The limits of the commerce clause—a blast from the past

Author: Timothy Sandefur

The three most famous of the Supreme Court’s recent cases on the meaning of the commerce clause are Lopez, Morrison, and Raich, but in 2000, the Court decided a case called Jones v. United States, a criminal case in which a defendant was charged with violating a federal law against arson. The question was whether Congress had the power to punish that arson, given that there was no serious connection to interstate commerce, and the unanimous Court—in a decision by that radical right-winger, Ruth Bader Ginsburg—found that this exceeded Congress’ commerce clause authority.

During the oral argument, there was a very interesting discussion over the limits on Congress’ power, and it’s interesting to compare that discussion with the flippant attitude being used in discussions regarding ObamaCare (for example, the New York Times’ superficial partisanship, discussed here.) Now, Jones was not a constitutional case, really—it was about the meaning of a federal statute—but the discussion reveals much about the status of contemporary Congressional power. (I’ve edited it heavily; the original is here, along with audio):

Justice Souter: …it seems to me that on your argument, if…if the jurisdictional element is sufficient to get the privately owned house, then the jurisdictional element does not act as a limitation. And…and I don't, therefore, know why it would be in there.

Mr. Dreeben [for the United States]: Well, I do think that the jurisdictional element acts as a…a limitation, Justice Souter, although it may not act as a limitation that is narrower than the constitutional power of Congress. But it does require that in each case the United States establish that there is an effect on interstate commerce.

Justice Scalia: Can you give us a hypothetical where…where that wouldn't exist? I mean, he mentioned shoplifting. I assume you think the Federal Government can make all shoplifting a Federal crime.

Mr. Dreeben: Well, I think that if the…that if the Federal Government made shoplifting from businesses that do business in interstate commerce a Federal crime, it could do so.

Justice Scalia: Oh, what about… what about theft from a private home? If you say that burning a private home affects interstate commerce, why wouldn't, you know, theft from a private homeowner affect interstate commerce?

Mr. Dreeben: Well…where, as here, the Government is able to show that there is an out-of-state mortgage company…

Justice Scalia: So, theft from a home you're willing to concede could not be made a Federal crime.

Mr. Dreeben: No, I wouldn't be willing to concede.

Justice Scalia: Well, give me something you are willing to concede…. Just something, one…one little thing…. I mean, the Constitution meant something when it…when it limited the Federal Government to matters involving interstate commerce. And we know that they did not intend the Federal Government to have general criminal jurisdiction.

Mr. Dreeben: Well, I think, Justice Scalia…

Justice Scalia: So, what is it that's excluded?

Mr. Dreeben: …The Court recognized in Lopez that there is power under the Commerce Clause to reach intrastate activities that affect interstate commerce, and that it will be a matter of degree and a matter of characterization in each case to determine whether the particular statute does satisfy those requirements.

Justice Scalia: Give us an example of one that doesn't….

Mr. Dreeben: I think, Justice Scalia, a…a statute that sought to regulate all crime without a jurisdictional element and without any particularized reason by Congress…

Justice Scalia: I mean, they're going to put in a jurisdictional element. You know, anyone who…who steals from a house that…property that has…that has been transported in interstate commerce. Do you think that would suffice?

Mr. Dreeben: I don't think that it necessarily would suffice, Justice Scalia, because the nexus between the interstate commercial activity and the crime is not as close as it is in a case like this one.

Justice Kennedy: Well, but in a burglary statute, if there's a Federal burglary statute, you would come with statistics as to how much insurance companies have to pay every year in the aggregate for household burglaries, and you'd make…you'd make the submission that this is an effect on interstate commerce that's measurable.

Mr. Dreeben: Well, I would probably lose that case under Lopez because the Court made clear that merely pointing to the…the costs of crime is not sufficient….

Justice Kennedy: But you…in any…any burglary that's insured, other than the deductible, if it's a…there's going to be payment from an interstate insurer…..

Justice Souter: …may I get back to my…my original point? And that is, what is being excluded under this statute in the arson case? And it sounds to me, from what you've said, that it would be consistent with your argument to say that the statute would not cover arson of a house, which was built by the owner without the use of borrowed money and was not insured and was heated with wood cut on the property…[Laughter] but it wouldn't exclude much more than that, would it?

Mr. Dreeben: Well, I will give away that case. [Laughter] I…I don't…

Justice Souter: A wise concession, but…. But really, would it…would it exclude much more?

