Federalism: Selected Opinions of Judge Samuel Alito

CRS Report for Congress
Federalism: Selected Opinions
of Judge Samuel Alito
December 30, 2005
Kenneth R. Thomas,
Todd B. Tatelman
Legislative Attorneys
American Law Division

Congressional Research Service ˜ The Library of Congress

Federalism: Selected Opinions of Judge Samuel Alito
Summary
During his 15 years as a federal appellate judge on the Third Circuit, Judge
Samuel Alito has written several opinions related to federalism. Two of these cases
appear to be of particular significance. In Chittister v. Department of Community and
Economic Development, Judge Alito authored a unanimous opinion which held that
an individual could not sue a state under the Family Medical Leave Act (FMLA).
This opinion addressed an issue which has been controversial in recent years — the
parameters of the 11^th Amendment and Section 5 of the 14^th Amendment. The
decision held that a provision of the Family Medical Leave Act which mandates the
provision of sick leave for employees with serious health conditions could not be
enforced by employees against states agencies or instrumentalities.
In United States v. Rybar, Judge Alito authored a dissent to a decision that
upheld a law providing that “it shall be unlawful for any person to transfer or possess
a machine gun” as within the authority of the Congress under the Commerce Clause.
Judge Alito, noting that the statute lacked both a requirement for a specific
connection to interstate commerce and findings that the purely intrastate possession
of machine guns had a substantial effect on interstate commerce, would have struck
the law down.
In general, it appears that Judge Alito’s opinion in the Chittister case was
consistent with Supreme Court precedent at the time. Although Judge Alito has been
criticized because his opinion did not anticipate the result in the subsequent case of
Nevada Department of Human Resources v. Hibbs, the Hibbs case actually addressed
a separate provision of the FMLA. The Chittister case is arguably distinguishable
from the Hibbs case, a conclusion which has been reached by other federal circuits.
Judge Alito’s dissent in the Rybar case, however, seems to have anticipated a
more expansive application of the Supreme Court decisions in Lopez and Morrison
than was being utilized by most other circuits at the time. Further, his reasoning in
Rybar may have been repudiated by the Supreme Court in Gonzales v. Raich.
Consequently, it would appear that Judge Alito’s dissent was an argument for a more
limited interpretation of the Commerce Clause than is consistent with current case
law.

Contents
Sovereign Immunity and the 14^th Amendment...........................2
Background ..................................................2
Chittister v. Dept. of Community and Economic Development...........5
The Commerce Clause..............................................9
Background ..................................................9
United States v. Rybar ..........................................9
Gonzales v. Raich.............................................12
Conclusion ......................................................15

Federalism: Selected Opinions
of Judge Samuel Alito
During his 15 years as a federal appellate judge on the Third Circuit, Judge
Samuel Alito has written several opinions related to federalism.¹ Two these cases
appear to be of particular significance. In Chittister v. Department of Community and
Economic Development,² Judge Alito authored a unanimous opinion which held that
an individual could not sue a state under the Family Medical Leave Act (FMLA).³
This opinion addressed an issue which has been controversial in recent years — the
parameters of the 11^th Amendment and section 5 of the 14^th Amendment. The
decision held that a provision of the Family Medical Leave Act which mandates the
provision of sick leave for employees with serious health conditions could not be
enforced by employees against state employers.
In United States v. Rybar,⁴ Judge Alito authored a dissent which considered
whether a law providing that “it shall be unlawful for any person to transfer or
possess a machine gun” was outside of the authority of the Congress under the
Commerce Clause. Judge Alito, noting that the statute lacked both a requirement for
a specific connection to interstate commerce and findings that the purely intrastate
possession of machine guns had a substantial effect on interstate commerce, would
have struck the law down.

¹ See Chittister v. Department of Community and Economic Development, 226 F.3d 243 (3^rd
Cir. 2003)(holding that a state is immune from suit under the Family Medical Leave Act
regarding personal sick leave); Hechinger Investment Company of Delaware v. Hechinger^rd^th
Liquidation Trust, 335 F.3d 223 (3 Cir. 2003)(holding that 11 Amendment issues,
although jurisdictional, did not have to be decided before a court could reach the merits of
a case); Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d 807 (3d Cir. 1991) (holding
that the Pennsylvania Transportation Authority is not an alter ego of the state, and thus^th^rd
cannot claim 11 Amendment immunity); United States v. Rybar, 226 F.3d 223 (3 Cir.
2003)(Alito, J., dissenting)(opinion arguing that criminal prohibition on possession of
machine guns was outside of the Congress’s commerce clause powers); United States v.^rd
Wright, 363 F.3rd 237 (3 Cir. 2004)(defendant need not be aware of connection of activity
to interstate commerce to be charged with crime).
² 226 F.3d 223 (3^rd Cir. 2003).
³ 29 U.S.C. §§ 2601-54.
⁴ 103 F.3d 273, 274 (3^rd Cir. 1996).

