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How the Justice Department is using the Commerce Clause to criminalize forcible beard cutting as a federal hate crime

In late 2011 an intra-sect feud within an Amish community in eastern Ohio became violent as followers of Samuel Mullet Sr. assaulted several of their co-religionists because they were “Amish hypocrites.” The assailants forcibly cut the beards and hair of their victims to punish them for their alleged transgressions.  The attacks were violent and served their purpose of humiliating the victims, but were they a federal crime?  The Department of Justice thinks so, and a federal district court agreed.  On Thursday the federal government’s arguments will be tested as  the U.S. Court of Appeals for the Sixth Circuit will hear oral arguments in the defendants appeal in Miller v. United States.

Here’s some background.  Mullet and his compatriots were prosecuted under 18 U.S.C. § 249, the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009.  Specifically, the federal government alleged that the defendants “willfully caused bodily injury to the victims by restraining and assaulting them and forcibly cutting off their beards (and in some cases also their head hair) because of their religion.”  This was the first time the hate crimes law was used to prosecute religiously motivated violence, and the Justice Department invested heavily in securing convictions.  But there’s a twist.  Although the federal government alleges the prosecution is necessary to protect the victims’ civil rights and religious freedom, the basis for federal jurisdiction is not any of the Reconstruction Amendments (which might apply in cases of racially motivated violence) but the Commerce Clause.  Therein lies the problem.

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.  The U.S. District Court for the Northern District of Ohio accepted this argument without much of a second thought.

The statute requires the Government to allege and prove beyond a reasonable doubt a jurisdictional nexus, establishing an explicit connection between the prohibited conduct and interstate commerce. The statute expressly criminalizes conduct in which the defendant used a weapon that traveled in interstate commerce or an instrumentality of interstate commerce. Here, the superseding indictment alleges that the Defendants used scissors and hair clippers, which had traveled from out of state into Ohio, to carry out the assault, in compliance with the jurisdictional element spelled out in section 249(a)(2)(B)(iii) of the statute. The superseding indictment also alleges that the defendants lured a victim by using the mail system and used motor vehicles to facilitate each assault, establishing the jurisdictional element at section 249(a)(2)(B)(ii). Accordingly, under well-established case law, the Hate Crimes Prevention Act is constitutional on its face and as applied here.

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” — whether it be a gun, knife, garrotte or, as in this case, battery-operated Wahl hair clippers — 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. Indeed the federal government has been clear in this case that this prosecution has nothing whatsoever to do with commerce but about protecting individuals’ religious beliefs.

The law here only covers so-called “hate crimes,” but under the government’s theory of the case, Congress could enact an omnibus anti-violent crime law that criminalizes any and all violent acts in which (to quote 18 U.S.C. § 249) “the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce.”  But there is no reason to limit this power to weapons or violent acts. Under the government’s theory of jurisdiction, once any item specified in a relevant statute has crossed state lines it may provide the basis for government regulation under the Commerce Clause.  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.

The Supreme Court has time and again disavowed any and all theories of federal jurisdiction that would entail so far-reaching a power, as this would be tantamount to a plenary police power of the sort retained by the states but withheld from the federal government.   Just this term, in Bond v. United Statesthe Chief Justice reiterated that the federal government has no such police power; “For nearly two centuries it has been ‘clear’ that, lacking a police power, ‘Congress cannot punish felonies generally,'” he wrote (citation omitted).  Yet if the use of an item that, at some point in the past, has crossed state lines is all that is necessary to confer federal authority, the federal government can, in fact, “punish felonies generally” if it so chooses.  Such an understanding of federal power is incompatible with the doctrine of enumerated powers and runs counter to the principles articulated by the Court in Bond, as well as in LopezMorrison, and NFIB, among other recent decisions of the Court.

The government argues that the hate crimes statute merely takes advantage of the theory of commerce clause authority articulated in United States v. Lopez, in which the Court explained that Congress may regulate the channels of interstate commerce, instrumentalities of and persons and things in interstate commerce, and those activities that substantially affect interstate commerce.  Lopez did say as much, but it is important to recognize that this is an articulation of Congress’s power to regulate commerce, as supplemented by the power to enact those laws “necessary and proper” to carry into execution the regulation of commerce.  Insofar as the federal government seeks to regulate activities with a minimal relationship to commerce for some purpose other than to regulate commerce among the states, such regulation is not “necessary and proper” to the regulation of commerce.  Rather it is the assertion of a “great substantive and independent power” of the sort expressly rejected just two years ago in NFIB.

