Attempting to use the Commerce Power for Everything

The Sixth Circuit hears oral argument today in U.S. v. Miller, the Amish beard-cutting case.  Jonathan Adler has this extended discussion: How the Justice Department is using the Commerce Clause to criminalize forcible beard cutting as a federal hate crime.  As he explains:

According to the Justice Department, the defendants crimes are subject to federal prosecution under the hate crimes statute because the shears and scissors used in the assaults had previously crossed state lines because they were manufactured in another state and because the defendants rode in cars to the scenes of the attacks.  …

Pause for a minute and consider the implications of the government’s argument as upheld by the district court.  Under the Justice Department’s theory of jurisdiction, any time an individual rides in a car to or from the scene of a crime, that criminal act may be subject to federal prosecution, provided Congress has enacted a relevant statute.  Under the government’s theory once a potential weapon has “traveled in interstate commerce” … any violent act for which it is used may become a federal crime, whether or not the criminalized conduct substantially has any genuine relationship to commerce (let alone the substantial relationship the Supreme Court’s decisions require) or whether the relevant statute regulates economic activity. …

… In other words, the government’s theory of the case implies a nascent federal police power that follows any and all items that have, in the government’s words, “traveled in interstate commerce.”  This is a power without meaningful limits.

I previously wrote about this case herehere and  here.  As noted in the post at the last link, Michael Rosman and the Center for Individual Rights formerly http://www.cir-usa.org/index.html are representing Miller in the appeal.  Here is the government’s response brief formerly , and here is the defendant’s reply formerly http://www.cir-usa.org/legal_docs/miller_reply_br.pdf.  (Thanks to Michael Rosman for the links).

The case is potentially a very big deal for federalism.  As the briefs make clear, the government really is claiming that Congress’ commerce power allows it to regulate any use of any article that at any point traveled in interstate commerce, and (apparently, although this is a little less clear) any activity that invovles traveling by car.  As the defendant’s reply begins:

In her opening brief … Kathryn Miller pointed out that the Government’s theory of national power would lead to the conclusion that Congress could set speed limits through local towns and enact other local traffic regulations; pass laws on the use of bicycle helmets; criminalize local petty crimes in which some car, bicycle, bus, knapsack, purse, or other “device” capable of transporting someone or something over a state line (regardless of whether it ever had) was used; and regulate the use of any object that ever had crossed a state or national boundary and the conduct of any person that had ever crossed a state line in their lives.

Remarkably, the Government disputes none of this. To the contrary. It argues for a national power just that broad, stating only that “there is a difference between the potential scope of Congress’s power and the exercise of that power.” Brief of the United States (“Govt. Br.”) 99-100. In short, the Government asks this Court to take comfort in, as Justice O’Connor famously put it, Congress’s “underdeveloped capacity for self-restraint.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 588 (1985) (O’Connor, J., dissenting).

Professor Adler suggests a the possibility of a narrow holding for the defense:

The Supreme Court’s recent opinion in Bond v. United States and the hate crimes act’s inclusion of a jurisdictional element [that the acts must "affect interstate commerce"] suggest another approach the Sixth Circuit could take.  In Bond, as here, the federal statute at issue applied to a wide range of conduct traditionally subject to control under state criminal law.  In addition, the criminal defendant’s specific conduct was not the sort that would normally justify federal action. As a consequence, not a single justice was willing to uphold the conviction. Yet rather than invalidate the statute, the majority read it narrowly.  As the Chief Justice explained:

Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach.

To endorse the government’s reading of the statute at issue would be to sacrifice principles of federalism and enumerated powers.

I agree, and I’d add that this approach would make Bond appear a more important holding that many commentators have suggested.

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