Sovereign Immunity and the 14^th Amendment
Background
When an individual attempts to sue a state under federal law, an argument can
be raised by the state that it is immune to such a suit under the doctrine of sovereign
immunity. The starting point for such a discussion is usually the Eleventh
Amendment, which provides that “The Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State.” The actual text of the
Amendment appears to be limited to preventing citizens from bringing diversity cases
against states in federal courts. However, the Supreme Court has expanded the
concept of state sovereign immunity to reach much further than the text of the
Amendment.
The Eleventh Amendment was passed as a response to the case of Chisholm v.⁵
Georgia, which allowed a private citizen of one state to sue another state in federal
court without that state’s consent.⁶ Almost immediately after the decision in
Chisholm, resolutions were introduced in Congress to overturn it, the end result being
the Eleventh Amendment.⁷ The Amendment assured that a citizen of one state could
not sue another state in federal court — in other words, a citizen could not sue under
federal diversity jurisdiction without a state’s permission.
In Hans v. Louisiana, the Court provided for an even more expansive
interpretation of the Eleventh Amendment⁸ which banned suits by citizens against⁹
states regardless of whether or not the citizen was a resident of another state. Later

⁵ 2 Dall. 419 (1793).
⁶ Immediately after the adoption of the Constitution, a number of citizens filed cases in
federal court against states. One of these, Chisholm, was a diversity suit filed by two
citizens of South Carolina against the State of Georgia to recover a Revolutionary War debt.
In Chisholm, the Supreme Court noted that Article III of the Constitution specifically grants
the federal courts diversity jurisdiction over suits “between a State and citizens of another
State.” U.S. Const., Art. III, §2. Thus, the Court held that this grant of jurisdiction
authorized the private citizen of one state to sue another state in federal court without that
state’s consent.
⁷ The states were upset such a suit could be brought in federal court, protesting that the
drafters of the Constitution had promised the states they would not be sued by their creditors
in federal courts. Alden v. Maine, 527 U.S. 706, 720 (1999).
⁸ After the Eleventh Amendment was passed, a number of cases were filed against states by
their own citizens, with jurisdiction based on federal question jurisdiction rather than
diversity. Under this reasoning, if a citizen of a state sued his or her own state in federal
court, the prohibition of the Eleventh Amendment would not apply. Consequently, for a
number of years after the passage of the Eleventh Amendment, this type of case was
entertained by the federal courts. However, this line of cases was ended by the case of Hans
v. Louisiana, 134 U.S. 1 (1890).
⁹ Ultimately, the issue before the Court in Hans v. Louisiana and in subsequent cases was
(continued...)

cases established that Congress could not generally abrogate this immunity under its
Article I legislative powers.¹⁰ The Supreme Court has held, however, that Congress
can abrogate state sovereignty under the §5 of the Fourteenth Amendment, which
authorized Congress to pass laws to enforce the protections of that Amendment.¹¹
While the logic behind this distinction is unclear,¹² it means that in many cases
litigants suing states will have to find a Fourteenth Amendment basis for federal
legislation in order to defeat an Eleventh Amendment defense.
Recent Supreme Court cases, however, make it more difficult for a court to find
that the Fourteenth Amendment is the constitutional basis for legislation. In the case
of Flores v. City of Boerne,¹³ the Court struck down the Religious Freedom
Restoration Act (RFRA) as beyond the authority of Congress under §5 of the
Fourteenth Amendment. The case arose when the City of Boerne denied a church a
building permit to expand, because the church was in a designated historical district.

⁹ (...continued)
not the Eleventh Amendment, but the issue of state sovereign immunity. State sovereign
immunity means that a state must consent to be sued in its own court system. This concept
is based on early English law, which provided that the Crown could not be sued in English
courts without its consent. The doctrine of sovereign immunity was in effect in the states
which were in existence at the time of the drafting of the Constitution. Further, various
writings by the founding fathers seemed to support the concept. See Alden v. Maine, 527
U.S. 706, 716-17 (1999). Thus, the issue before the Court in Hans was whether the grant
of jurisdiction to federal courts under Article III of the Constitution had abrogated state
sovereign immunity. The Hans Court found that Article III did not have this effect.
¹⁰ See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). In Seminole Tribe,
the Court evaluated the Indian Gaming Regulatory Act of 1988, which provided Indian
tribes with an opportunity to establish gambling operations. The Court determined that the
law was passed as an exercise of the Article I power over Indian commerce, U.S. Const.,
Art. I, cl. 3. Noting that the Eleventh Amendment was ratified after the passage of the
Constitution and Article I, the Court held that the Eleventh Amendment limited Congress’s
authority to waive a state’s sovereign immunity under that Article.
¹¹ Fitzpatrick v. Bitzer, 427 U.S. 445, 452-53 (1976).
¹² One apparent argument is that the Fourteenth Amendment was passed after the Eleventh
Amendment and thus, unlike Article I, it can be seen as an alteration of the restrictions of
the Eleventh Amendment. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65-66 (1996).
However, as noted above, state sovereign immunity preceded and predated the Constitution.
Consequently, all the Articles of the Constitution could arguably be seen as altering the
restrictions of state sovereign immunity.
Another argument made by the Court in Seminole is that the Fourteenth Amendment
was designed to alter the pre-existing balance between state and federal power at the time
of its passage. This argument is more plausible, but is still difficult to differentiate between
Congress’s power under the Fourteenth Amendment and Congress’s power under the
Articles of the Constitution. Like the Fourteenth Amendment, the Articles of the
Constitution were clearly intended to alter the balance between state and federal power at
the time of the passage of the Constitution, including state sovereign immunity. This is
exemplified by the Supremacy Clause, U.S. Const., Art. VI, cl. 2, which provides that laws
passed under the Constitution would be supreme over state law.
¹³ 521 U.S. 507 (1997).

