1 Richard L. McLeese, Federal Criminal Jurisdiction, Ill. Inst. for Continuing Legal Educ. 1, 2–3 (1997).
2 U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
3 See United States v. Morrison, 120 S. Ct. 1740, 1748 (2000); McLeese, supra note 1, at 3 (citing United States v. Lopez, 514 U.S. 549, 566 (1995)).
4 See U.S. Const. art. I, § 8, cl. 3. (“The Congress shall have Power . . . to regulate commerce with foreign nations, and among the several States and with the Indian Tribes.”).
5 See id.; U.S. Const. art. I, § 8, cl. 18; 18 U.S.C. § 1951 (1994). Congress has the power to “make all laws which shall be necessary and proper for carrying into execution” this enumerated power. U.S. Const. art. I, § 8, cl. 18.
6 See Morrison, 120 S.Ct. at 1749; Lopez, 514 U.S. at 558–59.
7 See Morrison, 120 S.Ct. at 1749; Lopez, 514 U.S. at 558.
8 See id.
9 See Morrison, 120 S.Ct. at 1749; Lopez, 514 U.S. at 559–60.
10 See, e.g., Deborah Jones Merritt, COMMERCE!, 94 Mich. L. Rev. 674, 682 (1995); McLeese, supra note 1, at 7.
11 See Lopez, 514 U.S. at 551.
12 See id. at 557.
13 See Andrew St. Laurent, Reconstituting United States v. Lopez: Another Look at Federal Criminal Law, 31 Colum. J.L. & Soc. Probs. 61, 117 (1997); Brandon Bigelow, Note, The Commerce Clause and Criminal Law, 41 B.C. L. Rev. 913 (2000).
14 See Merritt, supra note 10, at 676, 712.
15 See St. Laurent, supra note 13, at 75.
16 See 18 U.S.C. § 1951 (1994); see also infra notes 93–95 and accompanying text.
17 18 U.S.C. § 1951.
18 See id.
19 See id.
20 See infra notes 93–95 and accompanying text.
21 See infra notes 96–157 and accompanying text.
22 See infra notes 158–180 and accompanying text.
23 See infra notes 27–55 and accompanying text.
24 See infra notes 56–92 and accompanying text.
25 See infra notes 93–157 and accompanying text.
26 See infra notes 158–214 and accompanying text.
27 See Lopez, 514 U.S. at 551.
28 See id.
29 See id.; 18 U.S.C. § 922 (q)(1)(A) (Supp. V 1998).
30 See Lopez, 514 U.S. at 552.
31 See id.
32 See Lopez, 514 U.S. at 551.
33 See id. at 559. The majority in Lopez held that the statute could not be justified as a regulation by which Congress sought to protect an instrumentality of interstate commerce or an article or person in interstate commerce (second prong). See id. at 559. However, in his dissent, Justice Stevens argued that guns are both articles of commerce and articles that can be used to restrain commerce, and therefore, under the second prong, Congress has the power to regulate possession of handguns. See id. at 602–03 (Stevens, J., dissenting).
34 See Lopez, 514 U.S. at 551, 559–60.
35 See id. at 561.
36 See id; see also Morrison, 120 S.Ct. at 1750–51 (stating that while the Court need not at the present time adopt a categorical rule against aggregating the effects of any noneconomic activity, the Court has thus far upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature). In Morrison, the Court struck down the federal civil remedy provision of the Violence Against Women Act, 42 U.S.C. § 13981 (1994), because Congress lacked the authority under both the Commerce Clause and Section Five of the Fourteenth Amendment. See Morrison, 120 S. Ct. at 1799.
37 See id. at 558 (citation omitted).
38 See Lopez, 514 U.S. at 560, 566. But see Lopez, 514 U.S. at 619 (Breyer, J., dissenting) (arguing that Congress could rationally conclude that schools fall on the commercial side of the line).
39 See Lopez, 514 U.S. at 562–63.
40 See id. In Morrison, however, the Court stated that congressional findings alone are not sufficient to sustain the constitutionality of Commerce Clause legislation and that the Court must ultimately determine whether particular operations affect interstate commerce sufficiently to come under Congress’s Commerce Clause power. See 120 S. Ct. at 1752.
