UNITED STATES V. MORRISON: THE SUPREME COURT DECLARES 42 U.S.C. §13981 UNCONSTITUTIONAL
CRS Report for Congress
United States v. Morrison: The Supreme Court
Declares 42 U.S.C. §13981 Unconstitutional
American Law Division
In United States v. Morrison, the Supreme Court considered the constitutionality
of 42 U.S.C. §13981, which provided a federal civil cause of action to any victim of
gender-motivated violence. Analyzing §13981 according to the framework delineated in
United States v. Lopez, the Court held that gender motivated violence is not a
commercial activity and is not substantially connected to interstate commerce, rendering
the statute invalid under the Commerce Clause. The Court further determined that, since
it targeted private actors, §13981 was outside the scope of the Fourteenth Amendment.
Determining that widespread and pervasive acts of gender-motivated violence have
a deleterious effect on the national economy and interstate commerce by removing women
from the workplace, discouraging interstate travel, and reducing productivity, Congress
enacted the Violence Against Women Act (VAWA) in 1994, pursuant to its authority to
"regulate commerce...among the several States," as well as Section 5 of the Fourteenth
Amendment.1 Among the various criminal and civil provisions of the Act was 42 U.S.C.
§13981, which established a substantive right to be free from crimes of violence motivated
by gender, and created a private cause of action against anyone who commits such a crime,2
allowing an injured party to obtain damages and other compensatory relief.
In United States v. Morrison, the plaintiff brought suit under §13981 against two men
who allegedly assaulted and raped her, asserting that her right to be free from gender-3
motivated violence had been violated. Considering the statute pursuant to the strictures
of United States v. Lopez, the Supreme Court affirmed the decision of the Court of
Appeals for the Fourth Circuit, holding that the statute violated both the Commerce Clause
1 United States v. Morrison, 2000 WL 574361, *1 (U.S.). The Vote in Morrison was 5 to 4, with
Chief Justice Rehnquist writing the majority opinion. Justice Thomas issued a concurring opinion
advocating rejection of the substantial effects test. Id. at *17.
2 Id.; 42 U.S.C. §13981.
3 Morrison, 2000 WL 574361 at *1; United States v. Lopez, 514 U.S. 549 (1995).
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and Section 5 of the Fourteenth Amendment.4 The Court’s decision in Morrison settles the
conflict among the lower courts regarding the validity of the Act. More importantly,
though, the holding serves as a much needed clarification of Lopez, where the Supreme
Court determined, for the first time in sixty years, that a federal statute exceeded the scope
of congressional power under the Commerce Clause.5 In Lopez, the Supreme Court
adjusted the judiciary’s traditional approach to Commerce Clause analysis, maintaining that
while the history of Commerce Clause jurisprudence represented an expansive
interpretation of federal Commerce Clause power, the judiciary maintained the ability to
enforce limits on that power.6 Specifically at issue was whether 18 U.S.C. §922(q), a
federal statute prohibiting the possession of a firearm on school grounds, exceeded
congressional authority. Arguing that the statute was a valid exercise of Commerce Clause
power, the government contended that the possession of guns in school zones had a
serious impact on interstate commerce by leading to violent crime and a plethora of other
social ills. Addressing these arguments, Chief Justice Rehnquist discussed the judicially
enforceable limits of the Commerce Clause, delineating three categories of activity which
come within its ambit. First, Congress possesses the authority to regulate the use of the
channels of interstate commerce. Second, Congress may regulate the instrumentalities of
interstate commerce, or persons or things in interstate commerce. Finally, Congress may
also regulate activities which have a substantial relation to, and effect on, interstate7
commerce. In applying these standards to the case before it, the Supreme Court
determined that §922(q) was neither a regulation of the instrumentalities or channels of
interstate commerce, making the determination of the case hinge on the “substantial
effects” test.8 In conducting its analysis under this category, the Court identified four major
problems with the regulation at issue. First, it was determined that §922(q) was a criminal
statute which, by its terms, had no connection with commerce or any sort of economic
enterprise, and did not play an essential role in a larger regulatory scheme. Secondly, the
Supreme Court also found it significant that there was no jurisdictional element in the
statute, which would ensure that firearm possession affected interstate commerce in a
particular case. Third, the Court stated that the lack of congressional findings regarding
the impact of the offense on the national economy detracted from any substantial relation
it might have to interstate commerce. Finally, the Court held that if a regulation based on
such expansive reasoning was upheld, it would "convert congressional authority under the
Commerce Clause to a general police power of the sort retained by the States."9
Determining that the substantial effects doctrine delineated in Lopez was controlling, the
Supreme Court in Morrison first noted that §13981 could not be classified as a regulation
of economic activity. In particular, the court explained that "gender-motivated crimes are
not, in any sense of the phrase, economic activity.”10 Furthermore, the court stressed that,
while it was not adopting a categorical rule “against aggregating the effects of any
4 Morrison, 2000 WL 574361 at *1. See also, Brzonkala v. Virginia Polytechnic Institute and
State University, 169 F.3d 820 (4th Cir. 1999).