The church challenged the zoning decision under RFRA. The Supreme Court
reiterated that §5 of the Fourteenth Amendment gave the Congress the power to
enforce existing constitutional protections, but found that this did not automatically
include the power to pass any legislation to protect these rights. Instead, the Court
held that there must be a “congruence and proportionality” between the injury to be
remedied and the law adopted to that end.¹⁴
Based on the City of Boerne test, the Court has struck down a variety of laws
which were designed to deal with the issue of discrimination. For instance, in Kimel
v. Florida Board of Regents,¹⁵ the Court evaluated whether the Age Discrimination
in Employment Act of 1967 was a valid exercise of Congress’s commerce power and
§5 power, and thus could be applied against the states. The Kimel Court held,
however, that age is not a suspect class, and that the provisions of the ADEA far
surpassed the kind of protections that would be afforded such a class under the
Fourteenth Amendment.
Further, the Court found, based on City of Boerne, that an analysis of the
Congress’s ability to legislate prophylactically under section §5 required an
examination of the legislative record to determine whether the remedies provided
were proportional and congruent to the problem. A review by the Court of the
ADEA legislative record found no evidence of a pattern of state governments
unconstitutionally discriminating against employees on the basis of age.
Consequently, the Court held that a state could not be liable for damages under the
ADEA.
The application of the Americans with Disabilities Act (ADA) to states was also
considered in the case of the Board of Trustees v. Garrett,¹⁶ with similar result. In
Garrett, the Court evaluated whether two plaintiffs could bring claims for money
damages against a state university for failing to make reasonable accommodations
for their disabilities; one plaintiff was under treatment for cancer, the other for
asthma and sleep apnea. Although disability is not a suspect class and thus
discrimination is evaluated under a rational basis test, the Court had previously
shown a heightened sensitivity to arbitrary discrimination against the disabled.¹⁷
Further, Congress had made substantial findings regarding the pervasiveness of such
discrimination.

¹⁴ For many years prior to the passage of RFRA, in order for a law of general applicability
restricting the free exercise of religion to be consistent with the Freedom of Exercise Clause
of the First Amendment, it had to be justified by a compelling governmental interest.
However, in the 1990 case of Oregon v. Smith, the Court lowered this standard. The Smith
case involved members of the Native American Church who were denied unemployment
benefits when they lost their jobs for having used peyote during a religious ceremony. The
Smith case held that a neutral, generally applicable law may be applied to religious practices
even if the law is not supported by a compelling governmental interest. RFRA was an
attempt by the Congress to overturn the Smith case and to require a compelling
governmental interest when a state applied a generally applicable law to religion.
¹⁵ 528 U.S. 62 (2000).
¹⁶ 531 U.S. 356 (2001).
¹⁷ Cleburne v. Cleburne Living Center, Inc. 473 U.S. 432 (1985).

However, the Supreme Court declined to consider evidence of discrimination
by either the private sector or local government, and dismissed the examples that did
relate to the states as unlikely to rise to the level of constitutionally “irrational”
discrimination. Ultimately, the Court found that no pattern of unconstitutional state
discrimination against the disabled had been established, and that the application of
the ADA was not a proportionate response to any pattern of discrimination that might
exist.
As noted, Kimel and Garrett involved the evaluation of congressional statutes
addressing discrimination against non-suspect classes. When the class which is the
focus of legislation has a higher level of constitutional protection, however, the Court
has seemed to use a more lenient standard. In the case of Nevada Department of
Human Resources v. Hibbs,¹⁸ an employee of the Nevada Department of Human
Resources had a dispute with the Department regarding how much leave time he had
available under the FMLA. The FMLA requires, among other things, that employers
provide employees up to twelve weeks of unpaid leave to care for a close relative
with a “serious health condition.”¹⁹
In Hibbs, the Court held that Congress had the power to abrogate a state’s
Eleventh Amendment immunity under the FMLA, so that a state employee could
recover money damages. The Court found that Congress had established significant
evidence of a long and extensive history of sex discrimination with respect to the
administration of leave benefits by the states, and that history was sufficient to justify
the enactment of the legislation under §5. The standard for demonstrating the
constitutionality of a gender-based classification is more difficult to meet than the
rational-basis test, which was at issue in Kimel and Garrett, so it was easier for
Congress to show a pattern of state constitutional violations.
Chittister v. Dept. of Community and Economic Development
Judge Alito wrote the opinion for a unanimous court in the case of Chittister v.
Department of Community and Economic Development,²⁰ which also considered if
Congress had validly abrogated states’ Eleventh Amendment immunity when it
enacted the Family and Medical Leave Act of 1993.²¹ However, unlike the later-
decided Hibbs case, which considered the provision of leave to care for family
members, Chittister concerned the provision of personal sick leave “because of a
serious health condition that makes the employee unable to perform the functions of
the position of such employee.”²² In a relatively brief opinion, Judge Alito found that
Congress had not abrogated the state’s sovereign immunity for causes of action cited
by the plaintiff.

¹⁸ 538 U.S. 721 (2003).
¹⁹ 29 U.S.C. § 2612(a)(1)(C).
²⁰ 226 F.3d 223 (3d Cir. 2000).
²¹ 29 U.S.C. §§ 2601-54.
²² 29 U.S.C. § 2612(a)(1)(D).

