Justices hint at curbing Congress on local crimes

November 09, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Several Supreme Court justices raised the prospect yesterday that, if they can gather enough votes from colleagues, they might move to cut back sharply on Congress' power to punish crimes that are normally handled by local police.

Scolding a Clinton administration lawyer for arguing for a sweeping view of Congress' authority to act against crime and other social problems, members of the court suggested during a hearing in a Texas gun control case that the court may need to limit that authority in order to preserve state and local governments' powers.

Under a 1990 law, Congress made it a crime to possess any gun, even an unloaded one, within 1,000 feet of a school. A federal appeals court struck down that law last year, saying that Congress had no basis for believing that this was a problem for the federal government to handle.

U.S. Solicitor General Drew S. Days III, defending that law's constitutionality, had been on his feet only a few minutes yesterday when Justice Anthony M. Kennedy suggested gloomily that the entire federal system of divided federal and state powers may now be in danger, and thus it may be time for the court to step in with some curbs on what Congress does.

Justice Sandra Day O'Connor jumped into the exchange, saying that if the school-zone gun ban was constitutional, "what is there that Congress could not do?"

Soon, Justice Antonin Scalia was taking up the challenge. Then, Justice Ruth Bader Ginsburg suggested that the Clinton administration's position would mean that "all violent crimes are placed under a federal wing" -- a result she appeared to view with skepticism.

Justice David H. Souter also led Mr. Days into a comment that Congress might even have authority to nationalize the nation's public schools, although the solicitor general added that the court might want to impose some limits on that kind of move.

Mr. Days sought to assure the court that he was not arguing for limitless legislative power for Congress.

John R. Carter, a San Antonio lawyer who spoke for a high school student who had been prosecuted under the federal law that bans guns from school zones, tried without success to keep his side of the argument confined to the constitutionality of that law.

The justices tried to get him to answer a range of questions about Congress' authority to take other forms of action to deal with violence and crime -- an indication that the justices were eager to explore how far a ruling against congressional authority might go.

In a separate hearing yesterday in a different case, several justices challenged another Clinton administration lawyer as he sought to defend Congress' power to ban all payments for outside speeches and writing by federal employees.

Deputy Solicitor General Paul Bender ran into a barrage of questions from the bench about Congress' authority to shut down on the outside "free speech" activities of federal employees.

Justice Kennedy questioned Mr. Bender about what proof Congress had that outside writing or speaking by federal employees was a serious problem. Mr. Bender said there were not much data, but that Congress simply knew how federal civil servants acted, so it had a basis for believing that they needed to be insulated from paid work outside their public jobs.

On the other side, Gregory O'Duden, a lawyer for a federal workers' union, sought to make only a narrow challenge to the ban on honorariums. When the justices pressed him on how far Congress could go to curb public employees' outside activities, Mr. O'Duden conceded that the Constitution allowed Congress to go quite far.

He conceded, in answering a series of questions by Justice Clarence Thomas, that Congress probably would have authority to ban all "moonlighting" by federal workers.

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