[33] BOGGS, Circuit Judge, concurring in part and dissenting in part.

Before United States v. Lopez, 115 S.Ct. 1624 (1995), Congress's commerce powers were unlimited. "[One] wonder[s] why anyone would make the mistake of calling it the Commerce Clause instead of the 'Hey, you-can-do-whatever-you-feel-like Clause.'" Judge Alex Kozinski, Introduction to Volume Nineteen, 19 Harv. J.L. Pub. Pol'y 1, 5 (1995). In light of the text of the Commerce Clause: "Could anyone say with a straight face that the consumption of homegrown wheat [in Wickard v. Filburn, 317 U.S. 111 (1942)] is 'commerce among the several states?'" Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387, 1451 (1987). Lopez has made us consider anew the concepts we had become used to accepting without comment. If we are to be true to our function as a intermediate federal court, we must carefully examine Lopez to see what limits it has placed on the formerly limitless Commerce Clause jurisprudence of the Supreme Court.

It is clear that Lopez represents some revival of the slumbering doctrine of enumerated powers. No longer will a simple invocation of the commerce power by Congress substitute for a detailed analysis into exactly how a congressional enactment can fairly be said to "regulate Commerce . . . among the several States." I believe the court's opinion in this case does not adhere to the new limits Lopez has established on congressional power under the Commerce Clause. Instead, the court upholds the statute at issue in this case, 18 U.S.C. Section(s) 1955, by focusing on only one part of the Lopez test — the determination of whether a regulated activity is commercial in nature — and concluding that gambling is more commercial than the gun possession regulated in the statute struck down in Lopez. The court also seems overly impressed with the existence and volume of congressional findings. Applying a more detailed Lopez analysis leads me to the conclusion that Section(s) 1955 is not within Congress's commerce power, and I therefore dissent.

I do not question the court's caution, slip op. at 15-16, in approaching a challenge to a statute based on the Commerce Clause — courts should be hesitant to use their power to strike down Congress's enactments. Hodel v. Indiana, 452 U.S. 314, 323 (1981) ("It is established beyond peradventure that 'legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality . . . .'") (citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976)). Cf. Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975) (emphasizing caution before striking down a state statute as facially unconstitutional). Especially given the intricacies of Lopez, reasonable judges may differ as to how this case should be resolved, based on that new precedent. Lopez should not be treated as an aberration, however, simply because its newness makes unclear the contours of the boundaries the Supreme Court intends to impose on congressional power.

The concurring opinion of Justices Kennedy and O'Connor in Lopez only amplifies the uncertain dimensions of congressional power. These two Justices indicated they believe that Lopez does not "call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature." Lopez, 115 S.Ct. at 1637 (Kennedy, J., concurring). It must be stressed, however, that Lopez is not a plurality opinion, with a majority merely concurring in the result that the statute is unconstitutional. Both Justices Kennedy and O'Connor fully endorsed the majority opinion written by Chief Justice Rehnquist. Therefore, I read the Kennedy-O'Connor concurrence to sound a note of caution about the scope of Lopez, not a note of paralysis. It is true that the "spirit" of Lopez cannot be applied indiscriminately or expanded without further encouragement from the Supreme Court, but Lopez must currently be examined with a deliberate and close focus on the precise reasoning used therein. When this intellectual spadework is performed, however, one sees the "cogent framework," slip op. at 16, for Commerce Clause analysis that the court thinks is lacking.

Because of the uncertainty surrounding Lopez, and especially in light of the caveats contained in the Kennedy-O'Connor concurrence, the district courts and the courts of appeals face the problem of how to implement Lopez without overstepping their authority. I start with the proposition that Lopez means something and is not simply an aberration designed to strike down one statute, the Gun Free School Zones Act ("GFSZA"), with no general doctrinal basis. Indeed, a careful reading of Lopez leads me to the conclusion that a law premised on the Commerce Clause is constitutional only if it regulates:

(1) channels of interstate commerce, Lopez, 115 S.Ct. at 1629;

(2) instrumentalities of interstate commerce or persons or things in interstate commerce, whether the threat the regulation is designed to address comes from interstate or intrastate activities, ibid.; or,

(3) activities having a substantial effect on interstate commerce, id. at 1629-30, which in turn requires in inquiry into whether:

— the regulation controls a commercial activity or an activity necessary to the regulation of some commercial activity, id. at 1630-31;

— the statute includes a jurisdictional nexus requirement to ensure that each regulated instance of the activity affects interstate commerce, ibid.; and

— the rationale offered to support the constitutionality of the statute (i.e., statutory findings, legislative history, arguments of counsel, or a reviewing court's own attribution of purposes to the statute being challenged) has a logical stopping point, so that the rationale is not so broad as to regulate on a similar basis all human endeavors, especially those traditionally regulated by the states, id. at 1631-33.

Unfortunately, this analytical framework, particularly in relation to the sub-parts of the "substantial effects" test, is not laid out as clearly in Lopez as it might have been. Nevertheless, each of the points summarized above is taken directly from Lopez and this synthesis represents the most logical way to give a fair reading to Lopez.

In my view, Section(s) 1955 obviously fits into neither of the first two categories. Whether Section(s) 1955 fits into the third, "substantial effects" category, is a more difficult inquiry. Applying the three sub-parts of the Lopez substantial effects test leads me to the conclusion that the activity regulated by Section(s) 1955 does not have a substantial effect on interstate commerce and that the statute is therefore unconstitutional. While Section(s) 1955 regulates commercial activity, it has neither a jurisdictional nexus requirement nor supporting rationales with any logical stopping point. The court's opinion in this case, on the other hand, finds constitutional support for Section(s) 1955 by straying from the analytical framework set forth in Lopez. The court's arguments are generally too broad, lacking in logic, or otherwise in disharmony with Lopez. Most importantly, the court takes the findings in the statute and legislative history of Section(s) 1955 at face value, without pausing to analyze whether those findings have a logical stopping point that would prevent all human endeavors from being regulated on the same basis, as we are required to do by Lopez.

In a nutshell, this case involves federal regulation of all gambling that is forbidden by state law, if relatively minor conditions are met with respect to the number of individuals, the amount of money, and the period of time involved in the gambling operation. Section 1955 is not limited to gambling that is in interstate commerce or substantially affects interstate commerce. The statute is not necessary to a nationwide scheme to control either legal or illegal gambling. And, on the facts of this case, the connection of the defendants' gambling operation to interstate commerce is very tenuous. The gambling at issue here involves Tennesseans standing or sitting in Tennessee, manipulating buttons on a machine located in Tennessee, and receiving pay-offs in Tennessee. The only connection that the gambling operation in this case had to interstate commerce was that the video poker machines used in the operation were shipped to Tennessee from New Jersey.

In the analysis below, I first outline the facts of the case, set forth my points of agreement with the court, and address certain preliminary arguments based on pre-Lopez precedent. Second, I lay out my analysis of Lopez and apply it to Section(s) 1955. Finally, I refute the five arguments the court makes to defend the constitutionality of Section(s) 1955.

I. FACTS OF THE CASE AND PRELIMINARY ARGUMENTS

A. Facts of the Case and Elements of a Violation of Section(s) 1955

Here are what I think are the relevant facts in this case, including some not touched upon by the court: Nathan and Donald Wall ran a video poker machine gambling business exclusively in Nashville area restaurants, bars and other establishments in violation of Tennessee law. The Walls employed seven other people to help them conduct their gambling operation. Between 1989 and September 1991, the Walls' business operated for at least two consecutive days, earning gross revenues during these two days that exceeded $2,000. During this same period, the business generated approximately $2 million in gross revenues. In their business, the Walls used twenty video poker machines purchased from Lucky Distributing and Amusement Co., Inc. on June 12, 1989 for $10,622.50. The machines were shipped directly to the Walls' company from SMS Manufacturing Corp. in New Jersey at Lucky's request on August 3, 1989. On June 2, 1994, the United States Attorney charged the Walls in a criminal information with operating a gambling business in violation of Section(s) 1955. The defendants ultimately pled guilty to this charge, reserving the right to challenge by motion the validity of the criminal information. The defendants moved to dismiss the information on July 7, 1994. The district court denied the motion on August 12, 1994.