Although the Chittister case preceded the Court’s opinion in Hibbs, some have
suggested that the opinion should have anticipated the result in that case.²³ As noted,
however, the opinion in Chittister dealt with a different provision of the Family
Medical Leave Act. The Court in Hibbs did not decide the constitutionality of the
personal sick leave provision considered in Chittister, and there are arguments to be
made that distinguish these cases.
The Court’s decision in Hibbs was based to a large extent on the congressional
finding that “denial or curtailment of women’s employment opportunities has been
traceable directly to the pervasive presumption that women are mothers first, and
workers second. This prevailing ideology about women’s roles has in turn justified
discrimination against women when they are mothers or mothers-to-be.”²⁴ Further,
because employers assumed that women were primary caretakers, they would deny
men leave for such purposes. Thus, both of these stereotypes tended to discourage
the hiring of women,²⁵ and the requirement that employers provide family care leave
would alleviate this disparity.
This reasoning, however, does not seem applicable to the case of personal sick
leave. In Chittister, the Judge Alito noted that Congress’s findings that the “the
primary responsibility for family caretaking often falls on women” would be relevant
for evaluation of the family care leave provisions. Judge Alito found, however, that
there did not appear to be similar findings concerning the existence of intentional
discrimination by employers against women in the provision of personal sick leave
practices.²⁶ Nor did the court think that such practices would be likely to have a
disparate impact on men and women. Even if such evidence existed, Judge Alito
questioned whether the FMLA would be a congruent and proportional response,
since it did not require nondiscriminatory sick leave practices, but merely created a
minimum level of leave entitlement.
Chittister seems to be consistent with the decisions of other federal courts which
considered this issue before Hibbs was decided.²⁷ For instance, in the case of

²³ See, e.g., Bruce Ackerman, et. al., Report of the Alito Project at the Yale Law School: The
Alito Opinions 6-7 (Dec. 19, 2005). This report noted that the Supreme Court had upheld
provisions of the FMLA, and quoted the Supreme Court to the effect that “the State’s record
of unconstitutional participation in, and fostering of, gender-based discrimination in the
administration of leave benefits is weighty enough to justify the enactment of prophylactic
§ 5 legislation.”
²⁴ Hibbs, 538 U.S. at 736 quoting The Parental and Medical Leave Act of 1986: Joint
Hearing before the Subcommittee on Labor-Management Relations and the Subcommittee^th
on Labor Standards of the House Committee on Education and Labor, 99 Cong., 2d sess.

100 (1986).

²⁵ Id.
²⁶ 226 F.3d at 228-29.
²⁷ The Eighth Circuit held that entire Act was unconstitutional as applied to the states,
Townsel v. Missouri, 233 F.3d 1094, 1095 (8^th Cir. 2000), while the Fifth Circuit held that
neither personal sick leave or family care sick leave provisions constitutionally abrogated^th
state sovereign immunity. Kazmier v. Widmann, 225 F.3d 519, 526-27, 529 (5 Cir. 2000).
(continued...)

Kazmier v. Widmann,²⁸ the Fifth Circuit considered whether the personal leave
provision of the FMLA could be applied against the states. The court first noted that
Congress’s express intent in enacting this provision was to prevent employers from
discriminating on the basis of temporary disability,²⁹ not gender. The court did note
suggestions in the legislative record that Congress also meant for this provision to
prevent discrimination against women on the basis of pregnancy-related disability.³⁰
The Fifth Circuit, however, rejected an argument that the personal sick leave
provision was intended to target sex discrimination.
First, the court noted that the FMLA contained a separate provision regarding
maternity leave, which was arguably more closely related to concerns about
pregnancy discrimination.³¹ Second, the court noted that the Supreme Court has held
that discrimination on the basis of pregnancy does not violate the Equal Protection
Clause,³² which would make it difficult to show that the provision was intended to
remedy a pattern and history of unconstitutional gender discrimination. Finally, the
court found that the effect of expressly mandating leave for pregnancy (among other
serious health conditions) would not make employers more likely to hire women, but
would actually make women less attractive employees.
Ultimately, the Fifth Circuit decided that the provision at issue was in fact
directed solely at discrimination based on temporary disability. Unlike discrimination
on the basis of sex, however, discrimination on the basis of disability is subject to
minimal scrutiny under the Equal Protection Clause.³³ As such, the most relevant
case decided at the time would appear to be the Kimel case, which evaluated an
attempt by Congress to remedy discrimination based on age, which is another
category with fewer constitutional protections. Relying on Kimel, the Kazmier court
found that the FMLA “prohibits substantially more state employment decisions and

²⁷ (...continued)
The First, Second, Fourth, and Eleventh Circuits reached the same conclusion considering^st
the act’s personal sick leave provisions. See Laro v. New Hampshire, 259 F.3d 1, 17 (1^th
Cir. 2001); Lizzi v. Alexander, 255 F.3d 128, 136 (4 Cir. 2001), cert. denied, 534 U.S.

1081 (2002), reh’g denied, 535 U.S. 952 (2002); Hale v. Mann, 219 F.3d 61, 69 (2d Cir.^th

2000); Garrett v. Univ. of Ala. Bd. of Trustees, 193 F.3d 1214, 1219 (11 Cir. 1999), rev’d
on other grounds, 531 U.S. 356 (2001). The Ninth Circuit, while upholding the family care
leave provisions, acknowledged that “we do not mean here to state any view with regard to
the personal disability provision of the FMLA.” Hibbs v. HDM Dep’t of Human Res., 273^th
F.3d 844, 868 (9 Cir. 2001), aff’d, 538 U.S. 721 (2003).
²⁸ 225 F.3d 519 (5^th Cir. 2000).
²⁹ See H.R. Rep. No. 99-699, Part 2, at 25 (1986) (“[A] worker who has lost a job due to a
serious health condition faces future discrimination in finding a job which has even more
devastating consequences for the worker and his or her family.”).
³⁰ 225 F.3d at 527.
³¹ Id.
³² Geduldig v. Aiello, 417 U.S. 484 (1974).
³³ States may discriminate on the basis of disability as long as the classification in question
is rationally related to a legitimate state interest. Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432 (1985).

