CRS Report for Congress
Commerce Clause Issues in Brzonkala v. Virginia
Polytechnic Institute and State University
T.J. Halstead
Legislative Attorney
American Law Division
In Brzonkala v. Virginia Polytechnic Institute and State University, an en banc
Court of Appeals for the Fourth Circuit considered the constitutionality of 42 U.S.C.
§13981, which creates a federal cause of action against any person who commits a crime
of violence motivated by gender animus. Analyzing §13981 according to the framework
delineated in Lopez v. United States, the Fourth Circuit determined 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.
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 to1
"regulate commerce...among the several States." Among the various criminal and civil
provisions of the Act is 42 U.S.C. §13981, which creates a substantive right to be free
from crimes of violence motivated by gender, and creates a private cause of action against
anyone who commits such a crime, allowing an injured party to obtain damages and other2
compensatory relief.
In Brzonkala v. Virginia Polytechnic Institute and State University, the plaintiff
brought suit under §13981 against two men who allegedly assaulted and raped her,3
asserting that her right to be free from gender-motivated violence had been violated.
Considering the statute pursuant to the strictures of United States v. Lopez, the Court of
Appeals for the Fourth Circuit determined that the statute could not stand pursuant to the4

Commerce Clause. The Brzonkala decision marks the first time that an appellate court has
U.S. Const. art. I, §8, cl. 3.1

42 U.S.C. §13981.2

169 F.3d 820 (4 Cir. 1999).3th

Id. at 826-827. The Fourth Circuit also held that the statute exceeded congressional power under4
Congressional Research Service ˜ The Library of Congress

considered VAWA's civil rights remedy, as well as the only instance where the provision5
has been deemed unconstitutional. The decision is particularly significant in light of the
Fourth Circuit's reliance on Lopez, where the Supreme Court determined, for the first time
in sixty years, that a federal statute exceeded congressional power under the Commerce6
Clause. 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,7
the judiciary maintained the ability to enforce limits on that power. 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 relation8
to, and effect on, interstate 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 interstate9
commerce, making the determination of the case hinge on the “substantial effects” test.
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 Commerce10
Clause to a general police power of the sort retained by the States." Determining that
the substantial effects doctrine delineated in Lopez was controlling, the Fourth Circuit in
Brzonkala first noted that §13981 could not be classified as a regulation of economic
activity. In particular, the court explained that the "statute does not regulate the
manufacture, transport, or sale of goods, the provision of services, or any other sort of

the Enforcement Clause of the Fourteenth Amendment. Id.
See, Doe v. Doe, 929 F.Supp. 608 (D.Conn. 1996); Seaton v. Seaton, 971 F.Supp. 11885
(E.D.Tenn. 1997); Ericson v. Syracuse University, 1999 WL 212684 (S.D.N.Y. 1999).
United States v. Lopez, 514 U.S. 549 (1995).6
Id. at 558.8
Id. at 559.9
Id. at 561-567.10

commercial transaction." Furthermore, the court stated that unlike other forms of violence,
such as robbery, gender-motivated violence "is not even economic in any meaningful
sense." The court also determined that §13981 lacks a sufficient "connection with any11
particular, identifiable economic enterprise or transaction." To illustrate this point, the
court compared the provision to the Freedom of Access to Clinic Entrances Act of 1994,
which regulates protests of abortion clinics. Specifically, the court noted that control over
the dynamics of abortion protests was directly linked with the operation of clinics, a
tangible economic activity. According to the court, §13981 did not possess a similar
connection with any economic activity. The court went on to stress that the statute
possessed an even more tenuous connection to interstate commerce than did 18 U.S.C.
§922(q), in that while the proper functioning of schools might be seen as closely related
to commerce, "violence arising from gender animus lacks even a meaningful connection
with any specific activity that might arguably be considered economic or commercial in the12
loosest sense." The court also determined that the statute could not be supported as part
of a larger regulatory scheme which would suffer absent regulation of intrastate gender
violence. Specifically, the Fourth Circuit held that "the federal patchwork of anti-
discrimination laws" could not be construed as implementing a cohesive regulatory scheme
geared towards commercial or economic activity. Clarifying this position, the court13
explained that §13981 could not be logically associated with other anti-discrimination
statutes due to the fact that it addressed gender-motivated violence in all contexts,
providing a cause of action against an alleged violent actor. The court determined that this
dynamic conflicted with Title VII of the Civil Rights Act, which provides only for a
remedy against gender discrimination in the work place, and targets the employer as
opposed to specific offenders. This partial and occasional overlap belied any cohesive
scheme, according to the court, and supported a conclusion that each statute was "written14
without regard for the concerns that animate the other."
Finally, the court further held that even if §13981 could be construed as part of a
larger regulatory scheme, it would nonetheless be invalid under Lopez, as the statute itself
had no relation to economic activity. The court explained that Lopez did not "authorize the
regulation of activity lacking any meaningful economic nexus" simply because it is part of
a regulatory scheme that also regulates economic activity in certain respects. Illustrating
this maxim, the Fourth Circuit pointed to the Lopez Court's affirmance of Wickard v.
Filburn, where the Supreme Court ruled that the federal government could regulate the
production of wheat for private, intrastate use, as such local activities could, in the
aggregate, substantially affect interstate commerce. In particular, the Fourth Circuit
explained that while the regulation at issue was quite broad, it nonetheless possessed a
significant connection to economic activity.15
In contrast, according to the court, §13981 did not possess any connection with an
economic enterprise or activity, and like §922(q), was a statute unrelated to commerce or
any form of economic enterprise. The court further declared that the statute was even
more tenuously related to commercial activity than the law at issue in Lopez, stressing the

