The Court Follows Election Returns

April 28, 1995

The Supreme Court follows the election returns, a cynical journalist once said, and on Wednesday justices demonstrated the truth of that about as clearly as has been done in six decades. What the court did, in striking down the federal Gun-Free Zones Act of 1990, was almost a celebration in reverse of the court's 1937 ruling that began 58 unbroken years of assertion that federal law is always supreme over state laws when the Commerce Clause of the Constitution is invoked.

The Commerce Clause gives Congress the "power . . . to regulate commerce with foreign nations and among the several states." The Gun-Free Zones Act said carrying a gun within 1,000 feet of a school was a federal offense, because fear of crime lowered students' achievement and made them less productive when they entered the work force, thus affecting commerce. The court threw out that argument and, therefore, the law.

In 1935-1936, the court dismissed Commerce Clause justifications several times in invalidating New Deal laws. But then, after a landslide 1936 victory for President Franklin D. Roosevelt and the Democratic Congress, the court reversed itself in 1937. Ever since, Supreme Courts accepted Congress' Commerce Clause rationale for federalizing what used to be state responsibilities.

Justices now have broken that 58-year string in their first opportunity to rule on the question since the 1994 victory of the Republican "Contract with America" and much subsequent congressional rhetoric about returning power from Washington back to the states.

The Supreme Court takes new turns all the time. But only once in a rare moment does it deviate from so consistent a line of rulings on a question of such political importance. So this may be a signal to the Republican Congress that it may "devolve" as much power as it chooses back to states.

The court picked a good case to tell the federal government it had gone too far. In the first place, law enforcement -- safety -- in around threatened schools can be carried out by state or local officers. States have shown no reluctance to write and enforce their own laws regarding school safety, specifically involving gun prohibition. At least 40 states, including Maryland, have laws that do some or all of what the now dead law federalized.

In the second place, Congress made only the most tenuous linkage between safe schools and economic activity. If students' fear of crime justified federal oversight of school policies under the Commerce Clause, wrote Chief Justice William Rehnquist, then anything goes, including federal dictation of curriculum. Liberal Harvard law professor Laurence Tribe is right when he says, "If ever there was an act that exceeded Congress' commerce power, this was it."

This decision is not a bugle call to Congress to turn everything back to the states, but to be very, very careful in invoking the Commerce Clause for federal laws that displace state laws.

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