practices than would likely be held unconstitutional under the applicable equal
protection, rational basis standard.”³⁴
Even after the decision of the Supreme Court in Hibbs, federal courts seemed
to follow reasoning similar to Chittister and Kazmier. The Sixth Circuit, in Touvell
v. Ohio Department of Mental Retardation & Developmental Disability,³⁵ relied on
the Hibbs case to reach essentially the same conclusion.³⁶ In fact, the Sixth Circuit
specifically suggested that Hibbs did not undermine the reasoning of the various
cases from other circuits that had reached this conclusion previously.
In Touvell, the Sixth Circuit made many of the same points as were made in
Kazmier and Chittister regarding the legislative record for the FMLA. As in
Kazmier, the gender discrimination of concern to the Congress related to the care of
family members, and not to personal sick leave.³⁷ The Court in Touvell found no
evidence of gender discrimination with regard to personal medical leave,³⁸ nor were
the requirements for providing such leave seen as having any remedial or
prophylactic effect on such discrimination. As with the previous cases, the Court
found little evidence that gender discrimination was even at issue in the FMLA
personal sick leave provisions.
Like Kazmier, the Sixth Circuit found that the sick leave provision was more
likely intended to affect disability discrimination, and as such, it would be more
difficult to establish a pattern and history of constitutional violation.³⁹ After
considering the legislative record regarding disability discrimination and the nature
of the legislation, the Touvell Court concluded that the FMLA personal sick leave
provisions were not congruent and proportional responses to any alleged violations.
As did Chittister and Kazmier, the Sixth Circuit concluded that the personal sick
leave provisions could not be applied against the state under the Eleventh
Amendment.

³⁴ Kazmier, 225 F.3d at 524 quoting Kimel, 528 U.S. at 85. The court noted that the
legislative record for the FMLA did not appear to reveal a pattern of unconstitutional
discrimination by the states against the temporarily disabled. Further, the court questioned
how mandated periods of leave would address unconstitutional discrimination, as it would
not be unconstitutional for a state to offer no health-related leave at all. Id., at 528.
³⁵ 422 F.3d 392 (6^th Cir. 2005).
³⁶ See also Brockman v. Wyoming Department of Family Services, 342 F.3d 1159 (10^th Cir.

2003), cert. denied, 540 U.S. 1219 (2004).

³⁷ 422 F.3d 392, 400-401 (6^th Cir. 2005)
³⁸ Id., at 403.
³⁹ It should be noted that that the Touvell court was also able to consider the application of
the case of Garrett, which had not been decided at the time of the Kazmier and Chittister
cases.

The Commerce Clause
Background
The Commerce Clause provides that “The Congress shall have Power ... To
regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes.”⁴⁰ Generally speaking, Congress’s power under the Commerce Clause
can be divided into three categories: (1) regulation of channels of commerce; (2)
regulation of instrumentalities of commerce; and (3) regulation of economic activities
which “affect” commerce.⁴¹
In the 1995 case, United States v. Lopez,⁴² the Supreme Court brought into
question the extent to which the Congress can rely on the Commerce Clause as a
basis for federal jurisdiction. Under 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.”⁴³ In Lopez, the Court held that, because the act neither regulated a commercial
activity nor contained a requirement that the possession be connected to interstate
commerce, the act exceeded the authority of Congress under the Commerce Clause.
Although the Court did not explicitly overrule any previous rulings upholding federal
statutes passed under the authority of the Commerce Clause, the decision appeared
to suggest new limits to Congress’s legislative authority. Subsequently, the lower
federal courts were left to determine the precise scope of the limits imposed by the
Court in Lopez as applied to other federal statutes.
United States v. Rybar
One statute that has received a significant amount of post-Lopez attention is 18
U.S.C. § 922(o), which states that “it shall be unlawful for any person to transfer or
possess a machine gun” unless one of two exceptions applied.⁴⁴ By 1996, when the
Third Circuit decided United States v. Rybar, several other circuits had already
determined that section 922(o) was not a violation the Commerce Clause. There was,
however, little consensus with respect to the reasoning employed.⁴⁵

⁴⁰ U.S.C^ONST. Art. I, § 8, cl. 3.
⁴¹ See United States v. Lopez, 514 U.S. 549 (1995).
⁴² Id.
⁴³ 18 U.S.C. §922(q)(1)A) (1995).
⁴⁴ Exceptions include where the transfer or possession was pursuant to the authority of the
“United States or any department or agency thereof or a State, or a department, agency, or
political subdivision thereof;” or the transfer or possession was of a machine gun lawfully
possessed before the date of the section’s enactment. See id., at § 922(o)(2)(A)-(B).
⁴⁵ See United States v. Rybar, 103 F.3d 273, 274 (3d Cir. 1996) (citing United States v.
Beuckelaere, 91 F.3d 781 (6^th Cir. 1996); United States v. Kenney, 91 F.3d 884 (7^th Cir.^th

1996); United States v. Rambo, 74 F.3d 948 (9 Cir. 1995), cert. denied, 519 U.S. 819^th

(1996); United States v. Kirk, 70 F.3d 791 (5 Cir. 1995); United States v. Wilks, 58 F.3d
(continued...)

