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U.S. Supreme Court

Thomas, Scalia Hit Commerce Clause Retreat in Dissent; Is French Fry Ban Allowed?

Posted Jan 10, 2011 11:08 AM CDT
By Debra Cassens Weiss

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In a dissent today from a denial of certiorari, Justices Clarence Thomas and Antonin Scalia are criticizing the U.S. Supreme Court for retreating on commerce clause limits established in United States v. Lopez.

SCOTUSblog calls the opinion “an important dissent on the scope of Congress’ power under the Constitution’s commerce clause—an issue that is newly energized in the national debate over the new health reform law.”

Thomas wrote the dissent (PDF), which objected to the court’s refusal to hear a commerce clause challenge to a federal law that barred convicted felons from owning a bullet-proof vest. Scalia joined all but one footnote of Thomas' dissent. The cert denial lets stand a decision upholding the law by the San Francisco-based 9th U.S. Circuit Court of Appeals.

Thomas asserts that current commerce clause jurisprudence is so expansive that it would conceivably allow laws barring the possession of French fries and Hershey’s kisses.

“Today the court tacitly accepts the nullification of our recent commerce clause jurisprudence,” Thomas wrote. He cites Lopez, which struck down a ban on guns near schools, and United States v. Morrison, which struck down a portion of the Violence Against Women Act authorizing victims of sexual assaults to sue in federal court. Both decisions said the laws exceeded congressional authority granted under the commerce clause.

Thomas argues that these two opinions have not been applied by federal courts seeing a conflict between their holdings and that of Scarborough v. United States, an older 1977 Supreme Court decision that upheld a law barring felons from possessing guns that had traveled in interstate commerce.

“The lower courts’ reading of Scarborough, by trumping the Lopez framework, could very well remove any limit on the commerce power,” Thomas wrote. Citing a federal appeals decision in another case, he gave an example. “Congress arguably could outlaw 'the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled ... to the store from Hershey, Pennsylvania.' … The government actually conceded at oral argument in the 9th Circuit that Congress could ban possession of French fries that have been offered for sale in interstate commerce.”

The case is Alderman v. United States.

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