PA 700
Fall 2007
San Mateo Cohort
Some Examples of Important Supreme Court Opinions in Public Administration
| Students | Case to be prepared to discuss |
| Valerie, Jerry, Patrix, Lawrence, Garrett, | Case 1: Freedom of Speech |
| Irene, Francisco, Shelly, Richard, Mark, | Case 2: Right to Disobey |
| Mina, Sandra, Bianca, Alice, Elida | Case 3: Qualified Immunity from Suit |
| Mike, Karen, Robert, Patricia | Case 4:Qualified Immunity when Privatization |
| Angela, Sandra, Lisa, Sheryl | Case 5: Federal vs. State Authority |
Note: If your name does not appear on the above list, please select any one of the four cases.
Please read the case you are assigned and be prepared to discuss the questions that follow it.
Case 1
PUBLIC EMPLOYEES' FREEDOM OF SPEECH AND ADMINISTRATIVE EFFICIENCY
Walter H. Rankin etc., et al v. Ardith McPherson.
No. 85-2068.
Decided June 24, 1987. 107 S. Ct. 2891
Summary
Former clerical employee in county constable's office brought suit against constable and county, alleging that she was denied her First and Fourteenth Amendments rights when she was fired by constable for political remark made to co-employee during private conversation. The Supreme Court held that: (1) statement by employee, made in course of conversation with co-employee addressing policies of President's administration, that, "if they go for him again, I hope they get him" dealt with matter of public concern, and (2) constable's interest in discharging clerical employee in constable's office for making statement did not outweigh employee's rights under First Amendment.
Opinion
Justice MARSHALL delivered the opinion of the Court.
Ardith McPherson was a deputy in the office of the constable of Harris County, Texas. She was not a commissioned peace officer, did not wear a uniform, and was not authorized to make arrests or permitted to carry a gun. McPherson's duties were purely clerical. Her work station was a desk at which there was no telephone, in a room to which the public did not have ready access.
On March, 30,1981, McPherson and some fellow employees heard on a office radio that there had been an attempt to assassinate the President of the United States. Upon hearing that report, McPherson engaged a co-worker, Lawrence Jackson, who was apparently her boyfriend, in a brief conversation, [in] which [she remarked] “…if they go for him again, I hope they get him."
McPherson's was overheard by another deputy constable, who, unbeknownst to McPherson, was in the room at the time. The remark was reported to Constable Rankin, who summoned McPherson. McPherson readily admitted that she had made the statement, but testified that she told Rankin, upon being asked if she made the statement, "Yes, but I didn't mean anything by it." . . . Rankin fired McPherson.
McPherson brought suit … under 42 U.S.C. § 1983, alleging that petitioner Rankin, in discharging her, had violated her constitutional rights under color of state law.
It is clearly established that a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech.... Even though McPherson was merely a probationary employee, and even if she could have been discharged for any reason or for no reason at all, she may nonetheless be entitled to reinstatement if she was discharged for exercising her constitutional right to freedom of expression....
The determination whether a public employer has properly discharged an employee for engaging in speech requires "a balance between the interests of the [employee], [sic] as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.". . . This balancing is necessary in order to accommodate the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment. On one hand, public employers are employers, concerned with the efficient function of their operations: review of every personnel decision made by a public employer could, in the long run, hamper the performance of public functions. On the other hand, "the threat of dismissal from public employment is ... a potent means of inhibiting speech."... Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply be cause superiors disagree with the content of employees' speech.
The threshold question in applying this balancing test is whether McPherson's speech may be "fairly characterized as constituting speech on a matter of public concern." . . .
Considering the statement in context ... discloses that it plainly dealt with a matter of public concern. The statement was made in the course of a conversation addressing the policies of the President's administration. It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. While a statement that amounted to a threat to kill the President would not be protected by the First Amendment… McPherson's statement did not amount to a threat.... The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. "[Debate on public issues should be uninhibited, robust, and wide-open, and ... may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."...
Because McPherson's statement addressed a matter of public concern, [precedent]
next requires that we balance McPherson's interest in making her statement
against "the interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees."… In performing the
balancing, the statement will not be considered in a vacuum; the manner, time,
and place of the employee's expression are relevant, as is the context in which
the dispute arose....