According to the majority in Rybar, several circuits had held that section 922(o)
was a regulation of the channels of interstate commerce, therefore, bringing the
statute under the first category of commerce power.⁴⁶ Moreover, the Seventh Circuit
had held section 922(o) constitutional as “an essential part of a larger regulation of
economic activity, in which the regulatory scheme could be undercut unless the
intrastate activity were regulated.”⁴⁷ Finally, the majority noted that the Tenth Circuit
had upheld section 922(o) as a constitutional regulation of the instrumentalities of
interstate commerce, thus utilizing the second category for permissible regulation of
interstate commerce.⁴⁸
The majority opinion in Rybar adds little original analysis to this discussion and
did not attempt to resolve the reasoning dispute between the other circuits. Rather,
the majority traced the legislative history of federal firearms statutes and concluded
that by the time Congress enacted section 922(o), “it had already passed three firearm
statutes under its commerce power based on its explicit connection of the interstate
flow of firearms to the increasing serious violent crime in this country, which
Congress saw as creating a problem of ‘national concern.’”⁴⁹ Specifically, with
respect to section 922(o), the majority relied on supporting language in committee
reports as well as floor statements during consideration of the legislation.⁵⁰ With
respect to the constitutional analysis, the majority simply recounted the various
methods employed by their sister circuits and concluded that section 922(o) was
constitutional as a valid exercise of Congress’s power under the Commerce Clause.⁵¹
Judge Alito’s dissent, however, started by asking whether Lopez was a
“constitutional freak,” or whether it represented recognition that the Constitution still
provides meaningful limits on congressional power.⁵² In short, Judge Alito
concluded that the statute could be saved in one of two ways. If Congress had

⁴⁵ (...continued)
1518 (10^th Cir. 1995); United States v. Pearson, 8 F.3d 631 (8^th Cir. 1993), cert. denied, 511
U.S. 1126 (1994)).
⁴⁶ See e.g., United States v. Beuckelaere, 91 F.3d 781 (6^th Cir. 1996); United States v.
Rambo, 74 F.3d 948 (9^th Cir. 1995), cert. denied, 519 U.S. 819 (1996); United States v. Kirk,^th

70 F.3d 791 (5 Cir. 1995).

⁴⁷ See Kenney, 91 F.3d at 890 (quoting Lopez, 514 U.S. at 560).
⁴⁸ See United States v. Wilks, 58 F.3d 1518 (10^th Cir. 1995).
⁴⁹ See Rybar, 103 F.3d at 281.
⁵⁰ See id., at 281 (citing H.R. Rep. No. 495, 99^th Cong., 2d sess., 2, 7 (1986) (describing
proposed machine gun restrictions as “benefits for law enforcement” and citing “the need
for more effective protection of law enforcement officers from the proliferation of machine
guns”); see also id., at 4, (depicting machine guns as “used by racketeers and drug traffickers
for intimidation, murder and protection of drugs and the proceeds of crime”); 132 Cong.
Rec. 9,602 (1986) (statement of Sen. Kennedy) (“The only thing that has changed about the
machine gun situation since the 1968 act ... is that machine guns have become a far more
serious law enforcement problem.”).
⁵¹ See id., at 284-85.
⁵² See id., at 286 (Alito, J. dissenting).

provided the necessary jurisdictional element, thereby limiting the statute to purely
interstate activity, or if “Congress made findings that the purely intrastate possession
of machine guns has a substantial effect on interstate commerce....”⁵³ Since, in Judge
Alito’s opinion, neither of these two requirements was satisfied, the statute, as
written, should have been held unconstitutional.
Given that the majority opted not to assert a unique rationale for its conclusion,
Judge Alito’s dissent refuted all three established grounds for holding Section 922(o)
constitutional. First, he challenged the position of the Fifth, Sixth, and Ninth Circuits
that the statute is a regulation of the channels of interstate commerce. According to
Judge Alito, those circuits reasoned that under Section 922(o) there could be no
unlawful possession without an unlawful transfer, because the statute exempted
lawful possessions prior to its enactment. Further, the circuits argued that the
restriction was a necessary and proper way to assist law enforcement in tracking and
detecting illegal machine gun transfers.⁵⁴ In Judge Alito’s opinion, this reasoning
was flawed for three reasons: First, it relied on faulty facts, namely, that every
unlawful possession is the result of an unlawful transfer. In fact, as Judge Alito
posited, an unlawful possession could result from the conversion of a lawful weapon,
or from the expiration of the requisite government authority that made possession
lawful;⁵⁵ second, the rationale “seems to confuse an unlawful transfer with an
interstate transfer”⁵⁶; and finally, the circuits’ reliance on the ability of Congress to
suppress an interstate market by regulating intrastate behavior is an argument in
support of the substantial effects test, not the channels of interstate commerce.⁵⁷
Next, Judge Alito’s dissent challenged the assertion by the Sixth and Tenth
Circuits that Section 922(o) can be justified as a regulation of activities that threaten
the instrumentalities of interstate commerce. Judge Alito argued that this would be
true, if, say, Congress enacted the statute to prevent machine guns from being used
to “damage vehicles traveling interstate, to carry out robberies of goods moving in
interstate commerce, or to threaten or harm interstate travelers.”⁵⁸ Congress,
however, made no such findings, and the reasoning of the Sixth and Tenth Circuits

⁵³ Id., at 287 (Alito, J. dissenting).
⁵⁴ See id., at 289 (Alito, J. dissenting) (citing Kirk, 70 F.3d at 796; Beuckelaere, 91 F.3d at

783; Rambo, 74 F.3d at 951-52).

