The Impact of United States v. Lopez on Federal Criminal Jurisdiction in the Lower Federal Courts

Steven B. Dow, Michigan State University

When it invalidated the federal Gun-Free School Zones Act in the 1995 case of United States v. Lopez, the United States Supreme Court for the first time in sixty years found an act of Congress to be beyond the interstate commerce power. At that time some commentators raised a concern that the Court may be undertaking a new and much more restrictive interpretation of the commerce power, one that could significantly restrict federal criminal jurisdiction based on the commerce power. In the years since Lopez there have been hundreds of federal criminal cases in which defendants argue that the statutes under which they are being prosecuted (e.g. Felon in Possession) are, like the statute in Lopez, insufficiently connected to interstate commerce. This paper will assess the impact of United States v. Lopez on federal criminal law, looking at how the lower federal courts are responding to these ALopez@ challenges. The paper will show that up to this point the lower federal courts generally are adhering to an expansive interpretation of the commerce power and rejecting these challenges. The paper will conclude with some remarks about this development and the future of federal criminal jurisdiction.

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Updated 05/20/2006