In a
comment to my last post,
roach countered
my challenge with his own challenge to satisfy my burden of persuasion. I think his criticism is fair, and I accept it.
For starters, although I credit roach for his use of the word "apparent," I bristle at his suggestion that I "have no apparent sense of what congress can do under the commerce power." My true identity and professional background being largely a mystery, I don't blame anyone for assuming as their default position that I'm an incompetent buffoon. But I will take this occasion to disclose that I'm a former federal law clerk, and federalism happens to be one of my favorite substantive areas of constitutional law.
The Bill
The language of the bill, once again, states in relevant part:
The manufacturer, distributor, or seller of a food or non-alcoholic beverage product intended for human consumption shall not be subject to civil liability, in Federal or State court, whether stated in terms of negligence, strict liability, absolute liability, breach of warranty, or State statutory cause of action, relating to consumption of food or non-alcoholic beverage products unless the plaintiff proves that, at the time of sale, the product was not in compliance with applicable statutory and regulatory requirements.
The Constitution
As we know, the powers of our federal government are defined by our Constitution, and the government's authority simply does not exist but for the powers expressly enumerated and delegated to it by that document. See, e.g.,
U.S. Const. amend. X. One of those powers is the Interstate Commerce Clause found in Article I, Section 8, Clause 3 of the Constitution which provides that Congress "shall have Power..."
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
The Case Law
I suspect roach vastly underestimates and misunderstands the tremendous significance of Chief Justice Rehnquist's opinion in
Lopez v. United States, 514 U.S. 549 (1995). In
Lopez, the Supreme Court built upon a point first made in
Maryland v. Wirtz, 392 U.S. 183 (1968), that "[n]either here nor in
Wickard has the Court declared that Congress may use a relatively trivial impact on commerce as an
excuse for broad general regulation of state or private activities..." (emphasis added). I emphasize the word "excuse" and would add "unjustified" to it, because that is precisely what the Supreme Court and Congress relied upon for the several decades leading up to 1995.
Lopez put an effective end to that nonsense. In relevant part (and with citations omitted), the Chief Justice held:
Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.
Within this final category, admittedly, our case law has not been clear whether an activity must "affect" or "substantially affect" interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause. Compare Preseault v. ICC, 494 U.S. 1, 17, 110 S.Ct. 914, 924-925, 108 L.Ed.2d 1 (1990), with Wirtz, supra, at 196, n. 27, 88 S.Ct., at 2024, n. 27 (the Court has never declared that "Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities"). We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity "substantially affects" interstate commerce.
The Court then turned to the specific federal statute at issue before it, the Gun-Free School Zones Act, which essentially made it illegal for any individual to possess a firearm at a place the individual knows or has reasonable cause to believe is a school zone. The Court first observed that this gun law did not even purport to regulate "commerce" because it did not arise out of "economic activity." Let's assume that criticism cannot apply to the Cheeseburger Bill, and this factor does not, therefore, weigh against the constitutionality of the bill. Moving to additional factors, the Court observed:
Second, § 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce. For example, in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Court interpreted former 18 U.S.C. § 1202(a), which made it a crime for a felon to "receiv[e], posses[s], or transpor[t] in commerce or affecting commerce ... any firearm." 404 U.S., at 337, 92 S.Ct., at 517. The Court interpreted the possession component of § 1202(a) to require an additional nexus to interstate commerce both because the statute was ambiguous and because "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." Id., at 349, 92 S.Ct., at 523. The Bass Court set aside the conviction because, although the Government had demonstrated that Bass had possessed a firearm, it had failed "to show the requisite nexus with interstate commerce." Id., at 347, 92 S.Ct., at 522. The Court thus interpreted the statute to reserve the constitutional question whether Congress could regulate, without more, the "mere possession" of firearms. See id., at 339, n. 4, 92 S.Ct., at 518, n. 4; see also United States v. Five Gambling Devices, 346 U.S. 441, 448, 74 S.Ct. 190, 194, 98 L.Ed. 179 (1953) (plurality opinion) ("The principle is old and deeply imbedded in our jurisprudence that this Court will construe a statute in a manner that requires decision of serious constitutional questions only if the statutory language leaves no reasonable alternative"). Unlike the statute in Bass, § 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.
The Cheeseburger Bill was apparently written by legislators who either deliberately ignored or were ignorant of
Lopez, because it contains not even an arguable "jurisdictional element which would ensure, through case-by-case inquiry," that the law affects only those civil actions arising out of truly interstate commerce.
To counter this, my critics will surely point out numerous ways in which they believe the regulation of how and why plaintiffs in state civil courts can bring lawsuits against restaurants based on state tort law affects "interstate commerce." This is nothing new for the federal judiciary, for the Government (endorsed by a dissent from Justice Breyer) did the same thing in
Lopez, and the Chief Justice responded:
Under the theories that the Government presents in support of § 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.
[...]
To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30, 57 S.Ct., at 621. This we are unwilling to do.
Lopez was not the end of the story. Because Congress, like most of the public, apparently failed to understand how serious the Supreme Court was about reviving these principles of federalism, it suffered another rebuke from the Court in United States v. Morrison, 529 U.S. 598 (2000).
The bill here contains no provision purporting to limit its reach to interstate commerce. It springs into existence
federal regulation of
state tort liability in all 50 states for anyone who is a "manufacturer, distributor, or seller of a food or non-alcoholic beverage product intended for human consumption", unconditionally. That definition includes the hot dog vendor on the corner of the street. It includes your local family-owned pizza place. To suggest that such a broad and radically sweeping change in national tort law in our society can be made by a single act of Congress is patently absurd, and unconstitutional under
Lopez and progeny.