⁵⁵ See id., at 289 (Alito, J. dissenting) (stating that “it is not true that every possession
criminalized by 18 U.S.C. § 922(o) must be preceded by an unlawful transfer).
⁵⁶ Id.
⁵⁷ Id. (Stating that “insofar as the Fifth, Sixth, and Ninth Circuits justified 18 U.S.C §
922(o) as an attempt to suppress an interstate market by banning purely intrastate
possession, their arguments fall within the third Lopez category, i.e., Congress’s authority
to regulate an intrastate activity (intrastate possession) that has a substantial effect on
interstate commerce (the interstate market).”).
⁵⁸ Id., at 290 (Alito, J. dissenting).

was described by Judge Alito as “elusive” and, in his opinion, better suited to arguing
for constitutionality under the substantial effects prong of the Commerce Clause.⁵⁹
Finally, Judge Alito undertook an analysis of the statute under the “substantial
effects” prong of the Court’s Commerce Clause jurisprudence. Judge Alito’s theory
was that
to bring this case within the third Lopez category, it is not enough to observe that
violent criminals, racketeers, and drug traffickers occasionally use machine guns
in committing their crimes and that these crimes have interstate effects. Rather,
there must be a reasonable basis for concluding that the regulated activity (the
purely intrastate possession of machine guns) facilitates the commission of these⁶⁰
crimes to such a degree as to have a substantial effect on interstate commerce.
While not dismissing this theory as irrational, Judge Alito rejected the majority’s
reasoning for lack of empirical proof of its validity. In other words, according to
Judge Alito, there was no substantial evidence that Congress rationally concluded
that which was necessary to sustain the statute under the substantial effects prong.
For Judge Alito it appeared that neither the combing of the legislative history of
federal firearms law, nor the majority’s reliance on the committee reports and floor
statements was sufficient to establish that Congress believed that “the purely
intrastate possession of machine guns, by facilitating the commission of certain
crimes, has a substantial effect on interstate commerce.”⁶¹ In sum, Judge Alito
concluded by stating that out of respect for the principles of federalism, “we should
require at least some empirical support before we sustain a novel law that effects ‘a
significant change in the sensitive relation between federal and state criminal
jurisdiction.’”⁶²
Gonzales v. Raich
A recent opinion by the Supreme Court subsequent to Judge Alito’s dissent in
Rybar puts much of his reasoning in doubt. In Gonzales v. Raich, the United States
Supreme Court granted certiorari specifically on the question of whether the power
vested in Congress by both the “Necessary and Proper Clause,” and the “Commerce
Clause” of Article I includes the power to prohibit the local growth, possession, and

⁵⁹ Id., (Alito, J. dissenting) (citing Beuckelaere, 91 F.3d at 784 (stating that “[m]achineguns
travel in interstate commerce, posing a threat to local law enforcement, which has a
disruptive effect on interstate commerce.”); see also Wilks, 58 F.3d at 1521 (arguing that
“machine guns ... by their nature are a commodity ... transferred across state lines for profit
by business entities.”)).
⁶⁰ Id., at 292 (Alito, J. dissenting).
⁶¹ Id., at 294 (Alito, J. dissenting).
⁶² Id. (citing United States v. Bass, 404 U.S. 336, 349 (1971)). It is important to note that
in 2003 a panel of judges on the Ninth Circuit Court of Appeals concluded that section
922(o) violated the Commerce Clause primarily on the grounds that it lacked a jurisdictional
element limiting its application to only interstate cases as required by the Supreme Court’s
decisions in Lopez, and United States v. Morrison, 529 U.S. 598 (2000). See United States^th
v. Stewart, 348 F.3d 1132,1133 (9 Cir. 2003).

use of marijuana permissible as a result of California’s law.⁶³ Justice Stevens,
writing for the majority, reversed the Ninth Circuit’s decision and held that
Congress’s power to regulate commerce extends to purely local activities that are
“part of an economic class of activities that have a substantial effect on interstate
com m erce.”⁶⁴
In reaching its conclusions, the Court relied heavily on its 1942 decision in
Wickard v. Filburn, which held that the Agricultural Adjustment Act’s federal quota
system applied to bushels of wheat that were homegrown and personally consumed.
Wickard stands for the proposition that Congress can rationally combine the effects
that individual producers have on a commercial market to find substantial impacts
on interstate commerce.⁶⁵ The Court pointed to numerous similarities between the
facts presented in Raich and those in Wickard. Initially, the Court noted that because
the commodities being cultivated in both cases are fungible and that well-established
interstate markets exist, both markets are susceptible to fluctuations in supply and
demand based on production intended for home-consumption being introduced into
the national market.⁶⁶
According to the Court, just as there was no difference between the wheat Mr.
Wickard produced for personal consumption and the wheat cultivated for sale on the
open market, there is no discernable difference between personal home-grown
medicinal marijuana and marijuana grown for the express purpose of being sold in
the interstate market.⁶⁷ Thus, the Court concluded that Congress had a rational basis
for concluding that “leaving home-consumed marijuana outside federal control would
similarly affect price and market conditions.”⁶⁸