While it is unnecessary for me to consider whether Part III of the court's opinion addressing the sentencing argument advanced by Donald Wall is correct, I concur in Part II of the opinion, which concludes that the Walls satisfied the elements constituting a violation of 1955. If the Walls were correct that their conduct did not violate the statute, there would be no need to consider the constitutional argument they raise. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-01 (1979) (a federal court must engage in any reasonable construction of a statute that allows it thereby to avoid a constitutional question); United States v. Five Gambling Devices, 346 U.S. 441, 449-50 (1953) (plurality) (applying the canon of avoiding constitutional questions to a statute banning the shipment of gambling machines in interstate commerce). As the court rightly holds, the Walls' statutory arguments are wholly lacking in merit under both the text of Section(s) 1955 and Sixth Circuit case law interpreting Section(s) 1955.

B. Lack of National Uniformity in Section(s) 1955

Before addressing the reasoning used in the court's opinion, it is also necessary to consider a Commerce Clause argument the Walls make that is not based on Lopez. The Walls appear to have drawn this argument from United States v. Sacco, 491 F.2d 995, 1003 (9th Cir. 1974) (en banc) (upholding Section(s) 1955 against a Commerce Clause challenge). On the basis of a similar argument rejected in Sacco, the Walls challenge the lack of national uniformity in Section(s) 1955. In order to violate Section(s) 1955, one must first violate a state's gambling laws. Therefore, if a particular kind of gambling is not illegal in a state, it is not a violation of federal law to engage in that particular kind of gambling in the state. As a result, Section(s) 1955 applies to the same gambling activities differently depending on the state or states in which that gambling activity takes place. The Constitution specifically imposes uniformity requirements on some forms of economic regulation, for instance on the power to lay duties and excises. Currin v. Wallace, 306 U.S. 1, 14 (1939). The Commerce Clause includes no such requirement, however. Therefore, by negative implication, it has been held that no uniformity limitation can be engrafted onto the Commerce Clause. Ibid. Based on Currin, I conclude that the lack of uniformity in Section(s) 1955 is not fatal to its constitutionality under the Commerce Clause. Although, as I discuss below at pp. 73-77, I do think that 1955's peculiar manner of intruding into the criminal law related to gambling, an area of regulation traditionally reserved to the states, does implicate the Tenth Amendment.

C. Section 1955, the Bar Doctrine, and the Lottery Case

Another Commerce Clause argument not addressed by the court is one the government could have made to defend the constitutionality of Section(s) 1955, but either overlooked or did not choose to make. It is an argument too important not to consider, however, because it involves the only Commerce Clause case I am aware of in which the Supreme Court addressed the federal regulation of gambling. In Champion v. Ames, 188 U.S. 321, 358 (1903), commonly known as the Lottery Case, the Supreme Court upheld the constitutionality of a federal statute that prohibited the interstate transportation of lottery tickets, even though the Commerce Clause only gives Congress the power to "regulate" commerce. The Court held that the power to regulate encompasses the power to prohibit regulated activities in their entirety. This holding has become known as the "bar doctrine." See Lino Graglia, United States v. Lopez: Judicial Review under the Commerce Clause, 74 Tex. L. Rev. 719, 733-38 (1996) (discussing the development of the bar doctrine). The bar doctrine was extended in Hoke v. United States, 227 U.S. 308, 322 (1913), to uphold the constitutionality of the Mann Act, which, inter alia, prohibited the interstate transportation of women for the purpose of engaging in prostitution.

Professor Graglia argues that the evolution in the early twentieth century of the bar doctrine constituted as substantial an erosion of the enumeration of powers as the creation of the mere effects on interstate commerce test pioneered by the New Deal Supreme Court. Central to his thesis that Lopez represents a minor change in constitutional law is that Lopez did not curtail the bar doctrine in any way. Graglia, 74 Tex. L. Rev. at 755. Whether Graglia's conclusion that the bar doctrine survives Lopez is correct or not is irrelevant to the Walls' case, however, as the bar doctrine is not implicated here. Section 1955 does not mention interstate commerce at all. Obviously, under the bar doctrine Congress could have criminalized the interstate transportation of video poker machines (Champion) or it could have criminalized the interstate transportation of video poker machines with the intent to use them in the commission of some independently defined crime (Hoke). See United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996) (striking down the Comprehensive Environmental Response, Compensation, and Liability Act based on Lopez and noting that "regardless of the congressional motive or the broad dicta in the Champion opinion, the Lottery Act regulated a matter (cross-border movement of certain commerce) which the Court's interpretation of the dormant Commerce Clause had placed beyond the power of the states."). Section 1955 does not criminalize either of the general categories of activities addressed in Champion or Hoke, however. In fact, Section(s) 1955 criminalizes activity that could be completely unconnected to interstate commerce. Running a card game, where the playing cards were made from paper manufactured wholly within one state by unsophisticated methods using wood, chemicals, and machinery from that state, if directed as an illegal gambling operation under state law, would violate Section(s) 1955 as long as five people were involved in conducting the operation and the operation either continued for more than 30 days or had gross revenue of $2,000 or more on any single day. See Robert W. Lee, 18 U.S.C. §(s) 1955: Who Conducts an Illegal Gambling Business? — It's Just a Roll of the Dice, 12 W. St. U. L. Rev. 239, 244 (1984) ("Time has shown . . . that relative few continuous gambling operations are outside the parameters of the federal legislation."). Section 1955 is substantially different from either the statute upheld in the Lottery Case or in Hoke.

II. THE LOPEZ FRAMEWORK AND ITS APPLICATION TO THIS CASE

A. Appropriate Level of Scrutiny

Lopez is unclear on the proper level of constitutional review that courts should now apply to Commerce Clause challenges. See David G. Wille, The Commerce Clause: A Time for Reevaluation, 70 Tul. L. Rev. 1069, 1090 (1996) ("the Court appeared to be applying a higher level of scrutiny [than rational basis scrutiny in Lopez] and reasserting its constitutional role of judicial review by limiting Congress's power within particular, narrow boundaries"); Molly E. Homan, Comment, United States v. Lopez: The Supreme Court Guns Down the Commerce Clause, 73 Denv. U. L. Rev. 237 (1995) ("[t]he majority's analysis [in Lopez] . . . raised the question of what level of review the courts should apply in future Commerce Clause cases"); Leading Cases, 109 Harv. L. Rev. 111, 111 (1995) (editors of the Harvard Law Review opining that it is unclear whether Lopez signals a note of caution in rational basis review or "indicates an aggressive new level of review, untrammeled by the obligation to defer to legislative findings"). I read Lopez as requiring courts to use more than mere rational basis scrutiny in reviewing challenges to Congress's commerce powers. See Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. at 177 (Lopez represents a move "from rational basis (back) to intermediate scrutiny"); Wendy M. Rogovin, The Politics of Facts: 'The Illusion of Certainty', 46 Hastings L.J. 1723, 1725 (1995) (interpreting Lopez and other recent decisions of the Rehnquist Court as moving away from deference to Congress and replacing a deferential approach with requirements that empirical data support congressional findings); Larry E. Gee, Federalism Revisited: The Supreme Court Resurrects the Notion of Enumerated Powers by Limiting Congress's Attempt to Federalize Crime, 27 St. Mary's L.J. 151, 191 (1995) (Lopez is the "first step" in moving to a "Commerce Clause jurisprudence . . . based in fact"); Stephen M. McJohn, The Impact of United States v. Lopez: The New Hybrid Commerce Clause, 34 Duq. L. Rev. 1 (1995) ("Although not explicitly rejecting the 'rational basis' precedents, the Court appears to have abandoned its previous deference to Congress in favor of its own independent assessment of the effect on commerce."); Graglia, United States v. Lopez: Judicial Review under the Commerce Clause, 74 Tex. L. Rev. at 752 (noting that Lopez surprisingly uses the words "rational basis" to support its adoption of the "substantial effects" test, but that Lopez did not apply anything remotely like the rational basis test to the GFSZA)); Herman Schwartz, Court Abandons Rational-Basis Test, Legal Times May 8, 1995, at 25-26 (author's position clear from the title chosen for his article); Deborah Jones Merritt, Commerce!, 94 Mich. L. Rev. 674, 677 (1995) (Lopez applies a "toughened rational basis standard"). But see Doe v. Doe, No. 3:95cv2722 (JBA), 1996 WL 344026, at *4 (D. Conn. June 19, 1996) ("Lopez reaffirmed the rationality test"). Though there is obviously nothing in Lopez to indicate that the Court was applying strict scrutiny, the Court was definitely not applying minimal, rational basis scrutiny to the GFSZA. Below, I provide my best understanding of the type of intermediate scrutiny used in Lopez.

