(CN) – Justices Clarence Thomas and Antonin Scalia criticized their colleagues on the Supreme Court in a sharp dissent on Monday for failing to check Congress’ commerce power. The court’s majority ruled to deny an appeal over a federal law that bars criminals from owning bulletproof vests.
Cedrick Alderman pleaded guilty and was sentenced to 18 months in prison for the crime. On appeal, Alderman argued that the law exceeds Congress’ authority under the Commerce Clause. The 9th Circuit found in a split-panel decision that the law was constitutional, and the full court was split in a subsequent ruling that declined to rehear the case.
Appellate decisions like that of the 9th Circuit have contributed to the “nullification” of hard-fought Commerce Clause jurisprudence, Thomas wrote in a dissent joined by Scalia.
“That logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the states,” Thomas wrote.
The justice explained that the court has worked “to more sharply define and enforce limits on Congress’ enumerated ‘power .. to regulate commerce.'”
Its reading was defined in the 1995 decision United States v. Lopez, which identified three commerce activities Congress can regulate: the use of interstate commerce channels, the instrumentalities of interstate commerce activities that substantially affect interstate commerce. The decision concludes that congressional authority must be limited to prevent the creation of a general police power.
“It is difficult to imagine a better case for certiorari,” Thomas wrote. “This court has a duty to defend the integrity of its precedents, and we should grant certiorari to affirm that Lopez provides the proper framework for a Commerce Clause analysis of this type.”
Under the 9th Circuit’s theory, Congress can regulate or ban possession of any item that has ever been offered for sale or crossed state lines.
“The government actually conceded at oral argument in the 9th Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce,” Thomas wrote. “Such an expansion of federal authority would trespass on traditional state police powers.”
The dissent continues: “Fifteen years ago in Lopez, we took a significant step toward reaffirming this Court’s commitment to proper constitutional limits on Congress’ commerce power. If the Lopez framework is to have any ongoing vitality, it is up to this Court to prevent it from being undermined by a 1977 precedent that does not squarely address the constitutional issue.”