⁶³ Gonzales v. Raich, ___ U.S. ___, 125 S. Ct. 2195 (2005).
⁶⁴ Id., at 2205 (citing Perez v. United States, 402 U.S. 146, 151 (1970)). The final outcome
was 6-3 with Justice Stevens writing for himself and Justices Souter, Kennedy, Breyer, and
Ginsburg. Justice Scalia, in a separate opinion, concurred only in the Court’s judgment. See
id., at 2215. Justice O’Connor dissented and filed an opinion that both Chief Justice
Rehnquist and Justice Thomas joined in part. See id., at 2221. In addition, Justice Thomas
filed his own dissenting opinion. See id., at 2229.
⁶⁵ Wickard v. Filburn, 317 U.S. 111, 125 (1942) (holding that, economic activity, regardless
of its nature, can be regulated by Congress if the activity “asserts a substantial impact on
interstate commerce ...”).
⁶⁶ Raich, 125 S.Ct. at 2207, n. 29. The Court noted that the while the marijuana market is
an illegal or illicit market, this fact appears to be of no legal or constitutional significance
as Congress’s power arguably encompasses both lawful and unlawful interstate markets.
See id. (citing Lopez, 514 U.S. at 571, (Kennedy, J., concurring) (stating that “[i]n the
Lottery Case, 188 U.S. 321 (1903), the Court rejected the argument that Congress lacked
[the] power to prohibit the interstate movement of lottery tickets because it had power only
to regulate, not to prohibit.”).
⁶⁷ Raich, 125 S.Ct. at 2207.
⁶⁸ Id., (stating that “we had no difficulty concluding that Congress had a rational basis for
believing that, when viewed in the aggregate, leaving home-consumed wheat outside the
regulatory scheme would have a substantial influence on price and market conditions. Here
too, Congress had a rational basis for concluding that leaving home-consumed marijuana
(continued...)

Despite having concluded that under the “rational basis test” Congress had acted
within its constitutional authority when it enacted the Controlled Substances Act and
applied it to intrastate possession of marijuana, the Court nevertheless had to
distinguish Lopez and Morrison, the Court’s more recent Commerce Clause
decisions. The Court concluded that the Controlled Substances Act, unlike the
statutes in either Lopez (Gun Free School Zones Act) or Morrison (Violence Against
Women Act), regulated activity that is “quintessentially economic”; therefore, neither
Lopez or Morrison cast any doubts on the constitutionality of the statute.⁶⁹ The Court
specifically rejected the reasoning used by the Ninth Circuit, concluding that
“Congress acted rationally in determining that none of the characteristics making up
the purported class, whether viewed individually or in the aggregate, compelled an
exemption from the CSA; rather, the subdivided class of activities defined by the
Court of Appeals was an essential part of the larger regulatory scheme.”⁷⁰
In supporting its conclusions, the Court noted that, by characterizing marijuana
as a “Schedule I” narcotic, Congress was implicitly finding that it had no medicinal
value at all. In addition, the Court returned to the fact that medicinal marijuana was
a fungible good, thus making it indistinguishable from the recreational versions that
Congress had clearly intended to regulate. According to the Court, to carve out
medicinal use as a distinct class of activity, as the Ninth Circuit had done, would
effectively make “any federal regulation (including quality, prescription, or quantity
controls) of any locally cultivated and possessed controlled substance for any purpose
beyond the ‘outer limits’ of Congress’[s] Commerce Clause authority.”⁷¹ Moreover,
the Court held that California’s state law permitting the use of marijuana for
medicinal purposes cannot be the basis for placing the respondent’s class of activity
beyond the reach of the federal government, due to the Supremacy Clause, which
requires that, in the event of a conflict between state and federal law, the federal law
shall prevail.⁷²
Finally, the Court responded to the respondent’s argument that its activities are
not an “essential part of a larger regulatory scheme” because they are both isolated
and policed by the State of California and they are completely separate and distinct
from the interstate market.⁷³ The Court held that not only could Congress have
rationally rejected this argument, but also that it “seem[ed] obvious” that doctors,
patients, and caregivers will increase the supply and demand for the substance on the

⁶⁸ (...continued)
outside federal control would similarly affect price and market conditions.”) (internal
citations omitted).
⁶⁹ Id., at 2209-10
⁷⁰ Id., at 2211.
⁷¹ Id., at 2212 (emphasis in original).
⁷² Id.
⁷³ Id., at 2213.

open market.⁷⁴ In sum, the Court concluded that the case for exemption can be
distilled down to an argument that a locally grown product used domestically is
immune from federal regulation, which has already been precluded by the Court’s
decision in Wickard v. Filburn.⁷⁵
Conclusion
It is difficult to conclude from Judge Alito’s opinion in the Chittister case^th^th
whether or not the Judge has a more restrictive view of the 11 and 14 Amendment
than a majority of Justices on the Supreme Court. In general, it appears that Judge
Alito’s opinion in the Chittister case was consistent with Supreme Court precedent
at the time. Although Judge Alito has been criticized because his opinion did not
anticipate the result in the subsequent case of Nevada Department of Human
Resources v Hibbs, the Hibbs case actually addressed a separate provision of the
FMLA. The Chittister case is arguably distinguishable from the Hibbs case, a
conclusion which has been reached by other federal circuits.
Judge Alito’s dissent in the Rybar case, however, seems to have anticipated a
more expansive application of the Lopez and Morrison decisions than was adopted
by most other circuits at the time. Further, his reasoning in Rybar may have been
largely repudiated in the subsequent Supreme Court case of Gonzales v. Raich.
Consequently, it would appear that Judge Alito’s dissent was an argument for a more
limited interpretation of the Commerce Clause than is consistent with current case
law

⁷⁴ Id., 2213-14 (stating that “[i]ndeed that the California exemptions will have a significant
impact on both the supply and demand sides of the market for marijuana is not just
‘plausible’ as the principal dissent concedes, ... it is readily apparent”).
⁷⁵ Id., at 2215.