5 514 U.S. 549.
7 Id. at 558.
8 Id. at 559.
9 Id. at 561-567.
10 Morrison, 2000 WL 574361 at *8.
noneconomic activity,” its prior precedent has “upheld Commerce Clause regulation of
interstate activity only where that activity is economic in nature.”11 Turning to the second
prong of the Lopez analysis, the Court noted that, like the Gun-Free School Zones Act,
§13981 lacked a "jurisdictional element establishing that the federal cause of action is in
pursuance of Congress’ power to regulate interstate commerce.”12 Stating that the
presence of such a jurisdictional element would support the argument that a sufficient link
existed between gender-motivated violence and interstate commerce, the Court noted that
“Congress elected to cast §13981's remedy over a wider, and more purely intrastate, body
of violent crime.”13
The court then discussed the importance of congressional findings regarding the
effects of gender-motivated violence on the national economy and interstate commerce.
While noting that §13981 was indeed supported by “numerous findings,” the Court
stressed it’s declaration in Lopez that "[s]imply because Congress may conclude that a
particular activity substantially affects interstate commerce does not necessarily make it
so." Rather, according to the court, legislative findings serve to clarify the relationship
between the regulation at issue and interstate commerce, with the constitutionality of the
law ultimately hinging on the legal aspects of the substantial effects doctrine.14 Applying
this maxim, the Court held that the congressional findings made in support of §13981 were
constitutionally insufficient. In particular, the court explained that while voluminous
findings were made regarding the deleterious economic effects of violence against women,
they were weakened by the fact that they were predicated on a line of reasoning the Court
had “already rejected as unworkable if we are to maintain the Constitution’s enumeration15
of powers.” In reaching this conclusion, the Court addressed the argument that §13981
was justified in light of the fact that gender-motivated violence leads to higher medical
costs and discourages economic interaction in areas and fields seen as susceptible to such
violence, thereby inhibiting productivity and reducing the demand for interstate products.16
The Court rejected these justifications, declaring that they were identical to the reasoning
deemed unacceptable in Lopez, and, if accepted, would imbue Congress with the power
“to regulate any crime as long as the nationwide, aggregated impact of that crime has
substantial effects on employment, production, transit, or consumption.” Further, the
Court noted that if §13981 were upheld, Congress would necessarily have the power to
regulate all types of violence, given that gender-motivated violence, “as a subset of all
violent crime,” would have a smaller economic impact “than the larger class of which it is
a part.”17 Expanding upon this observation, the Court noted that to allow such regulation
of a noneconomic activity would enable federal regulation of almost any activity, including
“family law and other areas of traditional state regulation since the aggregate effect of
marriage, divorce, and childbearing on the national economy is undoubtedly significant.”
The Court also noted that Congress itself recognized this possibility, leading it to expressly
11 Id. at *9.
12 Id. at *10.
13 Id. at *10.
14 Id. at *10.
15 Id. at *10.
16 Id. at *10.
17 Id. at *10.
prohibit the application of §13981 in the family law context. The Court was unpersuaded
by this self imposed limitation, stating that “the limitation of congressional authority is not
a matter of legislative grace.”18
In light of these factors, the Court rejected the argument that “Congress may regulate
noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on
interstate commerce,” further declaring that “the Constitution requires a distinction19
between what is truly national and what is truly local.” The Court stressed that this
maxim “preserves one of the few principles that has been consistent since the clause was
adopted,” namely that “the regulation and punishment of intrastate violence that is not
directed at the instrumentalities, channels or goods involved in interstate commerce has20
always been the province of the States.”
Having rejected the validity of §13981 on Commerce Clause grounds, the Court next
addressed the question of whether the provision could be upheld pursuant to Congress’
remedial power under Section 5 of the Fourteenth Amendment. The Court began by
stating that Section 5 establishes that Congress may enforce the constitutional guarantee
that a State may not deprive any person of “‘life liberty or property, without due process
of law,’ nor deny any person ‘equal protection of the laws.’”21 In asserting Section 5
authority for enacting the civil remedy provision of the Act, Congress relied on a
“voluminous congressional record in determining “that there is pervasive bias in various
state justice systems against victims of gender-motivated violence.” The Court noted that
supporters of §13981 maintain that this bias results in insufficient investigation and
prosecution, denying victims of such violence equal protection of the laws, enabling
Congress to enact a “private civil remedy against perpetrators of gender-motivated
violence to both remedy the States’ bias and deter future instances of discrimination in the
Reaffirming prior cases establishing that state-sponsored gender discrimination is
violative of the Fourteenth Amendment, the Court stressed that the language and purpose
of the Amendment “place certain limitations on the manner in which Congress may attack
discriminatory conduct” that are “necessary to prevent the Fourteenth Amendment from
obliterating the Framers’ carefully crafted balance of power between the States and
National Government.”23 The most important of these limitations, according to the Court,
is the maxim that the Amendment extends only to state action, and cannot be used to24
target “‘merely private conduct, however discriminatory or wrongful.’” Rejecting the
argument that “recent cases have in effect overruled this longstanding limitation on
Congress’ §5 authority,” the Court again declared that governmental action under the
18 Id. at *11.
19 Id. at *11.
20 Id. at *11.
21 Id. at *12 (quoting City of Boerne v. Flores, 521 U.S. 507, 517 (1997).
22 Morrison, 2000 WL 574361 at *12.
24 Id. (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948).
Fourteenth Amendment must be corrective in nature, and designed to counteract and
redress the operation of unconstitutional state action.25
The Court also dismissed the argument that “gender-based disparate treatment by
state authorities” justified §13981. Specifically, the Court declared that the remedy was
not corrective in nature, and did not directly target the perceived state discrimination.
