she sued on, she was unable to enter the labor market or unable to go to school or something like that.

Would that save the statute in your view?

Mr. Rosman: It would certainly be a different statute.

Justice Scalia: I understand it would be different.

Do you think it would save the statute in your view?

Mr. Rosman: I think... I think the jurisdictional element was one of the two elements that Lopez identified, and that, yes, it could very well.

Justice Kennedy: My question is, do you think it would save the statute if it had that element in this case?

Mr. Rosman: Without a little more knowledge about the exact jurisdictional element that you'd be adding, I think it would be impossible to say for sure.

But yes, it would be a much closer case and Congress, I think, by adding jurisdictional elements in general... your general idea of saving this kind of statute by adding jurisdictional elements we agree with.

Justice Kennedy: Can we talk for a few minutes about the Fourteenth Amendment argument?

Mr. Rosman: Sure, I'd love to.

Justice Kennedy: Suppose that Congress finds... and there's substantial evidence for the finding... that if black people are assaulted, prosecutors do not treat the crime as seriously as they do if there's a white person assaulted.

Could Congress pass a two part statute, severable: one, making it a Federal crime to assault a black person on... on account of his race; two, giving a civil remedy to a black person who was assaulted so that the black person could sue the white person

Mr. Rosman: Well, they certainly could do so, Justice Kennedy, but they'd be doing...

Justice Kennedy: Under its Fourteenth Amendment powers.

Mr. Rosman: Oh.

Then I think the answer is no, that they could not.

And the reason derives from the text of the constitutional provision.

The constitutional provision states that Congress shall enforce the prohibitions in section 1.

The prohibitions in section 1 are against the States.

It says no State shall do this, no State shall do that.

Justice Kennedy: Would you agree that in my hypothetical I've established that there is a general denial of equal protection?

Mr. Rosman: Yes, in your hypothetical I believe there was.

Justice Kennedy: But you're saying...

Mr. Rosman: Assuming that States were acting...

Justice Kennedy: that Congress is so limited in the remedies that it can choose, that it cannot create a private cause of action, which is really in a sense... we can argue about this, but in one sense less intrusive on that States?

Mr. Rosman: Well, the Fourteenth Amendment is intrusive on the States, Justice Kennedy, and this Court specifically considered statutes along the lines of what you're describing in United States v. Harris and the civil rights cases.

Congress...

Justice Breyer: I wouldn't think they made the argument that Justice Kennedy advanced; that is, as I understood his question, there is a clear finding that the State in its courts or in its legal system says where a black man and a white man are fighting it out in our legal system, the white man always wins, for example.

And so, to remedy that situation, to remedy that... nothing to do with the white man who's always winning... to remedy the failure of the court system to apply the law equally, we create an optional Federal remedy.

That's what I took as his basic question.

And my response to your answer would be could you explain it.

Why isn't that a perfectly good remedy for a State's failure to follow the Equal Protection Clause?

Mr. Rosman: First, as we've set forth in our brief, we think that's exactly the situation that existed in the civil rights cases.

Justice Breyer: That may be.

If it is, they didn't address the argument, and therefore, I would like to know the reasoning as to why that isn't a remedy for the State's deprivation of equal protection of the law.

Mr. Rosman: Because the text of the statute says that Congress will enforce the prohibitions...

Justice Breyer: They are enforcing the Equal Protection Clause.

The Equal Protection Clause... State, treat black people and white people alike.

State, you have failed to do that.

Therefore, we enforce that by giving the black person this Federal remedy.

Mr. Rosman: I don't believe that would be enforcement litigation because it would be doing... legislation... it would be doing nothing to the States to get them to comply with the Fourteenth Amendment.

It would be as if Congress decided that instead of having schools in the south to segregate in the 1950's, they would offer separate Federal schools.

That would not be enforcement legislation.

The proper... proper interpretation of section 5 is that Congress must do something so that the States are no longer engaging in the conduct which violates section 1.

Justice Scalia: You're saying section 5 does not provide, as a remedy for the State's failure to abide by the Constitution, the Federal Government's abolition of the Federal system.

Mr. Rosman: That's correct, Justice Scalia.

That's a very succinct way of putting it.

Yes.

Justice Ginsburg: Mr. Rosman, can... can I ask why, if we have in so many fields involving discrimination, parallel State and Federal regulation, public accommodations, employment, we don't say that that's a traditional area for the States just because they got there first, which they did?

In both areas there was State legislation before Federal.

So, if you can have harmonious legislation for public accommodations, for employment, then why not here?

Mr. Rosman: I take it we've moved back to the Commerce Clause, Justice Ginsburg.

And I think the answer to your question is because this isn't commerce.

The reason that there was harmonious legislation on both the Federal and State level in the examples that you described is that Congress is regulating commerce.

This is not commerce.

This is violence.

This is interpersonal violence, the kind of thing the States have always had the exclusive province of regulating since the start of our country.

Justice Souter: Going... going back to section 5, I take it on... on your view any civil remedy provided by Congress exceeds the section 5 power then.

Mr. Rosman: Any civil remedy...

Justice Souter: Yes.

Mr. Rosman: against private individuals?

Justice Souter: That... that may be brought by a private individual against a perpetrator.

Mr. Rosman: Against a private perpetrator.

Yes.

The answer to your question is yes.

Justice Souter: Okay.

Justice Scalia: Well, a private perpetrator who was engaged in a conspiracy that was acting under color of law?

Mr. Rosman: I had understood Justice Souter's question to refer to someone who was not acting under color of State authority.

You're quite correct.

Justice Scalia: But any private individual who... who is participating in a State's violation of an individual's rights can be sued privately.

Mr. Rosman: As this Court has been... has repeatedly said under section 1983.

But what Justice Frankfurter said in his plurality opinion in United States v. Williams is that an individual's interest in receiving a fair trial in State courts cannot be constitutionally vindicated by Federal prosecution of private persons.

That's essentially what this statute is trying to do, to create substantive Federal law to remedy State violations of the equal protection.

It is not enforcement litigation.

And, indeed, the various statutes that we spoke about just a moment ago, title VII, Equal Pay Act... thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Rosman.

The case is submitted.