Id. at 834.11
Id. at 834.12
Id. at 834.13
Id. at 835.14
Id. at 835.15

Supreme Court's statement that to determine otherwise "would divest the words
'commerce' and 'economic' of any real meaning." As such, the Fourth Circuit refused to
uphold §13981 on the basis that it possessed an insufficient economic nexus under Lopez.
Turning to the second prong of the Lopez analysis, the Fourth Circuit noted that
§13981 lacked an "express jurisdictional element" which would ensure its application to
offenses with a tangible connection to, or effect on, interstate commerce. In particular, the
court explained that whereas the criminal provisions of the Violence Against Women Act
hinged upon the crossing of state lines or some other explicit connection to interstate
commerce, §13981 included no such standard. Furthermore, the court stressed that the
language of the statute could not "possibly be construed to constitute such a jurisdictional16
The Fourth Circuit next 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. Concluding that17
the essence of the argument was identical to that deemed unacceptable in Lopez, the court
refused to accept such reasoning, noting that such a basis for regulation would imbue
Congress with the power to regulate almost any activity, no matter how trivially related
to commerce. To clarify this position, the Fourth Circuit explained that the economic
impact of gender-motivated violence is only characteristic of the effect of any serious
problem on interstate commerce. Specifically, Judge Luttig stated that the effects of
gender violence were qualitatively identical to "violence in schools, violent crime generally,
and many other less visible though still significant problems," all of which result in the loss
of productivity and an ultimate, although indirect, negative impact on the national18
economy and, presumably, interstate commerce.
Acknowledging that cases such as Wickard were premised on "sweeping and
permissive reasoning," relying upon an analysis of "the aggregate effects of entire classes
of activities and indulging in attenuated chains of inferences" to establish a substantial
effect on interstate commerce, the Fourth Circuit stressed that Lopez precluded such an19
approach in the present case, as §13981 targeted noneconomic activity. Clarifying this
distinction, the Fourth Circuit explained that Lopez established that, while general
regulatory statutes with a substantial relation to commerce could employ such aggregate
reasoning, such an approach could not be used to uphold statutes with no relation to
commerce or any sort of economic enterprise. According to the Fourth Circuit, such a
piling of inferences, based upon the fact that gender-motivated violence "in the aggregate,
has an attenuated, though real, effect on the economy" would remove all limits on federal20
authority, giving Congress an unconstitutional general police power.
Expanding upon this observation, the Fourth Circuit noted that to allow such
regulation of a noneconomic activity would enable federal regulation of any significant

