Strengthening Constitutional Self-Government

No Left Turns

The Limits of Congressional Power

WaPo reports that the Senate voted 65-33 in favor of appending a hate crimes bill to the Defense Authorization bill. The bill would make a federal offense crimes committed based on sexual orientation, gender, and disability. WaPo also states that the act "would eliminate a current restriction limiting federal intervention to cases where victims were engaged in federally protected activities, such as voting." Leaving aside the more general question of federalism (i.e., why is this a federal issue rather than a state police power issue?), and the question of public policy (i.e., why is a federal law needed when the typically-cited examples of recent hate crimes have resulted in vigorous prosecution by the states?), I am curious as to what authority Congress believes it has to pass this law. Once the legislaton is unmoored from federally protected activities, I presume Congress is forced to rely on the Commerce Clause for the power to enact this legislation. But the Supreme Court’s decisions in Lopez and Morrison make clear that the Commerce Clause does not give Congress power to regulate criminal activity in the absence of demonstrating that the regulated activity has--surprise--a substantial effect on interstate commerce. I presume the hate crimes rider will die in conference with the House, but if not, look for what should be a slam dunk constitutional challenge.

Discussions - 4 Comments

The text of the bill shows that your concerns are misplaced. The article is misleading, since the bill hews to acknowledged areas of federal jurisdiction such as the channels of interstate commerce (although I admit I’m not an expert in this area). Plus, the crime can only be prosecuted by the feds if the AG certifies that the state doesn’t have jurisdiction and wants the feds to assume it.

I should be interested in reading the text of the bill, but I have my doubts. Most bills have some throw-away line about activity in interstate commerce, even though the laws seek to regulate strictly intrastate commerce. A prime example is the federal partial birth abortion statute, which I have previously argued is unconstitutional under Lopez and Morrison. For the channels argument to work, the crimes of violence would have to be committed using the channels of interstate commerce a la Darby’s use of the channels to distribute the fruits of child labor. Without some elaboration, I don’t see it. But again, I am dealing with limited bandwidth here, so I haven’t seen the bill. If you happen to have a link, however, I would be happy to give it a closer look.

Here’s a link to an XML page with the House version of the bill (H.R. 4204):

The Senate bill is SA 3183.

The "channels" line in the jurisdictional hook of the statutes says: "Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence." This is just the sort of line that was rejected in Lopez, in which the government argued that the guns which would be carried traveled at some point using the channels of interstate commerce. (In fact, Lopez was a perfect example of this theory, because the arrested party was a gun runner.) Because the activity regulated is not economic activity, suggesting that someone who commits a crime of violence may purchase something to facilitate that activity--a gun or a knife or what have you--is simply not going to cut it. The interstate activity is simply too remote relative to the conduct that Congress seeks to regulate. As for the statements about the effects of violence on individual conduct and their effects on interstate commerce, this kind of conclusory congressional finding was flatly rejected in Morrison. As I suggested in my previous post--regardless of how one feels about the policy of these laws (or, to raise another example, federal partial birth abortion statutes)--this should be an open-and-shut case under Supreme Court precedent.

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