B. Three Broad Categories of Activities that Congress Can Regulate under the Commerce Clause

As the court recognizes, slip op. at 5, Lopez follows the tripartite test for Commerce Clause analysis set out by Justice Douglas in Perez v. United States, 402 U.S. 146, 150 (1971). Congress may properly regulate under its Commerce Clause power: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in commerce, even though the threat may come only from intrastate activities"; (3) "activities that substantially affect interstate commerce." Lopez, 115 S.Ct. at 1629-30. The government in this case concedes that it defends the statute exclusively because of the substantial effect on interstate commerce of gambling businesses made illegal by state law.

C. Lopez's Explication of the Substantial Effects Test

In holding that the GFSZA did not regulate activity that substantially affected interstate commerce, the Court noted that (1) the possession of a gun near a school zone was not a commercial activity or an essential part of a larger regulation of commercial activity; (2) the GFSZA lacked a jurisdictional nexus requirement that would allow courts to ensure through case-by-case inquiry that a particular firearm possession substantially affects interstate commerce; and, (3) the rationales offered by the Solicitor General to show a substantial effect on interstate commerce did not have a logical stopping point that would prevent the regulation of all intrastate activity on a similar basis. Lopez, 115 S.Ct. at 1630-34. The tough question we face is how these three points of analysis interact: In order to be constitutional, must a statute satisfy all three sub-parts of this test? In what order should the three sub-parts be applied? Because the GFSZA satisfied none of the three sub-parts, the Court did not have to face these questions. But they cannot be ignored. See United States v. Chesney, 86 F.3d 564, 576-77 (6th Cir. 1996) (Batchelder, J., concurring) (chastising many sister courts and commentators for reading Lopez's analysis of the substantial effects test as only requiring that a statute pass muster under any one of the three points to be held constitutional).

My best answer to the open question of how the three points made by the Court interact is contained in the following framework for analysis of whether an activity sought to be regulated substantially affects interstate commerce after Lopez: First, a reviewing court should determine whether the intrastate activity being regulated is commercial in nature or its regulation is an essential part of the regulation of some commercial activity. If the activity is neither commercial nor is its regulation an essential part of the regulation of commercial activity, then that activity cannot be regulated under the Commerce Clause. If the intrastate activity is either commercial or its regulation is necessary to the regulation of a commercial activity, however, then a reviewing court needs to go on to the next question.

Second, that court must ask whether the statute contains a jurisdictional nexus requirement that limits jurisdiction over the intrastate activity generally to those instances of the activity that have some particular connection with interstate commerce. If a facial challenge is mounted to the constitutionality of a statute with a jurisdictional nexus requirement, then this challenge must be rejected; the regulation being challenged is facially constitutional under the Commerce Clause. A jurisdictional nexus requirement should be read to invoke the full extent of Congress's Commerce Clause power. United States v. Russell, 471 U.S. 858, 859 (1985). It should also be read, however, especially when vague or incomplete, to avoid constitutional difficulties. If a statute contains a jurisdictional nexus requirement and the challenge is to the application of that requirement in a particular case, or the statute contains no jurisdictional nexus requirement, then the court must go on to the final question.

Third, the court must ask whether the statute's constitutionality or the constitutionality of its application in a particular case is supported by (1) the findings in the statute or the legislative history of the statute, if there are any; (2) by the litigants' proffered defenses of the constitutionality of the statute; or, (3) by the court's own attribution of congressional purpose to the statute. This listing of potential supporting rationales is meant to state a hierarchy. In other words, with a typical statute the presence of statutory findings will obviate the need to consider findings in the legislative history or the other sorts of rationales farther down the hierarchy. The rationales offered to support the constitutionality of the statute, whatever their location in the hierarchy, must have a logical stopping point that would prevent them from being used to regulate any intrastate activity. In light of the Tenth Amendment, this is especially true when the federal government seeks to regulate activities that have historically been the province of the states. Lopez, 115 S.Ct. at 1631 n. 3 (noting that states possess the primary authority under our constitutional system to define and enforce criminal law). A statute that must be upheld on the third sub-part of the Lopez substantial effects test that intrudes upon those areas of life that have traditionally been exclusively regulated by the states is highly unlikely to have the requisite logical stopping point. But, if at least one of the rationales does have such a logical stopping point, then the statute is insulated from facial constitutional challenge.

In as-applied challenges to a statute with a jurisdictional nexus requirement or a logical stopping point, the test is whether the instance of the activity to be regulated falls within the terms of the jurisdictional nexus requirement or within the rationales having a logical stopping point offered to support the constitutionality of the statute. If the instance of the activity to be regulated falls within these parameters, then the as-applied challenge fails. If it is outside of these parameters, then the as-applied challenge succeeds.

For convenience, the flowchart at the top of the next page illustrates this understanding of the Lopez substantial effects test:

Four important consequences of my analysis of the substantial effects test are: (1) non-commercial activities can be regulated, but their regulation must be essential to a larger regulation of some commercial activity; (2) not all commercial activities can be regulated by Congress; (3) a jurisdictional nexus requirement or a rationale with a logical stopping point can sometimes protect a statute from a facial Commerce Clause challenge, but not from an as-applied challenge; and (4) the fact that a statute regulates activities that have been traditionally regulated by the states (a Tenth Amendment concern) is relevant only if a statute's validity depends on whether the rationales offered to support its constitutionality have a logical stopping point because whether the traditional purview of state regulation is impinged upon is crucial in testing whether a logical stopping point exists.

D. Application of Lopez's Substantial Effects Test to Section(s) 1955

1. Commercial Activity

Section 1955 involves the regulation of what is obviously a commercial activity within the meaning of Lopez. Gambling is a diversion that people pay money to engage in. Some forms of gambling may be mere entertainment, but it is clear that Section(s) 1955 is directed at gambling businesses. Therefore, I do not need to consider whether the statute regulates non-commercial activity essential to the regulation of some commercial activity. I can move on to answer the second and third questions in the above framework. I pause only to address in advance one potential objection to this approach. Some have contended that analysis under Lopez's substantial effects test should cease when the intrastate activities being regulated are determined to be commercial. I do not think that this is the proper way to read Lopez.

Proponents, perhaps including the court, of the view that all intrastate commercial activities can be regulated under Lopez's substantial effects test point to Chief Justice Rehnquist's statement in Lopez that the Gun Free School Zones Act 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." Lopez, 115 S.Ct. at 1630-31. See Cheffer v. Reno, 55 F.3d 1517, 1520 (11th Cir. 1995) (upholding the Freedom of Access to Clinic Entrances Act ("FACE") against a Lopez-based challenge because the provision of reproductive health services is commerce); United States v. Lucero, 895 F. Supp. 1421, 1423 (D. Kan. 1995) (FACE is constitutional because the provision of reproductive health services is commerce); United States v. Smith, 920 F. Supp. 245, 248 (D. Me. 1996) (Lopez permits the regulation of any goods that "frequently travel" in interstate commerce); United States v. Najarian, 915 F. Supp. 1460, 1472 n. 19 (D. Minn. 1996) (Lopez only requires a "commercial nexus," which was satisfied even when intrastate distribution of a drug was being regulated by the FDA); John P. Frantz, Note, The Reemergence of the Commerce Clause as a Limit on Federal Power, 19 Harv. J. L. Pub. Pol'y 161, 167-68 n. 52 (1995) (all commercial activities are regulable under the Commerce Clause after Lopez).

The Court could not have intended to imply that all commercial activities could be regulated when it said that the GFSZA "is 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." Lopez, 115 S.Ct. at 1630-31. Else, the word "interstate" in the Commerce Clause is rendered a nullity. Similarly, the fact that Section(s) 1955 is a criminal statute does not determine its (un)constitutionality, even though criminal laws are the traditional purview of the states. Some commercial regulation must be off limits to Congress under its commerce powers, just as all criminal regulation is not off limits to Congress.

Lopez also went to great lengths to make the lower federal courts aware that the test in connection with this third broad category of congressional power is not whether there is any effect on interstate commerce, but whether the effect is substantial. "We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce." Lopez, 115 S.Ct. at 1630 (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n. 27 (1968), which also required a substantial effect on interstate commerce). It would odd for the Supreme Court to emphasize this point if any commercial activity, whether intrastate or interstate, would be constitutionally regulable by Congress under its commerce powers per se.

Finally, the mere purchase of goods made in other states cannot be sufficient to permit congressional regulation of an intrastate commercial activity, especially by means of criminal statutes. For instance, here the Walls purchased video poker machines from a retailer in their own state. The machines were then shipped from New Jersey to the Walls at their retailer's request. If this is enough to authorize congressional regulation of the Walls' gambling business, then almost any activity in modern America may be federally criminizable. I consider this argument in more detail below (see p. 45) in connection with the explicit findings Congress made when enacting Section(s) 1955. My basic point, however, is that the conclusion that an intrastate activity is commercial in nature does not end the Lopez inquiry under the substantial effects test.