Mr. Dreeben: Yes, I do acknowledge that under our approach to the statute, its coverage is broad, and I think that that was consistent with Congress' intent…because the legislative history makes clear that Congress selected the affecting commerce language that it used in this jurisdictional element precisely so that it could have a way of indicating to this Court that it wished to go to the limits of its Commerce Clause authority…. What the record in the legislative history shows is that there were… were hearings on the bill that brought to the attention of Congressmen that there were burnings of churches and police stations and other buildings that were not used for business purposes, and that legislators objected to the restriction of a bill that would deny the Federal Government the ability to investigate and prosecute cases involving those kinds…

Justice Scalia: You think it covers the burning of a church?

Mr. Dreeben: Yes…. The legislative history shows that because churches were not covered under the restriction in the bill that said it covers property used for business purposes, Congress deleted the language that said for business purposes. That is not part of the enacted bill, and it was done deliberately in order to allow this bill to reach to the limits of Federal power.

Chief Justice Rehnquist: What is the connection with a church? I mean, what if the hymnals cross State lines? Would that be enough?

Mr. Dreeben: It could be, but that is not typically the sort of connection that we have relied on in prosecuting cases like that.

Justice O'Connor: Well, you'd say the church got heat from natural gas….

Justice Scalia: And you think that…that drawing down an infinitesimal overall amount of natural gas causes the building, within the meaning that Congress had in mind, to be used in an activity affecting commerce?

Mr. Dreeben: Yes, I do, Justice Scalia, but we have three different theories on how this building is used in an activity affecting commerce. The natural gas theory is one of them….

Justice Ginsburg: The same would go for electricity, for coal?

Mr. Dreeben: Correct.

Justice Ginsburg: For anything?

Mr. Dreeben: Correct….

Chief Justice Rehnquist: How about milk shipped in interstate commerce and drunk by people who live in the house? Would you say that the house…that the house uses milk?

Mr. Dreeben: No. I think that the individuals within the house would use milk.

Chief Justice Rehnquist: Well, and the individuals in the house use the heat, too.

Mr. Dreeben: Yes, they do. And I think that in…in focusing on the interstate gas connection, there are two ways of looking at it. One is that the gas company uses the property in its interstate business by shipping gas to the house and collecting revenue from the residents or owners. The other way of looking at it is that the activities of the individuals within the house result in the consumption of the natural gas….

Justice Stevens: May I… may I suggest that if we looked at the word vehicle, we might get some enlightenment on this issue? Because you would… you would argue a vehicle is used in interstate commerce if it drives across the State line and so forth. But you wouldn't argue that it's a vehicle used in an activity affecting commerce because it burns gas, would you?

Mr. Dreeben: Well, I think I would, Justice Stevens.

Justice Stevens: Oh, you would. That's the analogy to the… to your utility…

Mr. Dreeben: That… hat's right.

Justice Stevens: Okay.

Mr. Dreeben: And that is why that theory, as is evident, does have the broadest reach to it. Now, the other two…

Justice Ginsburg: Is there…on any theory, is there any car that would be excluded on your definition? You gave the… he remote example of a building that might, but is there any vehicle?

Mr. Dreeben: I think that the gas theory would cover all…all vehicles. If the Court disagreed with the gas theory, then cars that aren't subject to outstanding liens or interstate insurance would not be covered. Cars that…that are subject to outstanding liens and interstate…

Justice Ginsburg: What about…

Justice Souter: Fall back to bicycles.

Justice Ginsburg: that they were certainly constructed and manufactured… you could have a home that was built locally, but for most automobiles that would not be the case.

Mr. Dreeben: That's true, but this statute doesn't base jurisdiction on the fact that the home was manufactured with out-of-state parts or out-of-state materials, and it doesn't depend on the fact that the car was manufactured with out-of-state parts or materials. It does look to the uses of the property in question….

Justice Kennedy: Does it seem to you that the categories we've been discussing are really somewhat remote from what the Framers sought to accomplish when they set up the Federal system, which is to allow people to realize that there's a Government that's not remote from them that they can control? Here the sentence was for 30 years. It's not clear in the record why this…this crime happened, but the homeowner himself argued before the sentencing court, as I understand it, that the sentence was too…too strong. And yet, this very remote Federal sentencing scheme comes into play in what is ordinarily a common law crime. And none of the responses you've given, perhaps none of the questions we have asked, seemed to recognize that there is a strong, local interest here that's just simply being ignored….

Mr. Dreeben: I think under anybody's view of Commerce Clause authority, Justice Scalia, there is a substantial ability of the Federal Government to regulate what would have been viewed in 1789 as local criminal activity.