We have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise....
These considerations, and indeed the very nature of the balancing test, make apparent that the state interest element of the test focuses on the effective functioning of the public employer's enterprise. Interference with work, personnel relationships, or the speaker's job performance can detract from the public employer's function; avoiding such interference can be a strong state interest. …There is no evidence that [McPherson’s statement] interfered with the efficient functioning of the office. Constable Rankin testified that the possibility of interference with the functions of the Constable's office had not been a consideration in his discharge of respondent.
Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson's speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. Where, as here, an employee serves no confidential, policymaking, or public contact role, the danger to the agency's successful function from that employee's private speech is minimal.
McPherson's position in the office, and the nature of her statement, we are not persuaded that Rankin's interest in discharging her outweighed her rights under the First Amendment.
*********
Please be prepared to provide the class with a brief summary of the case and the majority opinion, and to address the following questions:
Case 2
PUBLIC ADMINISTRATORS' CONSTITUTIONAL RIGHT TO DISOBEY
Harley v. Schuylkill County et al.
Civ. A. No. 78-861.
United States District Court, E. D. Pennsylvania.
Aug. 23, 1979. 476 F. Supp. 191
Discharged prison guard filed civil rights suit against county and warden, alleging that his discharge was wrongful in that it was a deprivation of his liberty interest without according him due process, constituted a violation of his First Amendment rights, was based on his refusal to perform an unconstitutional act, and constituted a violation of rights secured under the Pennsylvania Constitution. The District Court held that: (1) the right to refuse to perform an unconstitutional act is a right "secured by the Constitution." Accordingly the prison guard had the right to refrain from performing an act, ordered by the warden, which would have deprived prisoner of his constitutional rights, and (2) a county is liable for acts of its employees which violate Article 1, Section I of the Pennsylvania Constitution, where those employees are acting within the scope of their official duties.
Opinion
District Judge Huyett:
Plaintiff John R. Harley has brought this civil rights action, raising a variety of theories in support of his request for relief…
There now remain[s] before us ... [the] issue [ ] for decision: ... whether the right to refuse to perform an unconstitutional act is a "right, privilege, or immunity secured by the Constitution and laws" within the meaning of 42 U.S.C. § 1983; ...
The complaint alleges that plaintiff John Harley was employed by the Schuylkill County Prison as a prison guard. On February 28, 1976, plaintiff reported to work on the second shift and was informed by the Acting Deputy of the First Shift that defendant Joseph Dooley, at that time the Acting Warden had left orders that inmate Kenneth Hennessey was to "stand check" in front of his cell, even if he had to be dragged from his cell.... Upon examining Hennessey, plaintiff discovered that the inmate had previously been beaten and, in fact, Hennessey informed plaintiff that he had been dragged from his cell and beaten because he refused to stand check.... Hennessey further informed plaintiff that he had refused to stand check because of his religious beliefs....
Plaintiff determined that Hennessey intended to refuse to stand check again, and that at that time, under the circumstances, the only way that the "check could be effectuated would have been to use unwarranted force, which would aggravate Hennessey's injuries.". . . Plaintiff then proceeded, at the time of the first check, to secure Hennessey's cell and file a conduct report instead of forcing Hennessey to stand check....
Later that evening, plaintiff informed Dooley of these events and stated that in plaintiff’s opinion further physical abuse of Hennessey would be illegal and improper under the circumstances.... Dooley stated that he wanted Hennessey to stand check no matter what the circum stances and insisted that Hennessey be dragged from his cell.... Plaintiff continued to refuse to obey this order because he felt that it was immoral and illegal. The complaint further alleged that the orders given by Dooley were unconstitutional, and that "their effectuation deprived Hennessey of his Fourth, Eighth, and Fourteenth Amendment Rights, and such orders, if carried out by plaintiff, would have subjected plaintiff to liability for such unconstitutional acts.". . -
The Commissioners' reasons for discharging plaintiff were widely reported in area newspaper articles. According to those reports, plaintiff was discharged for causing dissension between Dooley and the guards in the second shift.... One of the defendants also appeared on a radio talk show and stated that plaintiff was dismissed for insubordination....
