Speaking of crime and federalism...

Here is one of the most shocking cases I’ve worked on at the Pacific Legal Foundation.

In 1998, James McFarland robbed four liquor stores in the Fort Worth, Texas area. He netted about $2,300. These crimes carry a penalty of perhaps 5 years in Texas prison. Instead, James McFarland is serving 97 and a half years in the federal pen. The story of how he ended up spending the rest of his life in jail is just part of the saga of how the federal government has exploded beyond the boundaries we set for it in the Constitution.

The Constitution gives Congress the authority to “regulate commerce…between the several states.” This Clause was the founders’ way of breaking down the trade barriers that states had built between themselves. As Randy Barnett has documented, the Commerce Clause only gave Congress the “power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.”

But in the early years of the 20th century, advocates of government intervention decided the Commerce Clause could serve a different role: it could be exploited to give Congress authority over virtually every aspect of life. They therefore transformed the Commerce Clause into just what the founders avoided giving to the federal government: a general police power. The Supreme Court held that the Commerce Clause allowed the feds to regulate activity that took place entirely within states, even if it had only the most remote effect on interstate commerce. In Wickard v. Filburn, the Court held that Congress could prevent a farmer from growing wheat on his own property for his own consumption, because if this activity was “aggregated” (meaning, if everyone did it) it would affect the national economy.

Under this “aggregation principle,” absolutely anything could be regulated, since every action, no matter how private, has some effect on commerce. Congress immediately began exploiting this power. Among the other laws it passed was the Hobbs Act, which makes it illegal to “in any way or degree, obsctruct[ ], delay[ ] or affect commerce or the movement of any article or commodity in commerce by robbery...” Another law they passed was the Gun Free School Zones Act, which made it illegal to possess a firearm within a certain distance of a school.

Then, in 1995, the Supreme Court considered the case of a man named Alfonso Lopez. He was arrested for having a gun near a school campus, and charged under the Gun Free School Zones Act. Lopez argued that Congress had no specified authority to regulate possession of guns on school campuses (which isn’t exactly interstate). He was right, but the federal government argued—I am not making this up—that the Gun Free School Zones Act was a regulation of commerce. Why? Because the kids of today will be the leaders of tomorrow, and to do a good job, they have to have a good education, and to have a good education, they have to be free from guns on campus. Really! The Supreme Court, in a narrow (and controversial) opinion, said this was just too much of a stretch. And in the 2000 Morrison case, they again held that the Commerce Clause doesn’t allow Congress to regulate everything on the aggregation principle—that principle can only be applied if the activity is, by its nature, economic. And having a gun near a school isn’t economic.

But some people have resisted the Lopez and Morrison decisions, among them some of the judges on the Fifth Circuit Court of Appeals. In a case called Hickman, the Fifth Circuit considered whether the “aggregation principle” could be applied to a string of small restaurant robberies, none of which had any substantial effect on interstate commerce. Under Lopez, the answer should have been no, but the Court couldn’t make up its mind—half the judges said yes and half said no. Equal division sets no precedent, so the old law remained the same—that is, Lopez had no real effect in the Fifth Circuit; “aggregation” reigned supreme.

Then came James McFarland’s case. Bound by the Hickman decision that minute effects on interstate commerce were enough to sustain a federal conviction, the court hearing McFarland’s case held that, yes, he could be charged with a Hobbs Act violation, even though his crimes had infinitesimally small effects on interstate commerce. The Court of Appeals heard McFarland’s case en banc—and again split 50/50!

Now, when I say McFarland’s case had immeasurably small effects on interstate commerce, I’m not exaggerating. The dissenting judges explained that

There is no evidence that any of the four stores [McFarland robbed] made any sales or shipments to points or purchasers outside of Texas…no evidence that any of the stores was located at (or near) any transportation facility…or on an interstate highway…. There is no evidence that any of the four robbed stores…had any facilities, property, employees, bank accounts or activities outside of Fort Worth, or was owned, in whole or in part, by any one not a Fort Worth resident…. As to none of the three convenience stores was there any evidence indicating what fraction or percentage of their sales was of or allocable to items which had been manufactured or processed out of Texas, or what was the total dollar amount either of such sales or of all sales at the particular store…. There was no evidence that either the Buy-Low store or the Jeff Store acquired any of their inventory from sources outside of Texas…[or] that any of the robberies resulted in any of the victim stores even slightly delaying any payment to any party as a result of the charged robberies.

Nevertheless, the trial court told the jury that “If you decide that there is any effect at all of [sic] interstate commerce, then that is enough to satisfy this element. The effect can be minimal.” And the Fifth Circuit Court of Appeals split evenly a second time on whether this instruction was the law after Lopez and Morrison. As a result, the law in the Fifth Circuit remained the same: “the particular conduct at issue in any given case need not have a substantial effect upon interstate commerce. Congress is free to act—and the government to apply the law—so long as the regulated activity, in the aggregate, [even if it is not of an economic nature] could reasonably be thought to substantially affect interstate commerce.” That, of course, is absolutely everything.

Then, despite my amicus brief urging the Supreme Court to take the case, it refused. So James McFarland, who ought to be spending about five years, will spend the rest of his life in a federal prison, held by the strong, slender chain of two equally divided Courts of Appeals and a denial of certiorari.

Why such resistance to the Lopez and Morrison decisions? Because liberals are worried that if Congress’ commerce clause authority is restricted, laws like the Endangered Species Act or the Civil Rights Acts might be undermined. Those are understandable concerns (although I think the Civil Rights Act is constitutional under a proper understanding of the 13th and 14th amendments). But as the McFarland case demonstrates all too vividly, the law of the Commerce Clause has gone far beyond its proper scope. That Clause was not written to give Congress authority to regulate land use across the nation, or to regulate the robbery of liquor stores. Today, James McFarland, like so many other people, is paying the price for our bloated regulatory welfare state.

You’ll find the McFarland case at 264 F.3d 557 (5th Cir. 2001), rehearing en banc 311 F.3d 376 (5th Cir. 2002) (and here), cert. denied, 538 U.S. 962 (2003). Hickman is reported at 151 F.3d 446 (5th Cir. 1998), rehearing en banc 179 F.3d 230 (5th Cir. 1999), cert. denied 530 U.S. 1203 (2000). For more, see Gregory T. Broderick, Towards Common Sense in ESA Enforcement: Federal Courts And The  Limits on Administrative Authority and Discretion under The Endangered Species Act, 44 Nat. Resources J. 77 (2004); Kelly D. Miller, The Hobbs Act, The Interstate Commerce Clause, And United States v. McFarland: The Irrational Aggregation of Independent Local Robberies to Sustain Federal Convictions, 76 Tul. L. Rev. 1761 (2002).

--Timothy Sandefur