2. Jurisdictional Nexus Requirement

Section 1955 does not have a jurisdictional nexus requirement that could ensure, on a case-by-case basis, that the intrastate gambling operations reached by the statute are sufficiently connected to interstate commerce to be regulated by Congress under its commerce powers. Commentators have been nearly unanimous in recognizing the centrality of the lack of a jurisdictional nexus requirement in considering the validity of statutes after Lopez. Even though Section(s) 1955 lacks a jurisdictional nexus requirement, there is one other way to save the statute from being struck down as unconstitutional: the rationales offered to support the statute might serve as a surrogate for a jurisdictional nexus requirement. Determining whether this is the case requires an analysis of these rationales to discover whether they have any logical stopping point. Just as a jurisdictional nexus requirement must put the regulation of some intrastate commercial activities off limits, so must the rationales offered to uphold the constitutionality of such a statute. I turn now to a consideration of these rationales.

3. Congress's Findings in Connection with Section(s) 1955

In Lopez, the Court rejected the following arguments to support the assertion that possession of a firearm within 1,000 feet of any school substantially affected interstate commerce: (1) firearm possession near schools could result in violent crime which, (a) has high costs that are paid by the general population through insurance premiums, and (b) could deter individuals from traveling to areas perceived to be unsafe; (2) firearm possession near schools substantially threatens the educational process, and therefore could reduce the productivity of the national citizenry. Lopez, 115 S.Ct. at 1632. The Court labeled the first of these reasons, the "costs of crime" rationale, and the second, the "national productivity" rationale. Ibid. Both of these rationales were flawed because under them "it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign." Ibid.

In this case, Congress made supporting findings in the statute itself. Normally, under my analysis of the Lopez substantial effects test, this would mean that I would not need to consider findings made in the legislative history or rationales offered to support the statute by the litigants, or attempt to attribute a purpose to the statute without these extrinsic aids. As these legislative findings show, however, the aim of Section(s) 1955 was to target organized crime's illegal gambling operations, though the law's actual ambit is vastly wider. If these congressional findings are to have any logical stopping points, those points must be contained in the five more particular findings set forth in the legislative history of Section(s) 1955 and addressed in detail below. The "reams" of rationales (see slip op. at 13) mentioned in the legislative history for enacting Section(s) 1955, however, have no logical stopping points:

The Congress finds that (1) illegal gambling involves widespread use of, and has an effect upon, interstate commerce and the facilities thereof; (2) illegal gambling is dependent upon facilities of interstate commerce for such purposes as obtaining odds, making and accepting bets, and laying off bets; (3) money derived from or used in illegal gambling moves in interstate commerce or is handled through the facilities thereof; (4) paraphernalia for use in illegal gambling moves in interstate commerce; and (5) illegal gambling enterprises are facilitated by the corruption and bribery of State and local officials or employees responsible for the execution of or enforcement of criminal laws.

Sacco, 491 F.2d at 999 (quoting S. Rep. No. 617, 91st Cong., 1st Sess. 16 (1969)). I analyze each of these congressional rationales in turn to determine whether they can support the constitutionality of Section(s) 1955 in light of Lopez.

The first rationale, that any illegal gambling has an effect on interstate commerce, is marred in two respects. It references an effect, rather than a substantial effect, as Lopez requires. Moreover, even assuming Congress believed the effect to be substantial, this finding in the legislative history is not a rationale at all, merely an ultimate conclusion by Congress of what needs to be true in order for an exercise of its power to fall within the scope of the Commerce Clause. Congressional findings can be helpful to a court examining congressional intent, Preseault v. ICC, 494 U.S. 1, 17 (1990), but they are not dispositive of the judicial inquiry required by the Commerce Clause. Lopez, 115 S.Ct. at 1631; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring). The fifth rationale, relating to state and local corruption, while laudable and an excellent policy reason to justify federal intervention, does not even attempt to establish the necessary link between interstate commerce and the gambling activity being regulated. No causal chain linking state and local corruption and interstate commerce, however attenuated, was even stated in this rationale, let alone proven.

The third rationale is also devoid of any ability to limit Congress's power. If the fact that money derived from or used in an activity will travel in interstate commerce is sufficient to give Congress the power to regulate under the Commerce Clause, then this constitutional provision is rendered meaningless. In Lopez, the Court invoked a fear of congressional jurisdiction over family law, implicitly assuming that such regulation was beyond the Commerce power. Lopez, 115 S.Ct. at 1632. Because the money used for child support payments and paid out as a result of divorce decrees is likely to move in interstate commerce, Congress's third rationale to support Section(s) 1955 would justify intrusion into the same area of state regulation that the Supreme Court argued in Lopez could not be reached.

The second (illegal gambling depends on facilities of interstate commerce) and fourth (illegal gambling uses paraphernalia that traveled interstate) rationales are closely related, and perhaps identical. They merit closer consideration. Dependence on the facilities of interstate commerce, the second rationale, is flawed because not every gambling enterprise requires information, such as centrally-established odds, to be transmitted across state lines. For instance, video poker gambling operations can be conducted without the transmission of odds information across state lines. Unlike a typical national sports betting operation, where a resident of New Jersey might call a bookie in New York to bet on a college football game taking place in California using odds set in Nevada, a video poker gambling operation need not necessarily use the facilities of interstate commerce — unless Congress intended "facilities" of interstate commerce to mean requiring the use of goods that have traveled in interstate commerce, in which case the identity of the second and fourth rationales becomes apparent. See Lee, 18 U.S.C. §(s) 1955: Who Conducts an Illegal Gambling Business? — It's Just a Roll of the Dice, 12 W. St. U.L. Rev. at 239-40 ("Due to the prevalence of sports betting, most gambling money is presently wagered through bookmaking operations. . . . [D]ue to the vast informational system needed to effectuate a profitable and efficient operation, bookmaking has been exclusively dominated by organized crime elements.").

By contrast, United States v. Leon, 534 F.2d 667 (6th Cir. 1974), the pre-Lopez case in which the Sixth Circuit upheld the constitutionality of Section(s) 1955 on Commerce Clause grounds, presents a better case on its facts for the existence of a substantial nexus with interstate commerce than this case. The gambling enterprise there was at least a conventional bookmaking operation that made great use of the telephone network and probably involved out-of-state betting. Id. at 672 (discussing illegal bets placed on a St. Louis sports team, in an action brought in the Eastern District of Michigan).

It is frequently said in the Commerce Clause context that "when it is necessary in order to prevent an evil to make a law embrace more than the precise thing to be prevented, it [Congress] may do so." Westfall v. United States, 274 U.S. 256, 259 (1927) (Holmes, J.). Simply because video poker is not as closely connected to interstate commerce as a national sports betting operation does not mean that Congress might not be able to prohibit video poker, if such a prohibition were necessary to the enforcement of the proscription against truly national gambling. This is nothing more than a special example of the operation of the Necessary and Proper Clause in the Commerce Clause context.

The celebrated case of Wickard, the result of which is not questioned in Lopez, although it clearly reached well beyond the text of the Commerce Clause, has been given a new orientation by the Supreme Court. See United States v. Denalli, 73 F.3d 328, 330 (11th Cir. 1995) (per curiam) (Lopez makes it clear that the Wickard lines of cases 'may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectively obliterate the distinction between what is national and what is local'") (quoting United States v. Pappadopoulos, 64 F.3d 522, 526-27 (9th Cir. 1995)); Alaska v. Babbitt, 72 F.3d 698, 707 (9th Cir. 1995) (Hall, dissenting) (concluding that a statute giving subsistence fishing priority on public lands to navigable waters within those public lands was outside of Congress's commerce powers because "[i]t would be hard to argue that the priority of a handful of Alaskan natives over subsistence fishing in one river in Alaska would "substantially affect" interstate commerce); Schroeder, 912 F. Supp. 1242-43 ("No longer will the Wickard v. Filburn rationale be good enough to allow Congress to regulate any area of an individual's life.") (footnote omitted); Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. at 174-75 (after Lopez, Wickard "becomes a case in which price stabilization . . . is thought to be achievable only by regulating the amount of wheat available in the market") (emphasis added). See also John W. Boyle, Note, 34 Duq. L. Rev. 187 (1995) (puzzled by how the Lopez majority used Wickard to support its conclusions).

