Morrison and Noneconomic Violence

Morrison and Noneconomic Violence

United States v. Morrison tested the analysis of United States v. Lopez five years later, on a statute with a different subject and a far heavier legislative record, and the Court reached the same result. Christy Brzonkala, a student at Virginia Polytechnic Institute, alleged that in September 1994 two members of the varsity football team, Antonio Morrison and James Crawford, assaulted and repeatedly raped her within thirty minutes of meeting them.¹ She sued under 42 U.S.C. § 13981, a provision of the Violence Against Women Act of 1994 that gave every person a right to be free from crimes of violence motivated by gender. It made anyone who commits such a crime liable to the injured party for compensatory and punitive damages, injunctive and declaratory relief, and other appropriate relief.² The district court dismissed the complaint because it concluded that Congress lacked authority to enact the remedy, the Fourth Circuit affirmed, and the Supreme Court affirmed in turn.³ Because the case came up on a motion to dismiss, the Court took the allegations as given and asked only whether Congress could create the remedy.

The first step under Lopez is to ask which of the three categories the remedy could occupy, and here the answer came quickly. Section 13981 does not regulate the channels of commerce or attempt to prohibit the interstate transport of a commodity through them, and it does not regulate the instrumentalities of interstate commerce or persons or things in interstate commerce. It could survive, if at all, only as a regulation of activity that substantially affects interstate commerce.⁴ A companion provision in the same Act shows what the first category looks like when Congress uses it. The federal crime now codified at 18 U.S.C. § 2261(a)(1) punishes a person who crosses a state line intending to injure, harass, or intimidate a spouse or intimate partner and who, in the course of or as a result of the travel, intentionally commits a violent crime causing bodily injury, and the courts of appeals have uniformly upheld it as a regulation of the use of the channels of commerce.⁵ The two provisions respond to the same kind of harm, yet they differ in what triggers federal power. The criminal statute attaches to travel across a state line, which is a use of an interstate route, while the civil remedy attached to gender-motivated violence wherever it occurred, so the only support left for it was the effect of that violence on commerce.

The first result did the most work. The challengers and a dissent had downplayed the role that the economic nature of the regulated activity played in Lopez, and the Court answered that a fair reading of Lopez shows the noneconomic, criminal nature of the conduct was central to that decision.¹¹ The third result is the one that distinguishes Morrison from Lopez on its face, because the remedy came with a heavy record where the school-zone statute had none. The Court nonetheless held that the existence of findings is not sufficient, by itself, to sustain Commerce Clause legislation, since whether particular operations affect commerce enough to come under the power is ultimately a judicial question.¹² It then looked at what the findings said. Congress had found that gender-motivated violence affects commerce by deterring potential victims from traveling interstate, from working in interstate business, and from transacting with businesses in places involved in interstate commerce, and by diminishing national productivity, raising medical and other costs, and reducing both the supply of and the demand for interstate products.¹³

Each item on that list is a real cost of violent crime, and that is the difficulty. The reasoning follows a but-for causal chain from the occurrence of violent crime, whose suppression has always been the prime object of the States' police power, to every attenuated effect on commerce, and the Court called it a method of reasoning already rejected as unworkable if the enumeration of powers is to mean anything.¹⁴ Every violent crime carries medical costs, lost work, and fear, so accepting the chain for one class of violence would allow Congress to regulate any crime whose nationwide, aggregated impact on employment, production, transit, or consumption is substantial. The Court added that gender-motivated violence is a subset of all violent crime and is certain to have lesser economic impacts than the larger class, which means that a Congress able to regulate the subset could regulate murder.¹⁵ The same chain reaches family law, because the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. Congress may have recognized that danger when it expressly excluded family law from the reach of § 13981, but the Court answered that under a written Constitution the limit on congressional authority is not solely a matter of legislative grace.¹⁶

From these steps the Court rejected the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce, and it said the Constitution requires a distinction between what is truly national and what is truly local.¹⁷ The holding is narrower than a flat ban on aggregating noneconomic conduct. The Court expressly declined to adopt a categorical rule against aggregating the effects of any noneconomic activity, and it observed instead that, so far, its cases have upheld regulation of intrastate activity on a substantial-effects theory only where the activity was economic in nature.¹⁸ Economic character matters because of what aggregation counts. When farmers grow wheat, as in Wickard v. Filburn, their combined decisions make up supply, demand, and price, so the sum is itself a commercial fact.¹⁹ When violence is repeated across the country, the sum is more violence, and its link to commerce arrives only through downstream costs such as medical bills and lost workdays. Counting those costs is the chain Lopez refused to follow, and the economic-activity consideration is the signal that a statute depends on it.

The Court closed its commerce analysis with the point about the police power, which explains why it was willing to set aside a record this thorough. It wrote that the regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States, and that it could think of no better example of the police power than the suppression of violent crime and the vindication of its victims.²⁰ The Court recalled Marshall's statement that Congress “has no general right to punish murder committed within any of the States.”²¹ The phrase directed at carries the teaching, because it names the routes by which Congress may reach violence: aim the statute at a channel, an instrumentality, or a person or thing in commerce, as § 2261 does. A statute that attaches to violence as such leaves the line between national and local with nothing to protect it. The practical consequence is that the victim's remedy lies in state criminal and tort law, which is where the Court located it, and not in the federal commerce power.²² The Court also held that § 5 of the Fourteenth Amendment could not support the remedy, because that Amendment reaches state action and not private violence, but the commerce holding is the subject here.²³

The dissents supply the strongest counterweight. Justice Souter's dissent, as the second dissent describes it, argued that history, precedent, and legal logic all oppose the majority's approach.²⁴ The majority replied in a footnote that this view treats the commerce power as having no judicially enforceable boundaries, which disregards the caution in NLRB v. Jones & Laughlin Steel Corp. against letting that power obliterate the distinction between what is national and what is local, a limit inherent in our dual system of government.²⁵ It added that in every case upholding regulation under the aggregation principle of Wickard, the regulated activity was of an apparent commercial character.²⁶ The second dissent attacked the economic line at its weakest point, which is administration. It asked whether a street-corner mugger who mugs for money engages in economic or noneconomic activity, and it observed that the Court's own exceptions blur the line further: Congress may aggregate noneconomic discrimination at motels and restaurants, as in Heart of Atlanta Motel, Inc. v. United States and Katzenbach v. McClung, and may regulate noneconomic activity that is an essential part of a larger economic scheme.²⁷ It then asked whether Congress could simply rewrite the struck-down remedy to cover hotels, restaurants, and universities, or fold it into a broader workplace-safety act, and why the economic or noneconomic nature of a cause should matter when the constitutional text speaks only of commerce among the States.²⁸ The majority did not answer those questions with a sharper line. It relied on the position taken in Lopez, that so long as congressional powers are enumerated and have judicially enforceable outer limits, legislation under the Commerce Clause will always carry some legal uncertainty.²⁹

On an exam, the usual error is reading Morrison as barring all federal regulation of violence. The case bars only the regulation of noneconomic, violent criminal conduct on the sole ground of its aggregate effect on commerce. Congress can still reach violence through the first two categories, as the travel crime in § 2261 shows, and a jurisdictional element would have lent support to the remedy, although the Court treated it as one consideration and not a guarantee.³⁰ A second error is to treat the quantity or seriousness of the findings as enough, since the findings failed because of the reasoning they used. A strong answer names the category, runs the four considerations, and notes that the economic line is contested, because the dissents show it is hard to administer. The next sections turn to the other side of the economic line, where the Court sustained aggregation of local activity inside a comprehensive economic scheme.³¹