In United States v. Lopez, 514 U.S. 549 (1995) the Court, for the
first time since 1937, struck down a law because it exceeded the scope
of Congress' commerce power. Understandably, the federal circuits
reacted with caution: no court struck down a criminal statute
immediately post-Lopez. Granted, the federalism gurus of the fightin' Fifth tried.
Three years after Lopez, the Fifth Circuit - which, we'll remember, gave us Lopez - examined constitutional challenges to the Hobbs Act. In United States v. Hickman, 151 F.3d 446, rehearing en banc 179 F.3d 230 (CA5 1999), cert. denied 530 U.S. 1210 (2000) an equally divided en banc panel of the Fifth Circuit affirmed convictions under the Hobbs Act against a Commerce Clause-based attack. Perhaps Lopez was an abberation.
Then in United States v. Morrison,
529 U.S. 598 (2000), the Court held that the civil remedy provision of
the Violence Against Women Act violated the Commerce Clause. And the
next week, in Jones v. United States,
529 U.S. 848 (2000), the Court construed the federal arson statute
narrowly because, applying it to the burning of a private resident,
would raise considerable constitutional problems in light of Lopez. The Court was taking federalism seriously. Did the circuits hear its call? Not for another three years.
Again, the Fifth Circuit heard an attack brought against the Hobbs Act. In United States v. McFarland, 264 F.3d 557 (5th Cir. 2001), rehearing en banc 311 F.3d 376 (5th Cir. 2002), cert. denied,
538 U.S. 962 (2003), the Fifth Circuit again split evenly in rejecting
a challenge that the Hobbs Act exceeded Congress' commerce power.
federal circuit held that a federal criminal law was unconstitutional
under the Commerce Clause until nearly eight years after Lopez, and three years after Morrison. The circuits, it seemed, did not take Lopez or Morrison seriously - at least not seriously enough to implement it.
In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel
reversed a conviction under the federal child pornography law because
the pornographic images were not transported interstate. In McCoy, a mother was
convicted under federal child pornography laws for taking
sexually-explicit pictures of herself and her daughter. The government
failed to prove that McCoy took the photographs for commercial gain, or
that the photographs traveled interstate. Because of that, her prosecution was unconstitutional under the Commerce Clause.
On the heels of McCoy
came United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski,
J.). The issue in Stewart was whether Congress' commerce power allowed
it to criminalize the possession of a home-made machine-gun Stewart had
converted his semi-automatic rifle to fire automatically with parts
that had moved through interstate commerce. Holding that Congress
lacked the power, Judge Kozinski wrote:
Indeed, some of the
machinegun parts did move in interstate commerce. At some level, of
course, everything we own is composed of something that once traveled
in commerce. This cannot mean that everything is subject to federal
regulation under the Commerce Clause, else that constitutional
limitation would be entirely meaningless. As Lopez reminds us,
Congress’s power has limits, and we must be mindful of those limits so
as not to obliterate the distinction between what is national and what
is local and create a completely centralized government.
Id. at 1135
(quotation marks omitted).
In Raich v. Ashcroft, 352 F.3d
1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28,
2004), a 2-1 panel held that the Controlled Substance Act, to the
extent that it criminalized the use of marijuana not purchased nor
obtained interstate, was an unconstitutional exercise of power under
the Commerce Clause. Wrote Judge Pregerson:
possession, and use of marijuana for medicinal purposes and not for
exchange or distribution is not properly characterized as commercial or
economic activity. Lacking sale, exchange or distribution, the activity
does not possess the essential elements of commerce.
Id. at 1229-30. The Ninth Circuit has been silent on crime and federalism issues post-Raich. But in 2004, the Eleventh Circuit spoke.
In United States v. Maxwell, 2004 WL
2191801 (11th Cir., Oct. 1, 2004), a unanimous three-judge panel held
that Congress may not criminalize the intrastate possession of child
pornography, even if the child pornography is kept on items that moved
through interstate commerce. In Maxwell, the defendant kept his child
pornography on diskettes that moved through interstate commerce.
However, the prosecution could not establish that the pictures on the
disks were taken outside of Maxwell's home state - Florida. Thus, the
law was unconstitutional as applied to him. Significantly, the panel
held that it would not apply the aggregate affects test of Wickard v.
Filburn to non-commercial activity.
A couple of weeks ago, in United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005), a different and unanimous three-judge panel affirmed Maxwell's holding, and reviewing for plain error, held that allowing Maxwell-type prosecution would be reversed.
Even though there are over 4,000 federal criminal laws, the circuits
have only given us a five crime and federalism victories in ten years.
It seems that most circuits do not take Lopez and Morrison seriously.