In Lopez, the Court categorized Wickard as standing for the proposition that intrastate activity may be regulated if doing so is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Lopez, 115 S.Ct. at 1631. After Lopez, Wickard is a category two case, regulating intrastate activities that threaten the regulation of things in interstate commerce or instrumentalities of interstate commerce. Id. at 1630-31. Wickard thus becomes an excellent example of the application of the Necessary and Proper Clause to Congress's commerce power. Wickard upheld the Agricultural Adjustment Act of 1938, regulating the sale of homegrown wheat. 317 U.S. at 128-29. The Court reasoned that it was within Congress's power to regulate the price of wheat in interstate markets. To do so effectively, however, it was vital to be able to regulate wheat production and homegrown consumption in the aggregate, even though any single grower of wheat at home was unlikely to disrupt the government's regulation of interstate wheat prices singlehandedly.

United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942), a case discussed along with Wickard in Lopez, is similar — Congress can regulate the price of milk sold intrastate because of competition with milk sold interstate. Lopez, 115 S.Ct. at 1628 ("the commerce power 'extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power'") (quoting Wrightwood, 315 U.S. at 526). The broad sweep of Section(s) 1955 cannot be justified under Wickard or Wrightwood Dairy as interpreted in Lopez, however. Regulating video poker is in no sense necessary to regulating national sports betting. Intrastate video poker does not interfere in a substantial way with the regulation of national sports betting. The activities both involve gambling, but their regulation is completely severable. To argue otherwise would convert Justice Holmes's statement in Westfall (see supra p. 50) into: 'when one evil properly within Congress's power is of the same general sort as another evil, then Congress may regulate the other evil.' This is a tremendous distortion of the Necessary and Proper Clause and an improper expansion of Congress's power after Lopez, cutting against the grain of the entire purpose of enumerating specific congressional powers in the Constitution.

The statutes involved in Wickard and Wrightwood Dairy are distinguishable from Section(s) 1955 because they involved price regulation. To regulate interstate prices effectively, it will almost always be necessary for Congress to regulate intrastate prices in the same good or service. Section 1955 is not aimed at regulating the price at which gambling activities take place. It is aimed at eliminating certain kinds of gambling activity, based on the legal status of those activities under state law, not on general commercial, or even moral, effects. The kinds of gambling activities that remain legal under 1955 and those that it makes illegal were not thought by Congress to be fungible entertainments. Certainly, in the aggregate, making some kinds of activities illegal will raise the price of the illegal activities and induce substitution toward legal forms of the activity. However, this is not the purpose of Section(s) 1955, as the findings of Congress make clear. Section 1955 is not a price regulation statute. If it were, the statute would define the gambling activities made illegal without reference to state law. Any argument that Congress was attempting to regulate the price of interstate gambling by means of 1955 cannot account for why Congress would therefore choose to exempt from federal reach all gambling that is legal under state law. The court admits as much in a footnote. Slip op. at 15 n. 16. Legal gambling, like illegal gambling, may have the same effect of inducing people to cross state lines, yet it is not prohibited by the statute. Thus, the congressional aim in Section(s) 1955 was not to regulate the price of interstate gambling, but rather to add an additional level of federal, police-power-like, enforcement on top of existing state anti-gambling laws.

Congress's fourth rationale, resting on the fact that some illegal gambling paraphernalia travels in interstate commerce, cannot constitutionally justify Section(s) 1955 because the mere use of goods that have traveled in interstate commerce to further some activity should not be sufficient to establish that the activity has a substantial effect on interstate commerce. If this were not true, nearly every human activity could be regulated by Congress, as most contemporary activities involve the use of goods that are manufactured and transported across state lines or incorporate components that similarly traveled in interstate commerce. The Commerce Clause would thus be converted into a general police power. Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 13 (1888) (Congress lacks a general police power). Such an expansive reading of the Commerce Clause would violate the clear function of the enumeration of powers. Lopez, 115 S.Ct. at 1626. "To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id. at 1634. As the Supreme Court implicitly makes clear in Lopez, for instance, a federal domestic relations law is not authorized by the Commerce Clause simply because marital beds are purchased in interstate commerce.

There is every reason to give Congress more leeway in terms of regulating commercial activities than non-commercial activities. Activities like gambling at least involve commerce on some level. However, this recognition cannot be taken too far without judicially excising the word "interstate" from the Commerce Clause. The regulation of truly interstate gambling operations, such as those that make frequent use of the telecommunications network and rely on bettors living in different states, are within Congress's commerce power. A video poker operation that drew a substantial number of its patrons from other states also could be reached by Congress. Congress could have written a statute to reach these gambling operations alone simply by including a jurisdictional nexus requirement. Courts would then be free to judge the nexus with interstate commerce of the Walls' illegal gambling operation against such a provision — as, for example, the Supreme Court did for the RICO statute at issue in United States v. Robertson, 115 S.Ct. 1732 (1995) (per curiam), a case decided shortly after Lopez. This statute included an interstate jurisdictional nexus requirement and thus permitted the Court to analyze the facts of the case to see if a sufficient statutory nexus existed. By contrast, in Section(s) 1955, Congress did not use the caution it should have used in defining the interstate problem it was attempting to solve. The federal courts must guard against congressional overreaching and overbroad statutes, even if these abuses result from congressional inadvertence. See Sacco, 491 F.2d at 1007-11 (Ely, J., dissenting) (laying out in detail the divergence between Congress's narrow desire to address the problem of organized crime in 1955 and the very broad statute it actually enacted); John S. Baker, Nationalizing Criminal Law: Does Organized Crime Make it Necessary or Proper?, 16 Rutgers L.J. 495, 497 (1985) ("Activity labeled 'organized crime' has become almost indistinguishable from ordinary crime and even from some organized noncriminal activity. As a result, the role of federal law enforcement has expanded much more so than many realize.").

The Ninth Circuit, in Pappadopoulos, 64 F.3d 522, has reached this same conclusion: the mere use of "interstate commerce" goods in connection with some activity cannot be enough to grant Congress the power to regulate the activity on that basis alone. In Pappadopoulos, the Ninth Circuit held that the interstate commerce jurisdictional requirement (invoking Congress's full panoply of powers under the Commerce Clause) of 18 U.S.C. Section(s) 844(i), prohibiting arson against buildings used in interstate commerce or in any activity substantially affecting interstate commerce, was not met when the defendant burned down a house that used natural gas purchased from a company that sometimes obtained that gas from other states. Id. at 527. Holding that neither the first (channels of interstate commerce) nor second (instrumentalities of interstate commerce) bases of commerce power under Lopez applied, the Ninth Circuit applied the third category's requirement that the effect on interstate commerce must be substantial for Congress to properly invoke its power: "The arson of such a structure has only a remote and indirect effect on interstate commerce." Id. at 528. On the other hand, the Fourth Circuit held that a house receiving electricity from an interstate power grid had a sufficient effect on interstate commerce to satisfy the nexus requirement of the arson statute. United States v. Moore, 25 F.3d 1042, at *3 (4th Cir. 1994) (unpublished per curiam), cert. denied, 115 S.Ct. 1838 (1995). Justice Scalia, however, would have granted the writ and remanded for reconsideration in light of Lopez. 115 S.Ct. at 1838.

Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding the application of Title II of the 1964 Civil Rights Act to a restaurant that obtained a large portion of its food in interstate commerce), and to a lesser extent Heart of Atlanta (rejecting a similar challenge to Title II where the public accommodations industry was subjected to anti-discrimination regulation because the patrons of such establishments were often interstate travelers), may seem to hold that the mere use of goods that traveled in interstate commerce is sufficient to allow regulation of the underlying activity. However, each of the statutory provisions in those cases contained a jurisdictional provision requiring the government to demonstrate an individualized nexus to interstate commerce. The statute in Lopez lacked such an element, as does Section(s) 1955. Cf. United States v. Robinson, 62 F.3d 234, 236-37 (8th Cir. 1995) (upholding constitutionality of federal carjacking statute because statute had the jurisdictional nexus requirement lacking in the GFSZA and because cars are commodities that move in interstate commerce); United States v. Oliver, 60 F.3d 547, 550 (9th Cir. 1995) (same); United States v. Hanna, 55 F.3d 1456, 1462 (9th Cir. 1995) (upholding constitutionality of federal statute criminalizing possession of a firearm by a convicted felon because it included a jurisdictional nexus requirement); Campbell, 891 F. Supp. at 212 (same). The statute in Heart of Atlanta was limited to the regulation of public accommodations, the operations of which "affect commerce." Heart of Atlanta, 379, U.S. at 247. The statute in McClung was limited to the regulation of restaurants that offered "to serve interstate travelers" or that derived "a substantial portion of the food" they served from commerce. McClung, 379 U.S. at 298. After Lopez, therefore, the statutes in Heart of Atlanta and McClung are insulated from facial constitutional challenges because they regulate commercial activity and have jurisdictional nexus requirements embedded within them.

