CIR Wins Historic Commerce Clause Case

Supreme Court drawing depicting CIR’s Michael Rosman arguing before Supreme Court Justices.

On May 15, 2000, the Supreme Court decided one of the defining Commerce Clause cases of the last twenty years. In cooperation with attorney David Paxton of Gentry Locke Rakes & Moore, CIR spent four years bringing Morrison to the Supreme Court on the theory that individual rights are best protected when Congressional authority is limited and the principles of federalism prevail. The Supreme Court agreed with CIR, and to date Morrison remains a landmark of Commerce Clause jurisprudence and one of CIR’s greatest victories.

The case began when Antonio Morrison, a student and football player at Virginia Tech, was accused of assaulting and raping fellow student Christy Brzonkala. Antonio denied the charges, but was brought before a school discipline committee and suspended for two semesters. However, during a second hearing, the school determined there was only enough evidence to charge Antonio with use of “Abusive Language.” The school dropped Antonio’s suspension and he was able to return to school immediately.

Brzonkala never filed criminal charges because she claimed she had no physical evidence. Because of this lack of evidence, Brzonkala did not press charges in the state criminal law court. However, aided by Legal Momentum, a national feminist advocacy organization, Brzonkala instead filed suit in federal district court under the recently passed Violence Against Women Act (VAWA).

Congressional Overreach Into Criminal Law

“It is easy for members of Congress — even the many lawyers there — to overlook the long-term benefits of the federal structure when considering politically symbolic legislation with strong backing from ideological interest groups. That is why it is important for courts to serve as a constitutional backstop. No constitutional principle is more central to our system of government than the idea that power must be divided among different hands.” ~ Constitutional Scholar Michael McConnell

Congress enacted VAWA in 1994, making it a federal crime to commit any act of violence motivated by gender. Relying on the Commerce Clause of the Constitution, Congress created a federal “right to be free from crimes of violence motivated by gender.” The act allowed any victim of a crime motivated by gender to bring a civil action in federal court, even if a crime had never been proved in a state criminal law court.

The District Court immediately dismissed the claims against Antonio and declared VAWA an unconstitutional overreach of Congressional power under the Commerce Clause. The Commerce Clause was originally intended to allow Congress to regulate the flow of goods between the different states. However, Congress has repeatedly attempted to use the Commerce Clause to regulate wholly intrastate activities that may have a minor effect on interstate commerce.

CIR agreed to assist in representing Antonio on appeal.  We were motivated by the belief that words in the Constitution must have meaning. Congress used the Commerce Clause to justify its power, but VAWA regulated violent crime, not commerce. If the Commerce Clause allows Congress to regulate anything – no matter how minor or attenuated its relationship to commerce –  then Congress would have the power to pass virtually any legislation imaginable. As the District Court judge explained in Morrison, if congress can regulate violent crime because it affects interstate commerce, they can also regulate insomnia, which has a far greater effect on commerce than crimes motivated by gender.  The Founders believed that confining the federal government to explicit enumerated powers — that is, a limited government — best protected individual liberty.

“The Commerce Power is based on a reasonable effect on interstate commerce, not on Congress’s perceived effect on commerce.” ~ District Judge Jackson L. Kiser

In addition to the problems raised by the Commerce Clause, CIR also argued that Congress breached the principles of federalism by usurping the power of the states to administer criminal law. There are many good reasons why criminal law is traditionally left to the states. The Founding Fathers never envisioned a federal government with the power to regulate local conduct. A federal government that is free to punish infractions of local laws on a national scale threatens the liberty of individuals, who are simply overpowered by national interests that are indifferent to individual guilt or innocence. , Though Antonio Morrison was cleared by his school [and by the District Attorney or the grand jury, if true], he was forced to defend himself all over again against a federal lawsuit on the basis of allegations twice deemed too flimsy to support a case.

A New Direction for the Commerce Clause

CIR’s effort to restore traditional notions of limited government based on a federalist system faced fifty years of entrenched precedent that favored expansive Congressional authority. When Brzonkala appealed her claim to the Fourth Circuit Court of Appeals, that court overturned our victory at the district court and upheld the seemingly settled view that the Commerce Clause offered Congress a blank check of regulatory power going back to the the era of the New Deal and Roosevelt’s court packing scheme, when the Supreme Court drastically expanded the definition of “commerce” and allowed Congress to regulate nearly anything they claimed affected interstate commerce. This orthodoxy held sway for over half a century. However, things began to change under the Rehnquist Court in the late 1990s.

Around the time Antonio Morrison was first charged in Federal District Court, the Supreme Court decided the landmark case of U.S. v. Lopez. At issue in Lopez was a law in which Congress made it illegal to carry a firearm within a certain radius of a school building. Congress justified this law under the Commerce Clause. The Rehnquist Court, however, found the law unconstitutional because the subject matter had “nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.”

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Antonio Morrison’s mother on the steps of the Supreme Court.

Bolstered by this new positive direction in Commerce Clause jurisprudence, CIR appealed Antonio Morrison’s loss at the Fourth Circuit to the Supreme Court. Morrison was CIR attorney Michael Rosman’s first appearance before the Supreme Court, and despite facing the well-funded feminist organizations and the Clinton Administration attorneys defending VAWA, he scored a victory that vindicated Antonio Morrison’s individual rights and protected the classical principles of federalism.

In a 5-4 decision authored by Justice Rehnquist, the Supreme Court agreed with CIR and struck down the civil remedies provision of VAWA. Justice Rehnquist, writing for the Court, observed the importance of the case by noting, “The concern… that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well founded.”

“We can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” ~ Chief Justice William Rehnquist

Together with U.S. v. Lopez, Morrison stands as one of the turning points in Commerce Clause jurisprudence. After the excesses of the New Deal, the principles of the constitution were called upon to place real limits on Congressional power. As CIR’s Michael Rosman explained in wake of the victory, “The court is now requiring congress to toe the constitutional line.”

The effect of these changes in Commerce Clause jurisprudence can be seen in the recent case of NFIB v. Sebelius. In that case the Court considered the constitutionality of the Affordable Health Care Act’s individual mandate to purchase health insurance. Five of the justices, citing to Morrison eight times, agreed that such expansive power could not be justified under the Commerce Clause. Because the Commerce Clause no longer gave Congress carte blanche to regulate as it pleased, a coalition of justices had to resort to an act of legal juggling to preserve the law under Congress’ taxing power.

Over fifteen years later, Morrison is now required reading in many Constitutional Law classes and is universally recognized as one of the landmark Commerce Clause cases and a victory for individual rights.

Case Status: Victory. Morrision is one of the defining Commerce Clause precedents of the decade.

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