Federalizing Hate

State criminal laws are supposed to reach violent crimes.  Murder, rape, and robbery are issues for the state criminal justice system, where as only truly national issues like securities fraud and postal fraud are Congress' prerogative.  Or so many people believe.  The truth is that Congress has reached many criminal acts that are indeed local.

For example, under the federal carjacking statute, it's illegal to use violence to steal a car.  Whether or not the car crosses state lines is irrelevant.  It's enough that the car once crossed state lines - even if that happened years ago, when the dealer purchased the vehicle from the manufacturer. 

Under the federal felon-in-possession statute, it's a crime for a person convicted of a felony to possess a gun.  Again, all that matter is whether the gun at some point (no matter how far removed in time) crossed state lines.  Now, Congress wants to federalize assault.

Under proposed legislation (H.R. 2662) (via Dale Carpenter), "Whoever ... willfully causes bodily injury to any person or ... because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person" is guilty of a felony.  How can Congress constitutionally criminalize assault?  Answer: through its commerce power.

H.R. 2662 has two jurisdictional hooks.  First hook: The assault occurs while the defendant or victim is "using a channel, facility, or instrumentality of interstate or foreign commerce."  These terms are broadly defined, and would undoubtedly reach roads (Pierce County v. Guillen) and likely sidewalks paid for with federal funds (Sabri v. United States).

The second jurisdictional hook: The assault "interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct []."

Most people who are the victims of hate crimes are not assaulted while at home.  Usually they are "out and about."  When a person leaves his home, it's usually to engage in some sort of economic activity - go to work, go shopping, to the bar.

As the Court held in Gonzales v. Raich, any economic activity, not matter how trivial, affects interstate commerce.  Thus, for better of worse, Congress does indeed have the power to federalize assault.

That Congress has the power to punish local crimes, if nothing else, is evidence of the constitutional bizarro land we live in today.