For statutes lacking a jurisdictional nexus requirement, however, the connection to interstate commerce generally must be more than slight. The connection of an individual instance of some overall activity can be slight only if the regulation of that activity in the aggregate is necessary to the regulation of what is clearly interstate commerce. The regulation of intrastate gambling illegal under state law is in no sense necessary to the regulation of interstate gambling. Section 1955 is not a price regulation of a fungible good or service. Any argument to the contrary is undercut by the statute's failure to criminalize identical gambling activities in different states depending on whether the activities are legal under state law.

Section 1955 regulates a commercial activity, but it does not contain a jurisdictional nexus requirement. Section 1955's congressional findings contain no logical stopping point that could serve as a surrogate for the missing jurisdictional nexus requirement. If this statute is constitutional on the basis of Congress's findings in this case, then Congress could, by making similar findings in other statutes, regulate every intrastate activity in the country, including, for example, domestic relations. Moreover, Section(s) 1955 regulates criminal activity, the regulation of which has been the traditional province of the states. Moralistically-based legislation outlawing gambling has also been the traditional concern of the states. Thus, Section(s) 1955 raises Tenth Amendment concerns that only reinforce my conclusion that this statute is unconstitutional.

I conclude Section(s) 1955 is unconstitutional under Lopez's third category because some of the activity the statute regulates does not substantially affect interstate commerce.

III. THE COURT'S ANALYSIS OF THE WALLS' COMMERCE CLAUSE CHALLENGE TO Section(s) 1955

As I read the court's opinion, it rests on five propositions: (1) 1955, unlike the GFSZA in Lopez, is "commercially related . . . part of an economic enterprise," slip op. at 11; (2) the lack of a jurisdictional interstate nexus requirement, one of the defects of the GFSZA, is not fatal to Section(s) 1955's constitutionality, because unlike the GFSZA, Section(s) 1955 is supported by "reams of legislative historical information," slip. op. at 13; (3) Perez, 402 U.S. 146, which upholds the constitutionality of Title II of the Consumer Protection Credit Act (targeting loan sharking), 18 U.S.C. § 891 et seq., is cited approvingly in Lopez, slip op. at 14; (4) because Section(s) 1955 criminalizes only gambling that violates state law it shows Congress "display[ing] some sensitivity and respect for federal-state comity and avoid[ing] unwarranted intrusion in an area traditionally reserved to the states," slip. op. at 15 n. 16; and, (5) "Most courts have resisted urgings to extend Lopez beyond [the Gun Free School Zones Act (GFSZA), 18 U.S.C. Section(s) 922(q)]," slip op. at 8. Unfortunately, none of these rationales give Lopez its due.

A. Lopez Allows Congress to Regulate Any Commercial Activity

First, it is a weak argument to maintain that the difference between running a gambling operation (undisputably a commercial enterprise) and possessing a gun within 1,000 feet of a school (probably not a commercial enterprise, unless one adopts the reasoning of Justice Breyer's dissent in Lopez, in which case every human activity is a commercial enterprise) immediately makes Lopez inapposite to an inquiry into Section(s) 1955's constitutionality. The court ignores portions of Lopez that are inconvenient to that argument. The Supreme Court indicated in Lopez that any rationale offered to support constitutionality under the substantial effects test will fail if it does not have a logical stopping point. Lopez, 115 S.Ct. at 1632-33 (rejecting government's and Justice Breyer's proffered rationales because, if they were accepted, "it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign"). See also Pappadopoulos, 64 F.3d at 526, 528; United States v. Wilson, 880 F. Supp. 621, 625-26 (E.D. Wis.), rev'd 73 F.3d 675 (7th Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3669 (Mar. 20, 1996); Jeffrey Rosen, Fed Up: Gun-Free School Zones Act of 1990 Justifiably Overturned by U.S. Supreme Court; Court Watch, New Republic, May 22, 1995 (arguing Justice Breyer's dissent in Lopez is flawed because it presents no limits to federal power). Cf. Northern Secs. Co. v. United States, 193 U.S. 197, 404 (1904) (Holmes, J., dissenting) ("Commerce depends upon population, but Congress could not, on that ground, undertake to regulate marriage and divorce.") The court's reasoning is tantamount to holding that Congress can regulate any commercial activity under the Commerce Clause. This argument ignores the sure stopping point given in the text of the Commerce Clause itself — the commercial activity must be "interstate" commercial activity. This is the purpose of Lopez's discussion of the lack of an interstate nexus requirement, given as a reason for striking down the GFSZA. In a pre-Lopez case, the Supreme Court even acknowledged this fact of Commerce Clause jurisprudence: "The subject of federal power is still 'commerce,' and not all commerce but commerce with foreign nations and among the several states. The expansion of enterprise has vastly increased the interests of interstate commerce, but the constitutional differentiation still obtains." Wirtz, 392 U.S. at 193 (quoting Santa Cruz Fruit Packing Co. v. NLRB, 303 U.S. 453, 466 (1938)) (emphasis supplied). See also Linda Greenhouse, Justices Step in as Federalism's Referee, N Y Times, April 28, 1995, at A1 (quoting Justice O'Connor asking the Solicitor General at oral argument in Lopez: "Is there any business enterprise in America that wouldn't be covered" by your broad theory of the commerce power?).

The Walls conducted a wholly intrastate gambling operation in Tennessee. Their only connection with interstate commerce was their purchase of video poker machines from a Tennessee business that arranged to have the machines shipped from another business in New Jersey. This purchase was criminal under neither federal nor Tennessee law — only the Walls' use of the machines for gambling purposes transformed their acts into federal criminal behavior. Of course, if an isolated use, to further some activity, of goods that have traveled in interstate commerce is sufficient in and of itself to support federal regulation of that activity, then virtually no activity is immune from federal regulation. Therefore, Lopez rejects the reasoning that the Walls were engaged in interstate commerce merely by conducting a gambling operation that on one occasion used supplies lawfully purchased in interstate commerce.

The court supports its argument that Lopez establishes that all regulation of commercial activity is constitutional by citing Judge Becker's dissent in United States v. Bishop, 66 F.3d 569 (3d Cir.), cert. denied, 116 S.Ct. 681 (1995). Slip op. at 11 n. 12. Judge Becker rejected the idea that 18 U.S.C. §(s) 2119, which prohibits carjacking, was constitutional under the Commerce Clause because carjacking is not a commercial activity. Judge Becker argued in Bishop that an activity must involve a voluntary economic exchange in order to be deemed a commercial one. Bishop, 66 F.3d at 591-92 (Becker, J., dissenting). Judge Becker's analysis, even if accepted, merely establishes that the existence of a commercial activity is a necessary requirement to sustain a use by Congress of its Commerce Clause powers to regulate activities that substantially affect interstate commerce after Lopez, not that the existence of a commercial activity is a sufficient requirement to that end.

B. Existence of Congressional Findings in Regard to Section(s) 1955

Second, court attempts to circumvent the need for a jurisdictional nexus requirement in this case by pointing out that Congress made "reams" of findings in connection with Section(s) 1955. To be sure, the court is not alone in making this argument. Nevertheless, the mere presence of congressional findings is not and cannot be dispositive of the issue of whether a statute is constitutional. "Lopez is clearly a substantive, principle-based decision, and not a narrow procedural holding based on the lack of congressional findings." Gerald G. Ashdown, Federalism, Federalization, and the Politics of Crime, 98 W. Va. L. Rev. 789 (1996). "[T]he Court's major doctrinal basis for its holding had little to do with the presence or absence of findings." Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 Case W. Res. L. Rev. 695 (1996). Obviously, if Congress can simply "find" that a statute is constitutional or simply "find" that a statute has the prerequisites for constitutionality, then the Commerce Clause, to say nothing of the rest of the written Constitution, is a rendered a dead letter. It is "emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); Heart of Atlanta, 379 U.S. at 273 (Black, J., concurring) ("whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court"). Moreover, a long line of precedent notes that Congress does not need to make findings in the Commerce Clause context, and that the courts have an independent duty to assess the rationality of any findings that Congress does make. Granted, "deference" was the "buzz word" of pre-Lopez Commerce Clause decisions after the New Deal, but at no point does Lopez instruct the inferior federal courts to abdicate their responsibility to conduct judicial review in this context. Quite to the contrary, Lopez notes only that courts should "consider legislative findings" "as part of [their] independent evaluation of constitutionality under the Commerce Clause." (Emphasis added). Lopez 115 S.Ct. at 1631. Indeed, the court shows its awareness of Lopez's discussion of findings, but it quotes a selection from this discussion only for the proposition that Congress is not required to make findings in order for the constitutionality of a statute to be upheld. Slip op. at 6 n. 5. This is a mere tautology in light of the proposition that courts independently review the constitutionality of statutes — the existence of congressional findings does not put an end to the constitutional inquiry.

