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.