While We’re On The Subject, Lopez Is Nonsense
So today some federal judge in Texas has ruled that a CDC moratorium on evictions, as an emergency relief measure during the pandemic, is unconstitutional. Not just that it exceeded the agency’s statutory powers or whatever; no, it exceeds the actual powers of Congress under the Commerce and Necessary and Proper Clauses. (Never mind for now that this is a bad formulation and that’s not actually how the N&P Clause works.)
Here’s a key passage that’s getting a lot of attention:
The basic logic here is as follows. Federal power under the Commerce Clause is held to encompass three basic categories:
(1) Regulating the use of the channels of interstate commerce — think highways and railroads and such;
(2) Regulating the instrumentalities of interstate commerce, as well as people or things that move in interstate commerce; and
(3) Regulating activities with a substantial relation to, or a significant effect upon, interstate commerce.
That’s how United States v. Lopez (1995) summarized the law, anyway. And what Lopez did was as follows. First, the Court (in an opinion by Chief Justice Rehnquist) observed that the 1942 decision Wickard v. Filburn had taken an extravagantly broad view of the third category of congressional power. Under Wickard, Congress may regulate even those wholly intrastate activities that do not, by themselves, have any significant impact on the national economy, so long as that kind of activity in the aggregate does. (The specific example in Wickard was a farmer growing wheat on his own farm for personal consumption, in defiance of national agriculture policy; the idea was that similar behavior on a broad enough scale would lower the market demand for wheat, and therefore affect wheat prices.)
This bothered the Lopez Court, but the conservatives did not quite have the will or the votes to overturn Wickard outright. So instead they tried to limit it in the following preposterous way. Okay, the Court said, perhaps you can regulate intrastate activity that only affects interstate commerce in the aggregate, but! That activity must itself be “economic” in nature. Applied to the facts of the particular case, this meant that the federal law banning possession of a gun near a school was unconstitutional, as carrying a gun is not “commerce.”
Now never mind the conflation of “commerce,” as the Constitution uses the word, with “economic activity,” a fiction John Marshall dispensed with two hundred years ago that all our originalists love to believe in nevertheless. Focus on the basic illogic of the Lopez rule. Because remember, the claim of federal power in Wickard, Lopez, and other similar cases in no way rests on the proposition that the object of regulation is itself “commerce among the several states.” The claim is only that it bears upon interstate commerce, and therefore falls under the power to regulate interstate commerce by necessary implication. We may think of this as invoking the Necessary and Proper Clause if we like, though it is wrong to say that these sorts of laws are using the “Necessary and Proper Clause power” or what-have you. (The better view is simply that the N&P Clause informs our interpretation of the other clauses, specifically in that it affords Congress a generous choice of means by which to effectuate its various powers.)
This being the case, why in the world should the character of the activity being regulated matter?? It is confessedly not “among the several states,” and it is therefore no more “commerce among the several states” if it happens to be commerce than if it does not! And there is no rhyme or reason why the kinds of activities which might bear on interstate commerce are limited to those that are themselves commercial. The point isn’t that Lopez restricts federal power too much, although I do think that as well. If they had wanted to just overturn Wickard that would have been one thing! Instead they crafted a rule that just ignores the actual chain of reasoning supporting federal power in these sorts of cases and draws instead on a vague aesthetic that Congress is supposed to have power over “the economy” and not other, more local/private matters.
And so, sure, it’s ridiculous for a federal judge to say that eviction is not an economic affair. But the rule it’s applying, the decision that makes that question relevant in the first place, is already ridiculous enough to begin with.