Plaintiff alleges that the reasons given for his discharge were false. Finally, plaintiff alleges that, as a result of his discharge and the resultant injury to his good name and reputation, he was unable to find employment for approximately one year.... Additionally, plaintiff alleges that his political affiliation was a substantial factor in his discharge....
Plaintiff is asserting a right personal to him; the right to refuse an order which would result in the violation of another's constitutional rights. The question presented here is whether this "right" is a “right[s], privileges, or immunit[y] se- cured by the Constitution and laws."
We are confident that the
right to refuse to violate another's federal constitutional rights is a right
secured by the constitution.
Under the facts as alleged in the complaint, plaintiff would have been liable for a deprivation of Hennessey's constitutional rights if he had proceeded to obey the order given to him.... To put the matter another way, plaintiff had a clear duty under the constitution to refrain from acting in a manner that would deprive Hennessey of his constitutional rights. If plaintiff is under a duty to refrain from performing an act, then we believe that he has the concurrent right to so act. To hold otherwise would create an unconscionable burden upon one charged with the duty to uphold another's constitutional rights.
The issue remaining is whether that right is one "secured by the Constitution." The duty to refrain from acting in a manner which would deprive another of constitutional rights is a duty created and imposed by the constitution itself. It is logical to believe that the concurrent right is also one which is created and secured by the constitution. Therefore, we hold that the right to refuse to perform an unconstitutional act is a right "secured by the Constitution" within the meaning of § 1983.
We believe that our conclusion is sup ported by strong policy considerations. Parties such as plaintiff, who are acting in the capacities of prison administrators, policemen and the like, may daily be faced with situations where they are required to act in a manner which is consonant with the constitutional rights of others who are subject to their authority. The potential for abuse in these situations scarcely needs to be mentioned. If such persons are to be encouraged to respect the constitutional rights of others, they must at least have the minimal assurance that their actions are also protected by the constitution in those cases where they are confronted with the difficult choice of obeying an official order or violating another's constitutional rights.
*********
Please be prepared to provide a brief summary of the case, and the majority opinion to the class and to address the following questions:
Case 3
QUALIFIED IMMUNITY: WHEN PUBLIC ADMINISTRATORS ARE SUED
Harlow and Butterfield v. Fitzgerald
457 US 800 [No. 80-945]
Decided June 24, 1982.
Summary
A civilian employee of the Department of the Air Force was terminated from his position. He instituted a suit for civil damages in the United States District Court for the District of Columbia against two senior aides and advisers of the President of the United States, alleging that they participated in a conspiracy to violate his constitutional and statutory rights, and entered the conspiracy in their official capacities, to effect his unlawful discharge.
[T]he District Court ... ruled that the aides were not entitled to absolute immunity. The aides appealed the denial of their immunity defense to the United States Court of Appeals for the District of Columbia, which dismissed the appeal.
Opinion
Justice Powell delivered the opinion of the Court.
The issue in this case is the scope of the immunity available to the senior aides and advisers of the President of the United States in a suit for damages based upon their official acts.
In this suit for civil damages petitioners Bryce Harlow and Alexander Butterfield are alleged to have participated in a conspiracy to violate the constitutional and statutory rights of the respondent A. Ernest Fitzgerald....
Petitioner Butterfield, employed as Deputy Assistant to the President and Deputy Chief of Staff to H. R. Haldeman, circulated a White House memorandum in that month in which he claimed to have learned that Fitzgerald planned to "blow the whistle" on some "shoddy purchasing practices" by exposing these practices to public view. Fitzgerald characterizes this memorandum as evidence that Butterfield had commenced efforts to secure Fitzgerald's retaliatory dismissal.
... [O]ur decisions consistently have held that Government officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.
Our decisions have recognized immunity defenses of two kinds. For officials whose special functions or constitutional status requires complete protection from suit, we have recognized the defense of "absolute immunity." The absolute immunity of legislators, in their legislative functions... and of judges, in their judicial functions, . . . now is well settled. Our decisions also have extended absolute immunity to certain officials of the Executive Branch. These include prosecutors and similar officials.... executive officers engaged in adjudicative functions ... and the President of the United States ...
For executive officials in general, however, our cases make plain that qualified immunity represents the norm. In Scheuer v Rhodes [1974] ... we acknowledged that high officials require greater protection than those with less complex discretionary responsibilities. Nonetheless, we held that a governor and his aides could receive the requisite protection from qualified or good-faith immunity....
