Basically Law

Read the decision here.

Index.  Does Congress have the power to pass a law under the Commerce Clause that provides a private federal civil remedy for the victims of gender-based violence?**

Background.  A female student at Virginia Tech claimed that she was raped by two football players from the school.  The student filed a complaint with the university, and after a university hearing one student was exonerated and another was found guilty and suspended for two semesters.  The punished student challenged his suspension and after two hearings, it was dropped.   When the female student learned that her alleged assailant would be returning to the university, she dropped out. 

The female victim then brought a suit against the two men and the university in federal court under a section of the Violence Against Women's Act ("VAWA") that allows for:

A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate

Basically, the law creates a federal civil remedy (a tort) for victims of gender-based violence against their assailant. 

Defendants claimed that the law creating the civil remedy is unconstitutional since it is outside the scope of the enumerated powers of Congress.  The U.S. claimed that the law is constitutional under the Commerce Clause since gender based violence has a substantial impact on interstate commerce.  Congress found that gender based violence prevents women from traveling across state lines, or seeking employment across state lines.  The District Court agreed the law was unconstitutional but that was overturn by a divided panel in the Court of Appeals.  The Supreme Court granted cert and agreed with the District Court that the law was beyond the powers of the federal government and, thus, unconstitutional.

Court's Analysis.  The Supreme Court recognized that while Congress's powers under the Commerce Clause has expanded since the Depression, it is not absolute.  Any time Congress invokes its powers under the Commerce Clause to pass legislation it still must respect the division between federal and state powers.  The courts have recognized three situations where Congress has authority to pass legislation under the Commerce Clause:

1. Regulation the use of the channels of interstate commerce,
2. Regulate and protect the instrumentalities of interstate commerce, and
3. Regulate activities that have a substantial relation to interstate commerce.

All agreed that the law was passed because Congress claimed it had a substantial relation to interstate activity.  The Court noted that this law did not regulate economic activity and that if such a tenuous link to interstate commerce makes a law constitutional then it completely breaks down the wall between federal and state powers.  Congress could begin regulating murder and family law.  That cannot be permissible under the Commerce Clause.  The Court rejected "the argument that Congress may regulate non-economic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local."

My Analysis.  Congress's powers under the Commerce Clause need to be limited to the regulation of economic activity.  Even though the decision in Morrison limited Congress's powers to regulate under the Commerce Clause, I do not think it went far enough.  I don't say it often, but I do believe Justice Thomas had it right in his concurrence where he noted the courts need to return to the original meaning of the Commerce Clause.  I believe in an expansive view of Congress's powers to regulate interstate commerce but, to do so, it can only regulate economic activity.  Gender-based violence is not economic activity.  Therefore, Congress cannot regulate it under the Commerce Clause.

** The Court also examined whether the provision was constitutional under Section 5 of the 14th Amendment which gives Congress the power to pass laws necessary to enforce the 14th Amendment, including the Equal Protection Clause.  Since this cases involved private parties and Section 5 of the 14th Amendment requires Congress to target state action, the remedy was not a constitutional use of Congress's power.  However, the more interesting aspect of the argument is the Commerce Clause argument and that is the focus here.