C. Lopez Favorably Cites Perez

Third, the court's argument that Lopez's favorable citation to Perez is significant is flawed. Before Lopez and under Perez alone, it is obvious that Section(s) 1955 would have been upheld as constitutional. This is indeed what our court did by citing and analyzing Perez in Leon, the pre-Lopez precedent in the Sixth Circuit upholding the constitutionality of Section(s) 1955. It could be said that because the statute at issue in Perez was also directed at organized crime, Section(s) 1955 must survive if Perez has not explicitly been overruled by Lopez. But Perez involved a significantly different statute. The fact that some regulation is constitutional, of course, does not mean that all regulation is constitutional.

The Supreme Court's simple citation to Perez as an example of a statute previously held valid under a different view of the Commerce Clause is hardly an endorsement of anything more than the bare result in the case. The Supreme Court cited Wickard as well, yet it is obvious that some of the Justices on the Court have doubts about Wickard, at least as it had been interpreted before Lopez. Id. at 1630 (Wickard is the most "far reaching example of Commerce Clause authority"). See also id. at 1648 (Thomas, J., concurring) (attacking New Deal cases creating the substantial effect test). Cf. Raoul Berger, Judicial Manipulation of the Commerce Clause, 74 Tex. L. Rev. 695, 707-11 (1996) (applauding Justice Thomas for recognizing, as Thomas Jefferson and James Madison did, that everything "affects" everything else, and that under a simple "affects" reading of the Commerce Clause, the enumeration of powers is threatened, if not eviscerated); Douglas A. Stevinson, Note, 26 Seton Hall L. Rev. 897 (1996) (criticizing the Lopez Court for not going far enough and leaving confusion about the validity of earlier Commerce Clause precedent in its wake). But see Lopez, 115 S.Ct. at 1637 (Wickard is among cases that are "within the fair ambit of the Court's practical conception of commercial regulation" that "are not called into question by our decision today") (Kennedy, J., concurring); Bishop, 66 F.3d at 590 (Lopez does not alter older precedent significantly); Torres, 1995 WL 459247, at *2 (relying on pre-Lopez precedent to uphold constitutionality of RICO, the Hobbs Act, the federal carjacking statute, 18 U.S.C. §(s) 924(c), and 1959).

I would agree with the court's conclusion if this case involved 18 U.S.C. §(s) 891, the very statute at issue in Perez. In that situation, we could not apply Lopez to overrule Perez. Only the Supreme Court could do this. "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). See also Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam) (lower federal courts must follow Supreme Court precedent lest "anarchy . . . prevail within the federal judicial system"); Heath v. Varity Corp., (7th Cir. 1995) (existing Supreme Court precedents directly on point must be applied by inferior federal courts, although such courts remain free to explain why they think that these precedents have been overtaken by subsequent developments in other Supreme Court precedent or are flawed in other respects); United States v. Rawls, 85 F.3d 240, 243 (5th Cir. 1996) (upholding 18 U.S.C. Section(s) 922(g)(1) against Commerce Clause challenge after Lopez because of Supreme Court precedent upholding its predecessor statute, but noting that if the matter were being considered "res nova," a different result might have obtained). Cf. Janklow v. Planned Parenthood, Sioux Falls Clinic 116 S.Ct. 1582 (1996) (Scalia, J., dissenting from denial of certiorari) (criticizing Justice Stevens, concurring in the denial of certiorari, for arguing that courts of appeals could ignore a Supreme Court case based on doubts about that case's validity expressed by three Justices; arguing the courts of appeals must follow cases, not count votes). Section 1955, however, is both a statute that has never been determined to be constitutional by the Supreme Court and a statute that is very different than 18 U.S.C. §(s) 891, the statute upheld in Perez.

Most importantly, the court's Perez argument, that Congress can regulate any intrastate activity when the class of activity to which it belongs substantially affects interstate commerce, is too broad. Slip op. at 14 n. 14. See also Chesney, 86 F.3d at 570 (making the same error). The court's summary of Perez's holding as interpreted in Lopez is true, but provides no support for upholding Section(s) 1955. In order for the regulation of intrastate instances of some activity to be regulable, their regulation must be necessary to the regulation of persons or things in interstate commerce. This is a key part of the holding in Lopez. Without it, all instances of an activity could be automatically conceptualized as a class which in the aggregate could be said to affect interstate commerce substantially and on that basis be regulated. Education in the aggregate affects interstate commerce. This was the point of the dissents in Lopez. So does marriage. After Lopez, however, in order to regulate education and marriage, for instance, Congress cannot simply assert that these classes of activity affect interstate commerce and on that basis regulate them. If this were the case, the Supreme Court would not have discussed the need for jurisdictional nexus requirements, which have the purpose of separating regulable instances of an activity from non-regulable instances of an activity. The Court would simply have concluded, as did the dissenters, that the possession of guns near schools, as a class of activities, affected interstate commerce. It is more than ironic that the court cites Sacco, 491 F.2d at 999, for the proposition: "If the class of activities is within the reach of the federal power . . . [t]here is no need for inquiry on a case-by-case basis or proof that a particular activity had an effect on interstate commerce." Slip op. at 14 n. 14. Lopez specifically points out that a jurisdictional nexus requirement serves exactly this purpose. 115 S.Ct. at 1631.

The Perez "class of activities" doctrine, like the prevailing interpretation of Wickard, has been reformulated in Lopez. First, the "class of activities" doctrine is never explicitly discussed in the majority opinion in Lopez. Moreover, it is directly disparaged by Justice Thomas without comment by any of the other Justices in the majority. Lopez, 115 S.Ct. at 1650 (Thomas, J., concurring). After Lopez, in order to regulate intrastate activities, it must be true such regulation is necessary to the regulation of some interstate activity. The court confuses the analysis applicable to Lopez's second category with the analysis under the third, substantial effects, category, which is the only category relevant to this case. The Supreme Court noted only that a class of intrastate activities may be regulated when they threaten the regulation of the instrumentalities of interstate commerce or the regulation of persons or things in interstate commerce. Id. at 1629. The discussion of a jurisdictional nexus requirement in category three analysis would be pointless if the Perez's "class of activities" doctrine applied to this category. A jurisdictional nexus requirement's raison d'etre is to separate regulable instances of a class of activities out from non-regulable instances of a class of activities. If an entire class of activities could be regulated in category three, then a jurisdictional nexus requirement becomes superfluous. D. Section 1955 Is An Example of Congress Showing Comity to the States Fourth, the court holds that Section(s) 1955 is constitutional because it criminalizes only gambling that violates state law, and so it shows "Congress display[ing] some sensitivity and respect for federal-state comity and avoid[ing] unwarranted intrusion in an area traditionally reserved to the states." Slip op. at 15 n. 16. This last rationale is completely misguided, as the court itself seems to suspect. In Lopez, the federal government criminalized gun possession within 1,000 feet of a school. However, this was already a crime in some states. Indeed, the defendant in the case, Alfonso Lopez, was in state custody in Texas for committing a state felony, when agents from the federal Bureau of Alcohol, Tobacco, and Firearms took over and charged him with violating the GFSZA. Calve, Anatomy of a Landmark. Similarly, Section(s) 1955 criminalizes what is already criminal in the states. Moreover, it does so explicitly. Operation of the GFSZA did not depend on the existence of state law criminalizing the possession of a gun within 1,000 feet of a school, whereas Section(s) 1955 takes its cue directly from state law. Rather than minimizing unwarranted intrusion in an area traditionally reserved to the states, Section(s) 1955 intrudes only where the states have chosen to legislate, thereby maximizing intrusion. It is as if the Congress in 1955 were saying to the states: "If this kind of gambling is important enough for your state to regulate in some fashion, under your control, then operations involving that same kind of gambling are so important that we, the federal government, can also regulate them in a wholly different fashion, under our control." Some comity! By contrast with the congressional purpose behind Section(s) 1955, consider Congress's purpose in enacting the Interstate Wagering Amendment, at issue in the Third Circuit's Pic-A-State PA case discussed above (see p. 31 n. 12): "Federal laws should continue to limit the proliferation of interstate gambling to preserve the sovereignty of States that do not permit such forms of gambling." 76 F.3d at 1297 (quoting 139 Cong. Rec. S15247). The Interstate Wagering Amendment really does aid in protecting state sovereignty. It prohibited the interstate transmission of information about lottery tickets, protecting the integrity of a state's choice to prohibit gambling from being violated by other states' choices to the contrary. By contrast, criminalizing gambling on the federal level only when a state has chosen to do so does not protect the sovereignty of the states that have not chosen to criminalize that same kind of gambling in any way. And as pointed out above (see pp. 55-56), Section(s) 1955 does not protect the states that have criminalized that gambling activity, either. It interferes with those states' policy choices. Contrary to the court's suggestion, then, Section(s) 1955 is not an example of Congress extending comity to the states.

