Duquesne Law Review


In United States v. Lopez, the Supreme Court held for the first time in almost sixty years that Congress had exceeded its power to regulate interstate commerce. Lopez struck down the Gun-Free School Zones Act of 1990, which prohibited possession of firearms within one thousand feet of a school. More important is the basic change that Lopez made in Commerce Clause analysis. A long line of Supreme Court cases had consistently held that whether Congress could regulate an activity depended on whether the activity affected interstate commerce. Lopez continues that requirement, but also adds considerations of state sovereignty that had previously been limited to the Court's Tenth Amendment cases. Thus, Lopez implicitly combines two previously separate limitations on the commerce power into a heightened scrutiny of federal legislation regulating areas of traditional concern to the states. Lopez still permits broad federal regulation of commercial activity, and thus leaves open means for Congress to regulate most activities by regulating associated commercial aspects, provided that Congress includes specific jurisdictional language in the statute.

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