In Butz v Economou [19781 we … explained that the recognition of a qualified immunity defense for high executives reflected an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens.... but also "the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." ….The Court held that "federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope."
... In order to establish entitlement to absolute immunity a Presidential aide first must show that the responsibilities of his office embraced a function so sensitive as to require a total shield from liability. He then must demonstrate that he was discharging the protected function when performing the act for which liability is asserted.
Applying these standards to the claims advanced by petitioners Harlow and Butterfield, we cannot conclude on the record before us that either has shown that "public policy requires [for any of the functions of his office] an exemption of [absolute] scope." . . . Nor, assuming that petitioners did have functions for which absolute immunity would be warranted, could we now conclude that the acts charged in this lawsuit--if taken at all-- would lie within the protected area.
The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative. In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees....
It is this recognition that has required the denial of absolute immunity to most public officers. At the same time, however, it cannot be disputed seriously that claims frequently run against the innocent as well as the guilty--at a cost not only to the defendant officials, but to the society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties."
We conclude today …that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known....
By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official's acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken "with independence and without fear of consequences." . . .
********
Please be prepared to provide the class with a brief summary of the case and the majority opinion, and to address the following questions:
Case 4
QUALIFIED IMMUNITY WHEN GOVERNMENT PRIVATIZES
DARYLL RICHARDSON AND JOHN WALKER, PETITIONERS v. RONNIE LEE MCKNIGHT
No. 96-318
Decided June 23, 1997
The United States Supreme Court has extended, to state prison officials, a qualified immunity from suit. . In the case at hand, a prisoner at a Tennessee correctional center that was managed by a large, multistate private prison management firm (1) brought a Federal District Court suit against defendants including two guards who were employees of the firm, and (2) claimed that the guards had injured him, in violation of his federal constitutional rights, by allegedly placing extremely tight physical restraints upon him. The District Court denied a motion by the two guards to dismiss the action on qualified immunity grounds, as the court expressed the view that because the guards worked for a private company rather than the government, the law did not grant the guards immunity from suit.
Justice Breyer delivered the opinion of the Court:
Ronnie Lee McKnight, a prisoner at Tennessee's South Central Correctional Center (SCCC), brought this federal constitutional tort action against two prison guards, Darryl Richardson and John Walker. He says the guards injured him by placing upon him extremely tight physical restraints, thereby unlawfully "subjecting" him "to the deprivation of" a right "secured by the Constitution" of the United States.
[In previous cases, the Court has ruled that prison guards enjoy qualified immunity from suit. However, in this case], Tennessee had "privatized" the management of a number of its correctional facilities, and that consequently a private firm, not the state government, employed the guards. Earlier precedent, described the [immunity] doctrine's purposes as protecting "government's ability to perform its traditional functions" by providing immunity where "necessary to preserve" the ability of government officials "to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service." Earlier precedent described immunity as protecting the public from unwarranted timidity on the part of public officials by, for example, "encouraging the vigorous exercise of official authority,"
The guards argue that those purposes support immunity whether their employer is
private or public. Since private prison guards perform the same work as state
prison guards, they say, they must require immunity to a similar degree.
Petitioners' argument overlooks certain important differences that, from an
immunity perspective, are critical. First, the most important special government
immunity-producing concern--unwarranted timidity--is less likely present, or at
least is not special, when a private company subject to competitive market
pressures operates a prison. Competitive pressures mean not only that a firm
whose guards are too aggressive will face damages that raise costs, thereby
threatening its replacement, but also that a firm whose guards are too timid
will face threats of replacement by other firms with records that demonstrate
their ability to do both a safer and a more effective job.
These ordinary marketplace pressures are present here. The private prison guards
before us work for a large, multistate private prison management firm. The firm
is systematically organized to perform a major administrative task for profit..
It performs that task independently, with relatively less ongoing direct state
supervision. It must buy insurance sufficient to compensate victims of civil
rights torts. And, since the firm's first contract expires after three years,
its performance is disciplined, not only by state review, but also by pressure
from potentially competing firms who can try to take its place.
In other words, marketplace pressures provide the private firm with strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or "non-arduous" employee job performance.