Clarifying this point, the Court explained that §13981 “visits no consequence whatever on
any...public official involved in investigating or prosecuting” an allegation of gender-
motivated violence, placing the provision outside the scope of any Section 5 remedy
previously upheld by the Court.26 Further, the Court found it significant that §13981
applied “uniformly throughout the Nation”, irrespective of the fact that the congressional
findings supporting the provision indicated that the “problem of discrimination against the
victims of gender-motivated crimes does not exist in all States, or even most States.”27
Because of these characteristics, the Court held that “Congress’ power under §5 does not
extend to the enactment of §13981.”28 Having rejected the validity of §13981 on both
Commerce Clause and Fourteenth Amendment grounds, the Court concluded its
disposition of the case by stating that “no civilized system of justice could fail to provide”
victims of gender-motivated violence with a remedy. The Court stressed, though, that
“under our federal system that remedy must be provided by” the states, as opposed to the29
The dissent, written by Justice Souter and joined by Justices Stevens, Ginsburg and
Breyer, disagreed with the majority's application of the substantial effects test pursuant to30
Lopez. Specifically, Justice Souter maintained that Congress has the power to regulate
any activity that, in the aggregate, has a substantial effect on interstate commerce, and
further, that the existence of such substantial effects is not a question for the courts.31
Distinguishing §13981 from Lopez, Justice Souter stated that the large body of
congressional findings regarding the effects of violence against women on interstate
commerce established an explicit predicate for governmental regulation.32 In particular, the
dissent maintained that “the sufficiency of the evidence before Congress to provide a
rational basis for the finding cannot seriously be questioned.”33 The dissent went on to
argue that regulation was justified, given that such violence would have a detrimental
25 Morrison, 2000 WL 574361 at *14.
26 Id. at *16.
27 Id. at *17.
28 Id. at *17.
29 Id. at *17.
30 Id. at *18. Justice Breyer also penned a dissent, joined by Justice Stevens, and joined in part by
Justices Souter and Ginsberg. This opinion largely echoes the points made by Justice Souter, and
questions the Court’s reasoning regarding its rejection of congressional authority for §13981 on
Fourteenth Amendment grounds. Id. at *30.
31 Id. at *18.
32 Id. at *20.
33 Id. at *20.
effect on the economy akin to the production of wheat for home consumption at issue in
Wickard v. Filburn.34
The dissent then asserted that §13981 would have been deemed valid at any point
“between Wickard in 1942 and Lopez in 1995, a period in which the law enjoyed a stable
understanding that congressional power under the Commerce Clause...extended to all
activity that...has a substantial effect on interstate commerce.”35 Justice Souter opined that
the fact that §13981 was not upheld indicated that the majority was adhering to the
substantial effects test only nominally, suggesting “that the...analysis is not a factual
enquiry, for Congress in the first instance with subsequent judicial review looking only to
the rationality of the congressional conclusion, but one of a rather different sort, dependent36
upon a uniquely judicial competence.” Building on this interpretation, Justice Souter
surmised that whereas early Commerce Clause jurisprudence maintained a “formalistic
distinction” between commercial and noncommercial activities to further laissez-faire
economics, the Court’s rejection of §13981 employed “categorical formalism” to further37
a “conception of federalism.” Criticizing this approach, the dissent argued that prior law
repudiated the notion that the “traditional state concern” theory could support a limit on
the Congress’ Commerce Clause power. The dissent also argued that in addition to
improperly relying on “state spheres of action in commerce analysis,” the Court mistakenly
rejected the precept that “politics, not judicial review, should mediate between state and
national interests.”38 In support of this point, Justice Souter maintained that the Court
erred in not giving weight to the fact that a majority of states expressly supported the civil
remedy, thus forcing them “to enjoy the new federalism whether they want it or not.”39
The dissent also asserted that the Court’s decision blurred the substantial effects test to
such a degree that ensuing cases would have to be reviewed ad hoc.40
In closing, the dissent stated that the Court was ignoring the “facts of integrated
national commerce and a political relationship between States and Nation much affected
by their respective treasuries and constitutional modifications adopted by the people. The
federalism of some earlier time is no more adequate to account for those facts today than
the theory of laissez-faire was able to govern the national economy 70 years ago.”41
34 Id. at *21.
35 Id. at *21.
36 Id. at *22.
37 Id. at *24-25.
38 Id. at *26.
39 Id. at *29.
40 Id. at *30.
41 Id. at *30.