41 See id. at 561.
42 See id. at 561 n.3. Although Congress has the power under the Commerce Clause to regulate commercial activities, and this power will at times affect areas of state sovereignty, that authority does not include the power to take over entire areas of traditional state concern. See Lopez, 514 U.S. at 565–66; see also Lopez, 514 U.S. at 577 (Kennedy, J., concurring). For a historical review of the origin and development of state and federal criminal law, see Bigelow, supra note 13, at 913.
43 See Lopez, 514 U.S. at 564, 567–68. The Court mentioned family law and criminal law as examples of areas of traditional state sovereignty. See id. at 564.
44 See id. at 567–68.
45 See id. at 561.
46 See id. at 564.
47 See id.
48 See Lopez, 514 U.S. at 561–62. As one commentator put it, by failing to require federal prosecutors to satisfy any jurisdictional element, Congress almost dared the Court to find the statute unconstitutional. See Merritt, supra note 10, at 696. It is not clear, however, that statutes that regulate a commercial activity having a “substantial effect” on commerce require such an explicit jurisdictional element. See St. Laurent, supra note 13, at 83–84. Instead, the requirements of Lopez may be read disjunctively; either a regulation of commercial activity, or a jurisdictional element requiring case-by-case inquiry. See id.
49 See Lopez, 514 U.S. at 561–62. An example of a jurisdictional element is the requirement in the Hobbs Act that the extortion or robbery “in any way or degree obstructs, delays, or affects commerce.” 18 U.S.C. § 1951 (1994).
50 See Lopez, 514 U.S. at 561.
51 See id. at 559–62.
52 See id. at 559–61.
53 See supra notes 39–47 and accompanying text.
54 See Lopez, 514 U.S. at 561–62.
55 See id. at 567–68.
56 See 18 U.S.C. § 1951 (1994).
57 See id.; United States v. Green, 350 U.S. 415, 416–17 (1956).
58 See United States v. Staszcuk, 517 F.2d 53, 56–57 (7th Cir. 1975) (en banc).
59 See United States v. Local 807, 118 F.2d 684, 687–88 (2d Cir. 1941) aff’d, United States v. Local 807, 315 U.S. 521, 539 (1942).
60 See Local 807, 315 U.S. at 528–29, citing 78 Cong. Rec. 457, (1934); See id. (citing S. Res. 74, 73rd Cong. (1934) (enacted)).
61 See S. Rep. No. 75–1189, at 3 (1935).
62 See id. at 9.
63 See id. at 21–23.
64 See Local 807, 315 U.S. at 529 (citing 78 Cong. Rec. 5859 (1934)).
65 See id. at 529–30 (citing H.R. Rep. No. 73-1833, at 2 (1934)).
66 See id. (citing S. Rep. No. 73-1440, at 1 (1934)).
67 See Local 807, 315 U.S. at 530.
68 See H.R. Rep. No. 78–66, at 1–2 (1943); Local 807, 315 U.S. at 521.
69 See Local 807, 315 U.S. at 531.
70 See id. The Court in Local 807 held that labor union activities were excluded from prosecution under the Hobbs Act although the defendants had been found guilty of committing highway robberies and, at a rate of 1000 per day, such robberies were having a considerable impact on interstate commerce. See Local 807, 315 U.S. at 530.
71 See 91 Cong. Rec. 11,912 (1945).
72 See id. at 908 (statement by Mr. Vursell). Mr. Jennings stated “we are just undertaking to draw a straight line . . . between the right which belongs to the man on his legitimate mission to market and the misconduct of a robber . . . on a public thoroughfare of this country.” See id. at 912. Mr. Rivers asserted “no longer will they obstruct and retard . . . the orderly transportation of persons and property in interstate or foreign commerce.” See id. at 917.
73 See id. at 912 (statement by Mr. Hobbs).
74 See supra notes 59–73 and accompanying text; see also St. Laurent, supra note 13, at 62.
75 See McCleese, supra note 1 at 14–15, (citing Dep’t of Justice, United States Attorney’s Manual, tit. 9, § 131.040.
76 See Green, 350 U.S. at 420–21.
77 See id. at 416.
78 See id.
79 See id. at 420–21.
80 See id. at 421.
81 See United States v. Staszcuk, 517 F.2d 53, 58 (7th. Cir. 1975) (en banc).
82 See id. at 56.
83 See id.
84 See id. at 55.
85 See id. at 56, 59.
86 See Staszcuk, 517 F.2d at 58.
87 See id.
88 See id. at 59.
89 See id. at 59, 60.
90 See St. Laurent, supra note 13, at 62.
91 See, e.g., United States v. Wiseman, 172 F.3d 1196, 1201 (10th Cir. 1999), cert. denied, 120 S. Ct. 211 (1999); United States v. Alfonso, 143 F.3d 772, 773–74 (2d Cir. 1998); United States v. Romero, 122 F.3d 1334, 1335–36 (10th Cir. 1997), cert. denied, 523 U.S. 1025 (1998).
92 See St. Laurent, supra note 13, at 62. “Non-subject matter specific” statutes regulate a broad range of conduct and stand in contrast to “subject matter specific” statutes that govern a specific market or property that Congress wishes to protect. See id.; United States v. Hickman, 179 F.3d 230, 235–36 (5th Cir. 1999) (en banc) (Higginbotham, J., dissenting), cert. denied, 120 S. Ct. 2195 (2000).
93 See infra notes 96–155 and accompanying text; St. Laurent, supra note 13, at 63, 88.
94 See infra notes 96–155 and accompanying text; St. Laurent, supra note 13, at 63, 88.
95 See St. Laurent, supra note 13, at 84–85, 87–88, 92.
96 See United States v. Arena, 180 F.3d 380, 385 (2d Cir. 1999).
97 See id. at 385–86. Butyric acid is a hazardous liquid that emits a powerful, rancid odor. See id. at 385.
98 See id. at 387, 388.
99 See id. at 391.
100 See id.
101 See Arena, 180 F.3d at 389–90 (citation omitted).
102 See id. (quotation omitted).
103 See 57 F.3d 553, 555 (7th Cir. 1995).
104 See id. at 555, 558.
105 See id. at 558.
106 See id.
107 See id. The “depletion of assets theory” suggests that a payment of a bribe depletes the assets of the person paying the bribe. Accordingly, the payer has fewer assets to purchase goods in interstate commerce. Thus, under the theory, any bribe paid by an individual who has previously purchased items in interstate commerce affects interstate commerce and federal jurisdiction is appropriate. See id.
108 See Stillo, 57 F.3d at 558 n.2.
109 See 94 F.3d 1237, 1239–40 (9th Cir. 1996).
110 See id. at 1240.
111 See id. at 1242.
112 See id. at 1241.
113 See id. at 1242.
114 See Atcheson, 94 F.3d at 1242–43.
115 See id.
116 See 172 F.3d at 1201, 1220.
117 See id. at 1201–03.
118 See id. at 1214.
119 See id.
120 See id.
121 See Wiseman, 172 F.3d at 1214–15.
122 See id. at 1220.
123 See 108 F.3d 1460, 1463 (D.C. Cir. 1997).
124 See id. at 1468.
125 See id. at 1464. The government acknowledged that it might have pled Hobbs Act jurisdiction based on Congress’s plenary powers over the District of Columbia, but did not seek affirmance on this rationale because the jury was not instructed accordingly. See id. at 1464 n.1.
126 See id. at 1465, 1466.
127 See id. at 1465 (citing Lopez, 514 U.S. at 549).
128 See Harrington, 108 F.3d at 1465.
129 See id. at 1466 (citation omitted).
130 See id. at 1466.
131 See id. at 1466, 1468–69.
132 See id. at 1470.
133 See Harrington, 108 F.3d at 1465, 1470. The court’s rejection of the aggregation principle and the de minimis standard represents a significant narrowing of pre-Lopez commerce clause jurisprudence. See Merritt, supra note 10, at 678–79.
134 See 179 F.3d at 231. The conviction was upheld because the court was equally divided and only the dissenting justices authored an opinion. See id.
135 See id. at 230, 231 (Higginbotham, J., dissenting).
136 See id. (Higginbotham, J., dissenting).
137 See id. (Higginbotham, J., dissenting).
138 See id. at 232 (Higginbotham, J., dissenting). The dissent rejected the argument that a conviction under the Hobbs Act for the robbery of a store may be upheld under the second “person or things in commerce” prong of the Commerce Clause power because a store is not an instrumentality of commerce and is not itself in interstate commerce. See id. at 241 (Higginbotham, J., dissenting). The dissent viewed the second prong as encompassing only vehicles that move in interstate commerce and people or goods traveling in interstate commerce. See id. (Higginbotham, J., dissenting).
139 See Hickman, 179 F.3d at 234–35 (Higginbotham J., dissenting).
140 See id. (Higginbotham, J., dissenting).
141 See id. at 235 (Higginbotham, J., dissenting). The dissent cited the Lopez reliance upon Wickard v. Filburn, 317 U.S. 111 (1942) as a compelling example of the recommended rule because the activity in Wickard was commercial and had interactive effects on others in the market. See Hickman, 179 F.3d at 235 (Higginbotham, J., dissenting).
142 See id. at 234–35 (Higginbotham, J., dissenting).
143 See id. at 231, 237–38 (Higginbotham, J., dissenting). Commerce has grown to include selling, buying, bartering, manufacturing, agriculture and services, as well as transporting for those purposes. See id. at 237–38 (Higginbotham, J., dissenting). There is no basis for including robbery in economic activity. See id. (Higginbotham, J., dissenting).
144 See Hickman, 179 F.3d at 231 (Higginbotham, J., dissenting).
145 See id. (Higginbotham, J., dissenting).
146 See id. at 244 (DeMoss, J., specially dissenting). The legislative history of the Hobbs Act, however, does show that Congress passed the statute to combat highway robberies that were having a substantial effect on interstate commerce. See id. (DeMoss, J., specially dissenting). The regulation of such highway robberies, unlike robberies of local retail establishments, fits comfortably within the second prong of Congress’s Commerce Clause power. See id. (DeMoss, J., specially dissenting).
147 See id. at 238 (Higginbotham, J., dissenting). Robbery is an area of traditional state sovereignty under the police power, and where there is ambiguity whether an activity is economic, determining whether the activity falls within the police power of the states is an informing means of resolving the ambiguity. See id. (Higginbotham, J., dissenting).
148 See id. at 233 (Higginbotham, J., dissenting).
149 See Hickman, 179 F.3d at 231, 233 (Higginbotham, J., dissenting).
150 See id. at 233 (Higginbotham, J., dissenting).
151 See id. at 242 (Higginbotham, J., dissenting).
152 See id. at 235–36.
153 See id. at 240–41 (Higginbotham, J., dissenting).
154 See Hickman, 179 F.3d at 231–32 (Higginbotham, J., dissenting).
155 See id. at 231 (Higginbotham, J., dissenting).
156 See supra notes 96–155 and accompanying text.
157 See St. Laurent, supra note 13, at 107.
158 See Lopez, 514 U.S. at 564.
159 See id. at 552; see also Lopez, 514 U.S. at 578 (Kennedy, J., concurring); Merritt, supra note 10, at 685–86.
160 See Lopez, 514 U.S. at 564; Merritt, supra note 10, at 712; St. Laurent, supra note 13, at 81.
161 See Lopez, 514 U.S. at 564; Merritt, supra note 10, at 712.
162 See Lopez, 514 U.S. at 559–561; Hickman, 179 F.3d at 231 (Higginbotham, J., dissenting); see also supra notes 35–38 and accompanying text.
163 See Lopez, 514 U.S. at 559–61; see also supra notes 35–38 and accompanying text.
164 See supra note 39–41 and accompanying text.
165 See supra notes 42–44 and accompanying text.
166 See supra notes 36–37 and accompanying text.
167 See Lopez, 514 U.S. at 561–62; Hickman, 179 F.3d at 240–41 (Higginbotham, J., dissenting); see also supra notes 48–50 and accompanying text.
168 See supra notes 48–50 and accompanying text.
169 See Lopez, 514 U.S. at 559–61; Hickman, 179 F.3d at 231 (Higginbotham, J., dissenting).
170 See supra notes 59–75 and accompanying text.
171 See supra notes 59–75 and accompanying text.
172 See supra notes 59–75 and accompanying text; see also Lopez, 514 U.S. at 562–63. Although Congress is not required to make formal findings, the Court reasoned that to the extent such findings would have enabled the Court to evaluate the merits of the regulated activity as commercial in nature, even though no such substantial effect was plainly evident, they were lacking here. See id.
173 See Lopez, 514 U.S. at 558 (citation omitted).
174 See supra notes 42–44 and accompanying text.
175 See supra notes 42–44 and accompanying text.
176 See supra notes 42–44 and accompanying text.
177 See supra notes 42–44 and accompanying text.
178 See Lopez, 514 U.S. at 561–62; Hickman, 179 F.3d at 240–41 (Higginbotham, J., dissenting); see also supra notes 48–50 and accompanying text.
179 See supra notes 48–50 and accompanying text.
180 See Lopez, 514 U.S. at 559, 567; see also St. Laurent, supra note 13, at 63, 95, 105. To allow for aggregation of the effects of all robberies would result in a general federal police power. See St. Laurent, supra note 13, at 95. The Hobbs Act would thus federalize the robbery of every Mom and Pop store that buys coffee, spices or fruit from out of state—that is all of them. See id. at 107.
181 See supra notes 96–155 and accompanying text.
182 See Lopez, 514 U.S. at 567–68; St. Laurent, supra note 13, at 95.
183 See Arena, 180 F.3d at 390; see also supra notes 96–102 and accompanying text.
184 See supra notes 96–102 and accompanying text.
185 See supra notes 96–102 and accompanying text.
186 See supra notes 123–133 and accompanying text.
187 See supra notes 123–133 and accompanying text.
188 See supra notes 123–133 and accompanying text.
189 See Lopez, 514 U.S. at 559–62; Hickman, 179 F.3d at 231, 240–41 (Higginbotham, J., dissenting); see also supra notes 51–54 and accompanying text.
190 See supra notes 96–155 and accompanying text.
191 See Lopez, 514 U.S. at 562–63; see also supra notes 59–75 and accompanying text.
192 See Hickman, 179 F.3d at 244 (DeMoss, J., specially dissenting).
193 See Lopez, 514 U.S. at 561 n.3. Although Congress has the power under the Commerce Clause to regulate commercial activities, and this power will at times affect areas of state sovereignty, that authority does not include the power to take over entire areas of traditional state concern. See id. at 565–66; see also id. at 577 (Kennedy, J., concurring).
194 See Lopez, 514 U.S. at 561 n.3, 565–66; see also id. at 583 (Kennedy J., concurring).
195 See McLeese, supra note 1, at 14–15, (citing Dep’t of Justice, United States Attorney’s Manual, tit. 9, § 131.040.
196 See id.
197 See Lopez, 514 U.S. at 561–62; Hickman, 179 F.3d at 240–41 (Higginbotham, J., dissenting); see also supra notes 48–50 and accompanying text.
198 See Lopez, 514 U.S. at 559.
199 See Arena, 180 F.3d at 389–90, 391.
200 See id. at 391.
201 See id.
202 See Harrington, 108 F.3d at 1468–69. The court instructed the jury regarding the interstate nexus element of the Hobbs Act as follows: “The term obstructs, delays or affects interstate commerce means any action which in any manner or to any degree interferes with, changes or alters the movement or transportation or flow of goods, merchandise, money or other property in interstate commerce.” See id. at 1469.
203 See id. at 1469.
204 See id.
205 See id. at 1465, 1470.
206 See Hickman, 179 F.3d at 232 (Higginbotham, J., dissenting); St. Laurent, supra note 13, at 63.
207 See St. Laurent, supra note 13, at 63.
208 See Harrington, 108 F.3d at 1473 (Sentelle, J., dissenting).
209 See Lopez, 514 U.S. at 567–68.
210 See id. at 552, 561 n.3.
211 See id. at 567.
212 See id. at 558–59.
213 See Antonin Scalia, Judicial Deference to Agency Interpretations of Law, Duke L.J. 511, 515 (1989).
214 See Lopez, 514 U.S. at 552.