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The Commerce Clause and Federal Criminal Law: No “Generalized Federal Police Power” Yet

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The United States Supreme Court’s determination of the constitutionality of the individual mandate provision of the Patient Protection and Affordable Care Act of 2010, 26 U.S.C. § 5000A, in June in the decision of Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) generated much discussion of the Commerce Clause, although the Court refused to uphold the individual mandate as a lawful exercise of Congress’ power to regulate interstate commerce.

Many in the public may not be aware, however, that in the area of criminal law, as with other areas such as healthcare, Congress must have a constitutional basis in order to make criminal law. The Federal Government is a government of limited powers, with all other powers being reserved for the States. The vast majority of criminal activity is within the jurisdiction of the States. Furthermore, Federal jurisdiction must exist in every Federal prosecution. Although it is not an element of a Federal offense, it must be established in every case.

A Federal jurisdictional basis is, in most cases, found in the Commerce Clause, Article 1, Section 8, Clause 3 of the Constitution, which states that Congress may “regulate Commerce … among the several States….” U.S. Const., Art. I, § 8, cl. 3. As Chief Justice Roberts recognized in the majority opinion in Sebelius:

“Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions.”

Congress’ power to criminalize conduct has evolved along with its power to regulate other conduct under the Commerce Clause. Early in our nation’s history, the Supreme Court originally held in that “commerce” meant commercial intercourse between nations or between states. Gibbons v. Ogden, 9 Wheat. 1, 189-190, 6 L.Ed. 23 (1824). Chief Justice John Marshall, who authored the opinion in Gibbons, observed that there were limits on Congress’ power to regulate under the Commerce Clause:

“It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.”

For over a century after Gibbons, the Court’s Commerce Clause cases dealt with State legislation which impacted interstate commerce. Congress’ commerce powers were expanded by Court’s decisions in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837 (1935); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615 (1937); and Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82 (1942). These decisions extended the Commerce power to local or intrastate activity which affected—or could affect—interstate commerce.

Then in 1994, in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), the Court again reaffirmed that Congress’ power to regulate under the Commerce Clause is subject to limits. The majority, headed by former Chief Justice Rehnquist, held that the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), which made it a federal offense to possess a firearm in a school zone exceeded Congress’ authority to regulate commerce. The majority noted that the possession of a gun in a school zone was not an “economic” activity which could substantially affect interstate commerce.

The Court in Lopez refused to recognize a “general federal police power.” It rejected arguments that the “costs” of crime affect interstate commerce, noting that if this were the case, “Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.” The Court in Lopez held that Congress may regulate (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; (3) activities having a substantial relation to interstate commerce. It may regulate activity which affects these three areas even if it is only intrastate in nature. Three years after Lopez, in United States v. Morrison, 529 U.S. 598, 607-19, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000) the Court, in an opinion again by the Chief Justice, similarly struck down the Violence Against Women Act (VAWA) of 1994, 42 U.S.C. § 13981, rejecting the argument that Congress “may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.”

However, five years later, in Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195 (2005), the Court upheld application of the Controlled Substances Act (CSA) of 1970 to growers and users of marijuana for medical purposes, relying on Wickard. The majority opinion, authored by Justice Stevens, held that marijuana grown for local or home use or consumption was subject to regulation because the failure to regulate it would have a substantial affect on the interstate market. The Court also relied Congress’ power under the “Necessary and Proper Clause” to “make all Laws which shall be necessary and proper” for regulating commerce. U.S. Const., Art. I, § 8.

Following Lopez, Morrison and most recently Raich, the current view of Federal criminal jurisdiction under the Commerce Clause is a very broad one. Criminal activity with a clear economic connection—drug crimes, fraud, etc.—is plainly subject to Federal jurisdiction. Lopez and Morrison, however, still stand for the proposition that there remain limits on the Commerce power, and that purely violent local or intrastate crime, or local or intrastate crimes with no direct economic connection, can be beyond Congress’ ability to regulate. The day of a “generalized federal police power” has not yet been reached.