Congressional overreaching

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Congress is exceeding its Commerce Clause powers again.

This time, it’s S. 909, the “Matthew Shepard Hate Crimes Prevention Act,” which was recently passed by the Senate.

Congress actually invokes two sources of authority for the law: to guarantee citizens the rights secured by the Fourteenth Amendment; and to regulate interstate commerce.

One of Congress’ findings is that “eliminating racially-motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude.”

No one’s going to argue with that. But the law doesn’t just deal with violence based on race. It also makes it a federal crime to commit a battery because of the victim’s “religion, national origin, gender, sexual orientation, gender identity, or disability.”

Accordingly, Congress invokes another source of authority – the Commerce Clause: “Such violence is committed using articles that have traveled in interstate commerce.”

Keep in mind that every “article” in this country, from a paper clip or a toothbrush to an airplane or a machinegun, has traveled in interstate commerce at some point. If that is a sufficient constitutional basis for the law under the Commerce Clause, then any garden variety battery could be made into a federal crime.

In an attempt to survive a Commerce Clause challenge, the law contains what’s called a “jurisdictional element” – a connection to interstate commerce.

One of the ways that the government can meet the jurisdictional element is to show that the victim has traveled across a state line. So, if the victim happens to be on vacation out-of-state when the attack occurs, it’s a federal crime, but if he’s in his home town, this element would not be met.

The government could also meet this element if it were to prove that “the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce.”

This means that if I hit someone over the head with a beer bottle (not because of race; just a barroom brawl over a woman or a billiards game), I could be charged in federal court (even if the beer is a local microbrew, the bottle likely traveled in interstate commerce).

Furthermore, even barroom brawls involving no weapons could be covered, because another way to meet the jurisdictional element is if the victim was “using a channel, facility, or instrumentality of interstate or foreign commerce.”

If the assault occurs in a tavern selling liquor that has traveled in interstate commerce, that would satisfy this element.

What does all this mean? If this statute is enacted and survives a constitutional challenge, the precedent it would establish would be broad enough to support federal criminalization of any barroom brawl, whatever the motive, even if no weapon is used.

Like the gun-free school zone act struck down by the U.S. Supreme Court in U.S. v. Lopez, 514 U.S. 549 (1995), this bill “is a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.”

Violent crime motivated by animus based on race, religion, sexual orientation, etc., should be prosecuted vigorously, and such animus is properly considered an aggravating factor. But prosecutors already put a very high priority on prosecuting hate crimes, and our judges already treat such animus as a factor warranting longer sentences. So even if this bill was constitutional, it is still unnecessary.