Cato Study: “Cato Launches Amicus Curiae Project”

May/​June 1999 • Policy Report

Cato Study:

Cato Launches Amicus Curiae Project

In an effort to remind the Supreme Court that government has delegated, enumerated, and limited powers, the Center for Constitutional Studies at the Cato Institute under the direction of Roger Pilon has launched a new project. The Cato Institute recently filed its first‐​ever amicus curiae (friend of the court) brief, urging the Supreme Court to find the Domestic Violence Clause of the Violence Against Women Act (VAWA) unconstitutional.

Citing the 1995 decision Lopez v. United States, the brief argued that “only commercial activities are subject to Congress’s authority under the Commerce Clause” and that the Domestic Violence Clause does not regulate commercial activity. The Court later refused to hear the case.

The amicus brief, submitted by Timothy Lynch, associate director of the center, and Jarett Decker, an attorney and Cato adjunct scholar, asked the Supreme Court to overrule the Second Circuit Court of Appeals in the case of Rita Gluzman v. United States.

“If allowed to stand, the Second Circuit’s ruling [upholding VAWA] will undermine the local control and accountability that the Framers intended for the dangerous powers of law enforcement, and will threaten individual rights by permitting federal authorities to circumvent the rights of citizens under their own states’ laws, while also eviscerating the doctrine of enumerated powers—liberty’s first line of defense against an overweening central government,” the brief argues.

The central holding in the Lopez case, the brief pointed out, was that “Congress’s power under the Commerce Clause must at least be restricted to commercial activity.” Thus, in a decision written by Chief Justice Rehnquist, the Court struck down the Gun‐​Free School Zones Act because it was “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” The Cato brief argued that Gluzman involved the same thing: a criminal statute having nothing to do with commerce.

The brief also stated that passage of the Domestic Violence Clause reflects “a trend in which Congress has been duplicating state offenses in the federal criminal code, particularly on ‘hot‐​button’ issues suitable for political posturing. That expansion of federal authority into areas the Framers never intended undermines many aspects of the constitutional structure they designed, throwing the system out of balance in ways that threaten individual rights and liberty.” The Commerce Clause “should not be stretched beyond its bounds—as the Second Circuit has stretched it—to swallow up traditional areas of state authority such as domestic abuse.”

This article originally appeared in the May/​June 1999 edition of Cato Policy Report.