By intruding upon criminal regulation, an area traditionally reserved to the states, Section(s) 1955 implicates the guarantees of the Tenth Amendment. Lopez, 115 S.Ct. at 1632 (states have "historically been sovereign" in criminal law enforcement). The Tenth Amendment and federalism generally have been reinvigorated of late. See, e.g., New York v. United States, 112 S.Ct. 2408, 2423 (1992) (holding that Congress can regulate interstate commerce directly under the Commerce Clause but cannot regulate state governments' regulation of interstate commerce); Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114, 1118 (1996) (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) (plurality), which held that Congress could displace the states' Eleventh Amendment immunity by exercising its Commerce Clause powers, for "deviat[ing] sharply from [the] Court's established federalism jurisprudence"). Cf. Gary Lawson Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267, 286-92 (1993) (calling for revivification of the Sweeping Clause's (another name for the Necessary and Proper Clause) requirement that the additional means granted to Congress for exercising its enumerated powers be "proper"). This development calls into question New Deal precedent that goes hand in hand with Wickard. See, e.g., Darby, 312 U.S. at 124 (calling the Tenth Amendment a "truism" and nothing "more than declaratory"); Anthony B. Ching, Traveling Down the Unsteady Path: United States v. Lopez, New York v. United States, and the Tenth Amendment 29 Loy. L.A.L. Rev. 99 (discussing the link between New York v. United States and Lopez). The Tenth Amendment has long been interpreted as simply the reverse of the Commerce Clause. It has been thought to deny to Congress no power granted in Article I. If the Commerce Clause is interpreted so broadly that it imposes no limitations on congressional power, then nothing much has really been "reserved to the States, or to the people." Of course, even under this view of the Tenth Amendment, now that the Commerce Clause has been strengthened by Lopez, the Tenth Amendment resurfaces as a stronger limitation on federal power. The majority opinion and the concurring opinion by Judge Kennedy also hint, however, that the Tenth Amendment may be emerging as an independent check on congressional power. The Walls did not challenge Section(s) 1955 on Tenth Amendment grounds, so I did not address the question of whether Section(s) 1955 violates the Tenth Amendment. However, in light of Lopez, the presence of Tenth Amendment concerns further weakens the case to be made for Section(s) 1955's constitutionality under the Commerce Clause. See United States v. Mallory, 884 F. Supp. 496, 498-99 (S.D. Fla. 1995) (making a similar argument on the basis of the Fifth Circuit's Lopez decision).

It is also important to note that the federal courts have been deluged with cases of late. Part of the responsibility for this development has to be laid at the doorstep of the federalization of state crimes by Congress. Thus, Lopez's directive to courts that statutes intruding upon the criminal law should be examined more intensively promotes not only state sovereignty, Lopez, 115 S.Ct. at 1631-32 n. 3, but the quality of justice in the federal courts. United States v. Crawford, 982 F.2d 199, 205 (Merritt, C.J., concurring) ("Under the system of federalism devised by our founders and maintained until recently, federal prosecutors have not sought to displace the state systems of criminal justice in routine cases. This is no longer the case as routine street crime cases . . . are brought in federal court in order to insure longer sentences . . . and mandatory minimum sentenc[es]"); Stephen R. McAllister, Is There a Judicially Enforceable Limit to Congressional Power under the Commerce Clause?, 44 U. Kan. L. Rev. 217 (1996) (arguing that reversing the trend of federalizing crimes is an important subtext in Lopez).

E. Other Courts Have Minimized Lopez

Finally, noting that most courts may have "resisted urgings" to extend Lopez may seem to imply that any attempt to breathe life into the Commerce Clause and the enumeration of powers generally, which even the court acknowledges is designed to prevent an absolute "aggrandizement" of power to the federal government, slip op. at 3, should be thought of as some dark temptation. Moreover, a close look at the now voluminous post-Lopez case law in the lower federal courts reveals that most of the statutes considered in those cases were plainly distinguishable from 1955. Most significantly, cases addressing a challenge to a statute containing a jurisdictional nexus requirement or decided under the channels or instrumentalities headings, as opposed to the "substantial effect on interstate commerce" heading of the Lopez test are inapplicable to this case. This greatly reduces the significance of the court's "nose-counting" argument. The court also makes no effort to analyze thoroughly cases where Lopez challenges have succeeded or cases that drew a dissent. It merely footnotes some of those cases or mentions them in passing. See, e.g., slip op. at 9-10 n. 9.

The court's argument that most courts facing Lopez-based challenges to statutes have rejected them is also given illusory strength by the fact that the majority of these cases involve federal firearm regulation (particularly the ban on felons possessing firearms, 18 U.S.C. §(s) 922(g)(1)) or narcotics regulation. Firearms statutes usually contains jurisdictional nexus requirements, unlike the statute involved in this case. And, generally speaking, the federal narcotics laws regulate an item in interstate commerce. Gambling, the activity regulated by 1955, is a service. Three of the older federal statutes that have also seen a lot of post-Lopez challenges are the federal arson statute, the Hobbs Act, and the Travel Act. All three of these statutes contain jurisdictional nexus requirements, unlike Section(s) 1955.

Three relatively new statutes that have been contested on Commerce Clause grounds are the federal carjacking statute, the Child Support Recovery Act of 1992 ("CSRA"), commonly known as the "Deadbeat Dads" legislation, and FACE. Decisions relating to these statutes do not support the court's "nose-counting" argument because the outcomes of the cases addressing these statutes are more evenly balanced, with the exception of the carjacking statute, which has a jurisdictional nexus requirement. Dissenting opinions are also common in this area. Finally, there is a congeries of cases addressing the constitutionality of miscellaneous statutes. None of these cases address Section(s) 1955.

It must be emphasized that each statute should be considered on its own merits. There is no support for the court's rejecting a challenge to this statute based solely on the count of "early returns" from Lopez challenges to quite different statutes.

IV.

Each of the five rationales given by the court to support its holding that Section(s) 1955 is constitutional possesses some support, usually in pre-Lopez precedent. However, these rationales are now seriously flawed under the analysis used in Lopez. Section 1955 does not regulate conduct that "substantially affects" interstate commerce. Gambling is a commercial activity, but it is not necessarily an interstate commercial activity in all its manifestations. Under Lopez, a statute that is justified only by having a "substantial effect" on interstate commerce must either regulate a commercial activity under a rationale with a logical stopping point with reference to interstate commerce or have a jurisdictional nexus requirement through which courts can impose such a logical stopping point on a case-by-case basis. Section 1955 lacks such a jurisdictional nexus requirement. Congressional findings by their own force cannot substitute either for the lack of a logical stopping point or for a jurisdictional nexus requirement.

If the regulation of intrastate regulation were somehow necessary to the regulation of interstate gambling, in the way that the price of wheat sold in interstate markets was inextricably related to the consumption of homegrown wheat in Wickard or the way that the price of interstate milk was related to the price of intrastate milk in Wrightwood Dairy, Section(s) 1955 would be salvageable. However, the existence of interstate gambling does not depends on the existence of intrastate gambling in the same way. Thus, especially in light of the fact that 1955 intrudes in a peculiar and very targeted way into traditional areas of state authority, I must conclude that Section(s) 1955 is unconstitutional. With regret to Congress, and respect for the court's opinion, I would hold Section(s) 1955 unconstitutional because it is outside the scope of Congress's commerce powers. This is an area of the law now made treacherously uncertain by Lopez, but I think the court in this case is too quick to conclude that Section(s) 1955 should be upheld. One need only look to the Supreme Court's dormant Commerce Clause jurisprudence to see that non-toothless judicial review of cases arising under the Commerce Clause is possible. See Wille, 70 Tul. L. Rev. at 191-95. Lopez should not be confined solely to its own facts. It is a significant milestone in constitutional law.