The government’s strongest argument, accepted by the district court, is that because the hate crimes act contains an explicit jurisdictional element, this “suffices to ensure, through a case-by-case inquiry, that the [criminalized activity] in question affects interstate commerce.” Yet the jurisdictional element of this statute is written in such broad terms that many activities satisfy the relevant statutory elements without having any meaningful relationship to commerce.  Showing that a criminal act was performed with hair clippers that, at some point in time, crossed state lines does not show that the act in question “affects interstate commerce,” let alone that it has the “substantial effect” required by LopezMorrison, et al. To accept that such a jurisdictional element necessarily preserves any statutory prohibition to which it is attached makes a mockery of the notion of limited and enumerated powers.

What should the Sixth Circuit do?  That depends on whether it approaches the defendants’ claims as presenting facial or as-applied challenges to the hate crimes law.  In all of its recent commerce clause cases, the Supreme Court has considered the class of activities subject to regulation and if that class of activities was not itself, as a class, sufficiently related to interstate commerce, the statute has been struck down on its face.  Thus, in Lopez, the Gun-Free School Zones Act was invalidated because the activity subject to regulation — possession of a gun near a school — was not sufficiently related to commerce. That Alfonso Lopez was himself engaged in commercial activity (facilitating a gun sale) was irrelevant because the commercial nature of his conduct was not what subjected him to the federal prohibition.  The GFSZA, however, did not contain a jurisdictional element. (I elaborated on this point in the context of the individual mandate litigation here.)

Were the Sixth Circuit to follow the Supreme Court’s approach in Lopez, and applied the statute by its express terms, it would have to conclude that the class of activities criminalized here, like the class regulated in the GFSZA, extends well beyond those activities which substantially affect interstate commerce.  This means the statute exceeds the scope of the commerce clause and would counsel invalidating the statute on its face, even though some Sixth Circuit precedent would appear to foreclose such a move.  I am inclined to think this is the proper approach, but I do not expect the Sixth Circuit to make such a move.

The Supreme Court’s recent opinion in Bond v. United States and the hate crimes act’s inclusion of a jurisdictional element 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.

The Government’s reading of section 229 would alter sensitive federal-state relationships, convert an astonishing amount of traditionally local criminal conduct into a matter for federal enforcement, and involve a substantial extension of federal police resources.

In Bond the Court feared that if it upheld Ms. Bond’s conviction “hardly a poisoning in th eland will fall outside the federal statute’s domain.”  Here the consequences of upholding the convictions of Mullet, et al., and endorsing the federal government’s theory of jurisdiction, could be far more severe.

In Bond the Court rejected the federal government’s interpretation of the statute at issue because “it would dramatically intrude upon traditional state criminal jurisdiction” and the Court avoids “reading statutes to have such reach in the absence of a clear indication that they do.”  Although the plain text of the statute appeared to reach Ms. Bond’s conduct, the Court found the statute to be ambiguous.  The statute’s ambiguity was not due to any lack of clarity in legislative drafting, however, but due to “the improbably broad reach” of the statutory text if applied in a straightforward manner, “the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose.”  Ms. Bond’s conduct had nothing to do with controlling chemical weapons just as the Mullet clan’s conduct had nothing to do with commerce.

The approach adopted in Bond may be less doctrinally satisfying than a direct confrontation of the statute. (Justices Scalia, Thomas and Alito certainly thought so.)  But such an approach, which endorses stretching statutory language where necessary to preserve a statute’s constitutionality, is a fixture of the Supreme Court’s jurisprudence. (See, e.g.NFIB.)  If anything, the hate crimes act is more susceptible to a narrowing construction that the law at issue in Bond (or, for that matter, the PPACA).  The inclusion of a jurisdictional element demonstrates that Congress recognized that it could not criminalize all hate crimes but only those with a sufficient nexus to interstate commerce to come within the scope of federal power.  Even though the jurisdictional element is phrased in broad terms, its purpose is to ” ensure, through a case-by-case inquiry” that only activities with a sufficient nexus to interstate commerce are criminalized.  Thus in cases like Jones v. United States the Supreme Court has interpreted jurisdictional elements narrowly to ensure that federal criminal law does not overstep its proper bounds.  Adopting a similar approach in Miller would enable the Sixth Circuit to restrain a clear example of federal overreach without invalidating federal law.

Note that there are other potentially dispositive issues in this case that I have not addressed in this post, including challenges to the jury instructions and an intriguing argument that classifying intra-sect violence as a hate crime motivated by the victim’s religion violates the Religious Freedom Restoration Act.  Time permitting I’ll try and do a post on the RFRA claim and review this Thursday’s oral argument.  For more on this case, see this article by Jacob Sullum.