This is not to say that government employees will always, or often, sacrifice
the otherwise effective performance of their duties. Rather, it is to say that
government employees typically act within a
different system. They work within
a system that is responsible through elected officials to voters who, when they
vote, rarely consider the performance of individual subdepartments or civil
servants specifically and in detail. And that system is often characterized by
multidepartment civil service rules that, while providing employee security, may
limit the incentives or the ability of individual departments or supervisors
flexibly to reward, or to punish, individual employees. Hence a judicial
determination that "effectiveness" concerns warrant special immunity-type
protection in respect to this latter (governmental) system does not prove its
need in respect to the former. Consequently, we can find no
special immunity-related need to
encourage vigorous performance.
Second, "privatization" helps to meet the immunity-related need "to ensure that
talented candidates" are "not deterred by the threat of damages suits from
entering public service." Because privatization law also frees the private
prison-management firm from many civil service law restraints, it permits the
private firm, unlike a government department, to offset any increased employee
liability risk with higher pay or extra benefits. In respect to this second
government-immunity-related purpose then, it is difficult to find a
special need for immunity, for the
guards' employer can operate like other private firms; it need not operate like
a typical government department.
*******
Please be prepared to provide the class with a brief summary of the case and the majority opinion, and to address the following questions:
Case 5
Summary:
The Constitution established a system whereby the national government is sovereign in some areas and states in other areas. Which is dominant in a particular situation largely turns on the Courts interpretations of two provisions. The Commerce Clause (Article I, § 8) gives Congress the authority to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Tenth Amendment states that “The powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment, therefore ensures that States maintain an ability to regulate at least some behavior. In this case involving federal gun control legislation, the Court, for the first time since the late 1930s found that a law passed by Congress exceeded its authority under the Commerce Clause.
Opinion
Chief Justice Rehnquist delivered the opinion of the Court.
In the Gun Free School Zones Act of 1990, Congress made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." . . . The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress "[t]o regulate Commerce . . . among the several States . . . ." U. S. Const., Art. I, §8, cl. 3.
On March 10, 1992, respondent, who was then a 12th grade student, arrived at Edison High School in San Antonio, Texas, carrying a concealed .38 caliber handgun and five bullets. Acting upon an anonymous tip, school authorities confronted respondent, who admitted that he was carrying the weapon. He was arrested and charged under Texas law with firearm possession on school premises. See Tex. Penal Code Ann. §46.03(a)(1) (Supp. 1994). The next day, the state charges were dismissed after federal agents charged respondent by complaint with violating the Gun Free School Zones Act of 1990. 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V).
A federal grand jury indicted respondent on one count of knowing possession of a firearm at a school zone, in violation of §922(q). Respondent moved to dismiss his federal indictment on the ground that §922(q) "is unconstitutional as it is beyond the power of Congress to legislate control over our public schools." The District Court denied the motion, concluding that §922(q) "is a constitutional exercise of Congress' well defined power to regulate activities in and affecting commerce, and the `business' of elementary, middle and high schools . . . affects interstate commerce." Respondent waived his right to a jury trial. The District Court conducted a bench trial, found him guilty of violating §922(q), and sentenced him to six months' imprisonment and two years' supervised release.
On appeal, respondent challenged his conviction based on his claim that §922(q) exceeded Congress' power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent's conviction. It held that, in light of what it characterized as insufficient congressional findings and legislative history, "section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause." 2 F. 3d 1342, 1367-1368 (1993). Because of the importance of the issue, we granted certiorari, 511 U. S. ___ (1994), and we now affirm.
We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U. S. Const., Art. I, §8. As James Madison wrote, "[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). "Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. . . ."
The Constitution delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U. S. Const., Art. I, §8, cl. 3. The Court, through Chief Justice Marshall, first defined the nature of Congress' commerce power in Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824):
"Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse."
The commerce power "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Id., at 196. The Gibbons Court, however, acknowledged that limitations on the commerce power are inherent in the very language of the Commerce Clause.
"It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.
"Comprehensive as the word `among' is, it may very properly be restricted to that commerce which concerns more States than one. . . . The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State." Id., at 194-195.