Id. at 836.16
Id. at 836.17
Id. at 839. 18
Id. at 839.19
Id. at 840.20

activity, and would intrude "upon areas of the law 'to which States lay claim by right of21
history and experience.'" The effect of this intrusion, according to the court, would be
to provide a civil remedy for actions already proscribed by state criminal and tort law,
upsetting the balance between state and federal criminal authority and ultimately22
effectuating a reallocation of state and federal judicial and law enforcement resources.
As further evidence of §13981's intrusion into traditional state law, the Fourth Circuit
noted that under VAWA, a civil remedy could lie regardless of whether the act in question
resulted in the filing of criminal charges, prosecution, or conviction, establishing a federal
remedy for acts a state might choose to leave unpunished for reasons of state criminal law23
policy, prosecutorial discretion, or state tort-law policy.
The court also held the act usurped traditional state functions by disregarding the
limits of state criminal and civil law, "purportedly in response to the State's failure to
enforce their criminal and tort laws against gender-motivated violent criminals."
Specifically, the Fourth Circuit found it significant that in addressing this asserted failure
of state justice systems, the act targeted violent actors, as opposed to providing a remedy
against deficient states and their officers, as would a valid civil rights statute. The effect
of this dynamic, according to the court, was to encroach "upon the States' ability to
determine when and how violent crimes will be punished," as well as to blur "the boundary
between federal and state responsibility for the deterrence and punishment of such24
crime." As such, the Fourth Circuit explained that citizens of various states would not
be able to ascertain readily whether a state or the federal government should be held25
accountable for failing to properly address a claim of gender-motivated violence.
The Fourth Circuit then explained further that §13981 was targeted primarily to
domestic violence, which has been traditionally regulated by the states, without26
congressional intervention. Focusing on the strong state tradition of regulating such
offenses, the court again declared that if the regulation was upheld, §13981 would
minimize the importance of state policies related to gender violence and result in an27
"essentially limitless" congressional power. 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 the legislative expertise of Congress
is entitled to a degree of deference, the Fourth Circuit stressed the Supreme Court'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. 28

Id. at 840, quoting Lopez, 514 U.S. at 583 (Kennedy, J., concurring).21
Id. at 840-841.22
Id. at 841.23
Id. at 841.24
Id. at 842. 25
Id. at 842.26
Id. at 843.27
Id. at 849.28

Applying this maxim, the Fourth Circuit held that the congressional findings made in
support of §13981 were constitutionally insufficient. Specifically, the court explained that
while voluminous findings were made regarding the deleterious economic effects of
violence against women, there was no information differentiating the impact of gender-
motivated violence from general acts of violence against women. Indeed, the Fourth
Circuit determined that the only congressional findings addressing the effects of gender-
motivated violence in particular consisted of two conclusory statements by the House and
Senate asserting generally that gender-motivated violence substantially affects interstate
commerce. Considering the nature of such statements, the Fourth Circuit explained that,
even accepting their accuracy as a factual matter, the congressional findings could not be
accepted as a sufficient legal conclusion that gender-motivated violence substantially29
affects insterstate commerce.
The dissent, written by Judge Motz and joined by three other judges on the court,
disagreed with the majority's application of Lopez. Citing factors deemed sufficient by
other courts to uphold §13981 on Commerce Clause grounds, Judge Motz maintained that
the majority's refusal to defer to the congressional findings was improper. Specifically,30
the dissent maintained that a proper interpretation of Lopez would require a court defer31
to congressional findings which possessed a rational basis. Upon analyzing the legislative
findings made by Congress, the dissent maintained that a sufficient showing of "the
substantial effect that gender-based violence has on interstate commerce and the national
economy" had been made, irrespective of the majority's holding that the findings illustrated32
only the effect of general violence on women and the economy. The dissent further
argued that the regulation was justified, as such violence could rationally be considered as33
detrimental to the economy as the activity at question in Wickard v. Filburn. The dissent
went on to fault the majority's determination that a valid Commerce Clause regulation
must regulate economic activity, possess a jurisdictional element, or bear a meaningful
connection with an economic activity. Specifically, the dissent maintained that the effects
identified in the legislative findings supported Commerce Clause based regulation under
Lopez, arguing that the mere fact that an effect becomes general does not render it34
insufficiently substantial.
Compared with the arguments of the dissent and the contrary holdings of other courts
addressing the issue, the majority's exhaustive opinion in Brzonkala belies a fundamental
difference of opinion regarding the scope of congressional power under the Commerce
Clause. Given such differing interpretations regarding the validity of §13981, it seems
inevitable that the Supreme Court will address the issue, thereby clarifying the effect of its
decision in Lopez.

Id. at 850.29
See note 5, supra.30
Id. at 912-913.31
Id. at 913.32
Id. at 916.33
Id. at 917, 919-920.34