{BC-STATE-RIGHTS-Opinion-NYT}<
{(Texas special ATTN)}<
{SUPREME COURT CURBS INTRUSION ON STATES' RIGHTS}<
{(For use by New York Times News Service//Syndicate clients as} desired.)}<
   <
   {(EDITOR'S NOTE: Charles Levendosky, editorial page editor of} the Casper (Wyo.) Star-Tribune, has a national reputation for First Amendment commentary. His columns recently won the American Bar Association's Silver Gavel Award and The Baltimore Sun's H.L. Mencken Award.)}=
    {By CHARLES LEVENDOSKY}=
{c.1995 Casper (Wyo.) Star-Tribune}=
{(Distributed by New York Times Special Features)}=
   Late last month the U.S. Supreme Court issued a 5-to-4 decision that quietly, and almost without notice, checked the federal government's ever-widening use of the commerce clause.<
   The case, U.S. v. Alfonso Lopez, Jr., involves a violation of the ``Gun-Free School Zones Act of 1990.'' This piece of federal legislation relies upon the commerce clause to make it applicable to the states.<
   This is one of the few times the high court has limited the use of the commerce clause since President F.D. Roosevelt threatened to pack the court for blocking his New Deal legislation in 1936.<
   In 1976, Justice William Rehnquist tried to devise a doctrine to protect states' rights against federal intrusion through the commerce clause.<
   In National League of Cities v. Usery, Justice Rehnquist found four other votes to stop Congress from extending minimum wage and maximum hour provisions to cover most state employees.<
   He wrote: ``This court has never doubted that there are limits upon the power of Congress to override state sovereignty ... .''<
   The question Justice Rehnquist asked is whether Congress had interfered with state ``functions essential to separate and independent existence.''<
   It had, according to a court majority.<
   The Usery decision was overruled nine years later. And the commerce clause expanded even further.<
   The commerce clause _ Article 1, Sec. 8 of the U.S. Constitution _ affirms that ``Congress shall have the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.''<
   In the Gun-Free School case, 12th-grader Lopez had carried a concealed handgun, a .38, and bullets into his school, Edison High in San Antonio, Texas. Someone tipped school authorities, who then called police. Lopez was arrested and charged under Texas law with firearm possession on school premises.<
   On the following day, state charges were dismissed after federal agents charged him under the Gun-Free School Zones Act of 1990 which forbids ``any individual knowingly to possess a firearm at a place that the individual knows ... is a school zone.''<
   A federal grand jury indicted him. A U.S. district court found him guilty.<
   But the Fifth Circuit Court of Appeals said Congress had exceeded its power under the commerce clause and reversed Lopez's conviction.<
   The federal government then appealed to the U.S. Supreme Court. The high court, however, agreed with the appellate court.<
   What has carrying a gun into a school zone have to do with ``commerce ... among the several States''?<
   Very little, according to Chief Justice Rehnquist's opinion for the majority.<
   The U.S. Supreme Court has in the past 60 years interpreted the commerce clause as giving Congress the right to regulate (1) the use of the channels of interstate commerce, (2) persons or things in interstate commerce and (3) those activities having a substantial relation to interstate commerce.<
   Obviously, conditions (1) and (2) do not apply.<
   Furthermore, the chief justice argues, carrying guns on school grounds does not have a substantial relation to interstate commerce.<
   He writes that the act, ``is a criminal statute that by its terms has nothing to do with commerce or any sort of economic enterprise.''<
   At point, Chief Justice Rehnquist writes, ``1/8I3/8f 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. ...<
   ``For instance, if Congress can ... regulate activities that adversely affect the learning environment, then ... it also can regulate the educational process directly. ... As a result, Congress could mandate a federal curriculum for local elementary and secondary schools ...''<
   Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas joined the opinion to form a majority.<
   Chief Justice Rehnquist has waited almost 20 years for this. And he may have the votes in future commerce clause cases to rein in the overly expansive interpretation that it has been given since 1936.<
   During FDR's New Deal administration, the Supreme Court expanded the commerce clause so it could be used to regulate labor disputes; so it allowed unionization and collective bargaining; and set minimum wage laws.<
   It was the underpinning for marketing quotas for agricultural products in order to stabilize prices. It gave Congress the power to regulate wages and hours of manufacturing employees.<
   During the 1960s and racial strife, the commerce clause was used to integrate hotels and motels, restaurants, movie theaters and other public accommodations.<
   The commerce clause has had a positive social impact, but Congress seems to believe that the clause has no limits in extending federal laws into the states.<
   The high court is merely saying congressional power under the commerce clause is limited. Public schools have traditionally been the province of the states.<
   Chief Justice Rehnquist concluded his opinion by saying the Constitution's enumeration of the federal government's powers would mean nothing if the commerce clause is allowed to continue its expansion.<
   In the current tensions about federal intrusion into states' rights, the Chief Justice may hold onto a majority in similar cases. He drew a line in the sand of commerce clause jurisprudence.<
   It's about time someone did.<
   