For nearly a century thereafter, the Court's Commerce Clause decisions dealt but rarely with the extent of Congress' power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce. ……
In 1887, Congress enacted the Interstate Commerce Act, 24 Stat. 379, and in 1890, Congress enacted the Sherman Antitrust Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 et seq. These laws ushered in a new era of federal regulation under the commerce power. When cases involving these laws first reached this Court, we imported from our negative Commerce Clause cases the approach that Congress could not regulate activities such as "production," "manufacturing," and "mining." …..
Simultaneously, however, the Court held that, where the interstate and intrastate aspects of commerce were so mingled together that full regulation of interstate commerce required incidental regulation of intrastate commerce, the Commerce Clause authorized such regulation. See, e.g., Houston, E. & W. T. R. Co. v. United States, 234 U.S. 342 (1914) (Shreveport Rate Cases).
In A. L. A. Schecter Poultry Corp. v. United States. . . (1935), the Court struck down regulations that fixed the hours and wages of individuals employed by an intrastate business because the activity being regulated related to interstate commerce only indirectly. In doing so, the Court characterized the distinction between direct and indirect effects of intrastate transactions upon interstate commerce as "a fundamental one, essential to the maintenance of our constitutional system." Activities that affected interstate commerce directly were within Congress' power; activities that affected interstate commerce indirectly were beyond Congress' reach. The justification for this formal distinction was rooted in the fear that otherwise "there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government."
Two years later, in the watershed case of NLRB v. Jones & Laughlin Steel Corp. (1937), the Court upheld the National Labor Relations Act against a Commerce Clause challenge, and in the process, departed from the distinction between "direct" and "indirect" effects on interstate commerce…..The Court held that intrastate activities that "have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions" are within Congress' power to regulate.
In United States v. Darby, (1941), the Court upheld the Fair Labor Standards Act, stating:
"The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce."
In Wickard v. Filburn, the Court upheld the application of amendments to the Agricultural Adjustment Act of 1938 to the production and consumption of home grown wheat. 317 U. S., at 128-129. The Wickard Court explicitly rejected earlier distinctions between direct and indirect effects on interstate commerce, stating:
"[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as `direct' or `indirect.' " The Wickard Court emphasized that although Filburn's own contribution to the demand for wheat may have been trivial by itself, that was not "enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial."
Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce.
* * * * * *
Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez v. United States, supra, at 150; see also Hodel v. Virginia Surface Mining & Reclamation Assn., supra, at 276-277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (" `[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.' " (quoting Caminetti v. United States, (1917)). 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. See, e.g., Shreveport Rate Cases, (1914); Southern R. Co. v. United States, (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 ("[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or . . . thefts from interstate shipments (18 U.S.C. § 659)"). Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e., those activities that substantially affect interstate commerce. Wirtz, supra, at 196, n. 27. ……….
We now turn to consider the power of Congress, in the light of this framework, to enact §922(q). The first two categories of authority may be quickly disposed of: §922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can §922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. Thus, if §922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce.
* * * * * *
Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. [n.3] Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.
* * * * * *
Although as part of our independent evaluation of constitutionality under the Commerce Clause we of course consider legislative findings, and indeed even congressional committee findings, regarding effect on interstate commerce, see, e.g., Preseault v. ICC, 494 U.S. 1, 17 (1990), the Government concedes that "[n]either the statute nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone."
* * * * * *
The Government's essential contention, in fine, is that we may determine here that §922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce.. The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. See United States v. Evans, 928 F. 2d 858, 862 (CA9 1991). Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. Cf. Heart of Atlanta Motel, 379 U. S., at 253. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well being. As a result, the Government argues that Congress could rationally have concluded that §922(q) substantially affects interstate commerce.
We pause to consider the implications of the Government's arguments. The Government admits, under its "costs of crime" reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. See Tr. of Oral Arg. 8-9. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. 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.
* * * * * *
Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, s o long as Congress' authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender "legal uncertainty." Post, at 17. As Chief Justice Marshall stated in McCulloch v. Maryland, 4 Wheat. 316 (1819):
* * * * * *
These are not precise formulations, and in the nature of things they cannot be. But we think they point the way to a correct decision of this case. The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce……
For the foregoing reasons the judgment of the Court of Appeals is Affirmed.
Please be prepared to provide the class with a brief summary of the case and the majority opinion, and to address the following questions: