Is the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act Constitutional?

As you are probably aware, President Obama signed H.R. 2647 on October 28, 2009, making it Federal law. For the most part, H.R. 2647, titled The National Defense Authorizations Bill for Fiscal Year 2010, is what its title implies: an appropriations bill for the defense budget in 2010. However, tacked on to the final ten pages of the bill is the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act ("The Hate Crimes Prevention Act"). The Hate Crimes Prevention Act states that:

"Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—‘‘(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and ‘‘(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—‘‘(i) death results from the offense; or‘‘(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill."

And further states:

‘‘Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person— ‘‘(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and ‘‘(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—‘‘(I) death results from the offense; or‘‘(II) the offense includes kidnapping or anattempt to kidnap, aggravated sexual abuse oran attempt to commit aggravated sexual abuse, or an attempt to kill."

Essentially, this translates to adding further criminal penalties to anyone who causes, or attempts to cause, bodily injury to another because of their, actual or perceived, race, religion, national origin, gender, sexual orientation, gender identity or disabilities. In reality, we all know that, while this sounds really great and well intentioned, it leaves sufficient gray area for this to apply to almost any assault. For example, as a kid I witnessed several fights where one antagonist called the other a "faggot," not because his fellow antagonist was actually a homosexual, but simply because that was a derogatory term that we had all grown up with. Under the Hate Crimes Prevention Act, what formerly would have been a simple assault could now be (mis)construed as a "hate crime" with the potential for up to ten years of jail time. The hypotheticals certainly don't end there, but I digress.

While the implications of the Hate Crimes Prevention Act are certainly a cause for concern, it is even more concerning that Congress is using the Commerce Clause as the basis for their authority to implement it. The Supreme Court has ruled that the Commerce Clause gives Congress the power to regulate three broad categories of activity, which include:

(1) The use of the channels of interstate commerce. (See, e.g., Darby, 312 U. S., at 114; (" `[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.' " (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917))).

(2) The instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. (See, e.g., Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce)).

(3) Those activities having a substantial relation to interstate commerce. Jones & Laughlin Steel, 301 U. S., at 37. In other words, those activities that substantially affect interstate commerce.

In 1995, the Supreme Court addressed a very similar issue in United States v. Lopez, 514 U.S. 549 (1995). In Lopez, Alphonso Lopez, Jr. challenged the Gun Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."

As was the case in Lopez, the first two categories of activity listed above are clearly inapplicable to the Hate Crimes Prevention Act. Therefore, unless "hate crimes" can be shown to substantially affect interstate commerce, the Commerce Clause does not provide Congress with the authority to promulgate the Hate Crimes Prevention Act. The Supreme Court stated in Lopez that:

"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 ... is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce."

Sound familiar? The Hate Crimes Prevention Act is a criminal statute that has nothing to do with "commerce" or any sort of economic enterprise. Under a fair reading of the statute, no reasonable person could categorize it any differently. Nevertheless, Congress, in a blatant attempt to circumvent the ruling in Lopez, published the following "findings" to support the Hate Crimes Prevention Act's relation to interstate commerce:

"The incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim ... substantially affects interstate commerce in many ways, including the following: (A) The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence. (B) Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity. (C) Perpetrators cross State lines to commit such violence. (D) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence. (E) Such violence is committed using articles that have traveled in interstate commerce..."

The "findings" finish up with a lengthy screed about slavery that is so incomprehensible and off-base that it isn't even worth posting. Now compare these "findings" with the Lopez Court's discussion of the Government's arguments:

"The Government's essential contention, in fine, is that we may determine here that §922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. Brief for United States 17. The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. See United States v. Evans, 928 F. 2d 858, 862 (CA9 1991). Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. Cf. Heart of Atlanta Motel, 379 U. S., at 253. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's economic well being. As a result, the Government argues that Congress could rationally have concluded that §922(q) substantially affects interstate commerce."

Of course, just because the Government states that an activity "substantially affects interstate commerce," does not mean that it actually does. The Lopez Court provided the following analysis of the Government's arguments:

"We pause to consider the implications of the Government's arguments. The Government admits, under its "costs of crime" reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."

And concluded that:

"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States ... To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do."

Admittedly, Lopez seems to allow Congress some latitude in promulgating this type of legislation in the event that they publish "findings" to support its relation to interstate commerce. Indeed, the Supreme Court addressed that very issue when it decided United States v. Morrison, 529 U.S. 598 (2000); a challenge to 42 U.S.C. § 13981, which provided a federal civil remedy for the victims of gender-motivated violence. In promulgating § 13981, Congress, in the same way as they have in the Hate Crimes Prevention Act, provided support for the statute's relation to interstate commerce by publishing numerous "findings." The Court responded to this by stating:

"[I]n Lopez, the noneconomic, criminal nature of possessing a firearm in a school zone was central to the Court’s conclusion that Congress lacks authority to regulate such possession. Similarly, gender-motivated crimes of violence are not, in any sense, economic activity. Second, like the statute at issue in Lopez, §13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ regulation of interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that §13981 is sufficiently tied to interstate commerce to come within Congress’ authority, Congress elected to cast §13981’s remedy over a wider, and more purely intrastate, body of violent crime. Third, although §13981, unlike the Lopez statute, is supported by numerous findings regarding the serious impact of gender-motivated violence on victims and their families, these findings are substantially weakened by the fact that they rely on reasoning that this Court has rejected, namely a but-for causal chain from the initial occurrence of violent crime to every attenuated effect upon interstate commerce. If accepted, this reasoning would allow Congress to regulate any crime whose nationwide, aggregated impact has substantial effects on employment, production, transit, or consumption. Moreover, such reasoning will not limit Congress to regulating violence, but may be applied equally as well to family law and other areas of state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce."

Even if one were to make a credible distinction between violent crimes motivated by "hate" and gender-motivated violence (an amazing feat considering gender-motivated violent crimes are included in the Hate Crimes Prevention Act), Congress' apparent belief that the Hate Crimes Prevention Act has even a shred of constitutionality is still incredible in light of the clear precedent set forth in Lopez and Morrison. Has the scope of federal power shifted so greatly in the past 9 years that such an Act of Congress is now acceptable? I hope, for the sake of the United States, that it has not. However, I fear that today's Court lacks the temerity to properly restrain Congress, even when they have clearly overstepped the bounds of their power as they have here.