United States v. Morrison: a power separation case (in addition to that of the Commerce Clause)

United States v. Morrison: a power separation case (in addition to that of the Commerce Clause)

Briefly, in addition to be a landmark case on the relationship between Federal government (congress) and the states, United States v. Morrison, 529 U.S. 598 (2000), is also a case addressing the separation of power within the federal system — between the Congress and the Judiciary.

By citing United States v. Lopez, 514 U.S. 549 (1995), Morrison assessed the constitutionality ofViolence Against Women Act (“VAWA”), a statute passed by the U.S. Congress. The basic logic of the majority opinion is set out below.

First of all, to find if the congress’s legislation is within its power of the Commerce Clause of the U.S. Constitution, the court based its reasoning on the rules created in Lopez.  In short, the Court firstly excluded the applications of the first two of the three categories of regulatible activities in this case: (1) the “channle of interstate commerce” or (2) the “instrumentality of interstate commerce”.  Then the court focused its analysis on whether the activity regulated by the VAWA would “substantially affect interstate commerce”, which is the third category of the activities that can be legally regulated by congress, as ruled in Lopez.

The court has summarized the Lopez case into four elements in determining the issue of “substantial effect”:

First, whether [the regulation to be assessed] was “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise”.  If the statute were to regulate conducts with noneconomic and criminal nature, then it would be out of the Congress’s power.

Second, is there any “express jurisdictional element which might limit [the regulation’s] reach to [particular activities] that have an explicit connection with or effect on interstate commerce.”

Third: whether the questioned regulation itself or its legislative history expressed congressional findings regarding the effect upon interstate commerce…

Finally: whether “the link between [the regulated activity] and a substantial effect on interstate commerce was attenuated.”

Based on the above summary, the Court reasoned its holding that VAWA was unconstitutional, on the following basis:

First, “gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”

Second, “§ 13981 [i.e. the challenged statute] contains no jurisdictional element.”

Third, although the VAWA “is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families”, the Court held that “… the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.” The majority opinion further quoted Justice Black’s concurring opinion in the case of Heart of Atlantic Motel: “whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.” Morrison, quoting Heart of Atlanta Motel v. United States. 379 U.S. 241, 273 (1964).  If one reads carefully, she would found that the discussion has no longer been focusing on the relationship between federal government and the states, but evolved to the separation of power between the congress and the court.

In other words, in the majority’s view, the Supreme Court has the final power in assessing whether the findings of congress (in supporting its legislations) are sufficient to support its argument of “substantial effects” to the interstate commerce.

In Justice Souter’s dissenting opinion, he did not deny this power of the Supreme Court.  Instead, he took a position that is on the one hand admitting the capability of congress but on the other hand appeared retaining the judiciary’s final power in deciding whether an activity “substantially affects” the interstate commerce: “The fact of such a substantial effect is not an issue for the courts in the first instance, ibid., but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its conclusion, whether explicitly or not, that facts support its exercise of the commerce power. The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact. See ibid. Any explicit findings that Congress chooses to make, though not dispositive of the question of rationality, may advance judicial review by identifying factual authority on which Congress relied.

What does “… [N]ot for soundness but simply for the rationality…” mean?

What does “though not dipositive of the question of rationality, may advance judicial review by identifgying factual authority on which congress relied.” mean?

These issues are not just a matter of the Commerce Clause, but a matter of separation of power, which remain to be answered in further cases.