Cary B. Davis, The Commerce Clause: Border Crossing + Church Burning = Interstate Commerce (A Formula for Federalizing Common Law State Crimes)

57 Fla. L. Rev. 975 (2005) | | | |

TEXT :: Respondent, a practicing Luciferian from Indiana, drove his van south to Georgia where he set fire to five churches. One of the arsons resulted in the death of a volunteer firefighter. Respondent pleaded guilty in federal court to five counts of church arson in violation of the Church Arson Prevention Act (CAPA). Respondent subsequently challenged his convictions on constitutional grounds, arguing that the CAPA exceeded Congress’s Commerce Clause powers as applied to him. Respondent argued that the federal commerce power could not reach his acts because the church burnings-noneconomic, purely intrastate crimes-lacked a sufficient nexus to interstate commerce.

A three-judge panel of the Eleventh Circuit Court of Appeals agreed with Respondent, reversing the convictions on the ground that the church arsons were beyond the reach of Congress’s commerce powers and thus not covered by the CAPA. A majority of the Eleventh Circuit vacated the panel’s decision and the court considered Respondent’s appeal en banc. Affirming Respondent’s convictions, the en banc court HELD that, since Respondent had crossed state lines to commit church arson, his crimes were properly regulated under Congress’s authority to protect the channels and instrumentalities of commerce.


The Constitution created a federal government of enumerated powers. Powers not vested in Congress by the Constitution remain the province of the States. This system of dual sovereignty, known as federalism, creates a dynamic tension between federal and state power-a tension that reduces the risk of tyranny and abuse from either front and ultimately protects the liberties of citizens. Congress relies on the Commerce Clause as constitutional authority for a broad range of legislation. This broad power, however, is not without limits, and the duty to interpret those boundaries lies with the Supreme Court. From 1937 to 1995, the Court’s Commerce Clause decisions took a broad view of federal commerce power, triggering an expansion of federal regulation of conduct and transactions. Then came the Court’s landmark decision in United States v. Lopez, a case that sent shockwaves through the status quo.

Lopez involved a facial attack on the federal Gun-Free School Zones Act (GFSZA) by a twelfth-grader who was charged, under the statute, with possession of a gun on campus. Striking down a piece of Commerce Clause legislation for the first time in nearly sixty years, a divided Court held that Congress’s attempt to criminalize mere possession of a firearm at a school exceeded the bounds of federal commerce power. The Court began by summarizing nearly two centuries of Commerce Clause jurisprudence, outlining three broad categories under which Congress may regulate commerce. First, Congress may regulate the channels of interstate commerce. Second, Congress may “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” Finally, Congress may regulate those activities that have a substantial effect on interstate commerce.

Finding that the first two prongs did not apply to the GFSZA, the Court analyzed the statute under the substantial commercial effect prong. In striking down the GFSZA, the Court cited a number of problems with the statute, but it indicated that the noneconomic nature of gun possession was the fatal flaw. The Court also rejected the Government’s argument that Congress has the power to regulate noneconomic, intrastate activity when the activity, viewed in the aggregate, substantially affects interstate commerce. Recognizing that the Court’s prior Commerce Clause opinions suggested a possible expansion of federal power, the Court declined the invitation to open that door. To do so, the Court stated, would be tantamount to giving Congress virtually plenary power to legislate in areas historically reserved to the states-family law, education, and criminal law, for example. Thus, the Court’s rationale for shaking up the status quo and calling a halt to the expansion of the federal commerce power was rooted in the notion that federalism values must be protected.

In United States v. Morrison, the Court reaffirmed the Lopez commitment to federalism and added another layer of restriction on Congress’s commerce power. In Morrison, the Court held unconstitutional the civil remedy portion of the Violence Against Women Act (VAWA), which created a private right of action for female victims of violence. Analyzing the case under the substantial commercial effect prong, the Court began by citing Lopez for the proposition that federal regulation of intrastate conduct is presumptively invalid unless the targeted conduct is economic in nature. The Court also added gloss to the channels and instrumentalities prongs by stating that the power to regulate intrastate violence is left exclusively to the states unless that violence targets the channels or instrumentalities of interstate commerce.

The key question in Morrison was whether congressional findings about the effects of the targeted activity on interstate commerce, a missing ingredient in Lopez, could save an otherwise suspect statute from judicial invalidation. The Court said no. The Court emphasized that simply because Congress concludes that “‘a particular activity substantially affects interstate commerce does not necessarily make it so.’” According to the Court, whether an activity substantially affects interstate commerce is ultimately a judicial rather than a legislative question. Invoking the strong federalism themes of Lopez, the Court refused to defer to Congress’s findings when the result of such deference would be to convert the Commerce Clause into a general police power.

In United States v. Jones, the Court again relied heavily on the federalism principles of Lopez in narrowly construing the reach of the federal omnibus arson statute. Unlike the statutes involved in Lopez and Morrison, the federal arson statute contained a jurisdictional hook, requiring the government to prove that the damaged property was “used in interstate . . . commerce or in any activity affecting interstate . . . commerce.” Reversing petitioner’s arson conviction, a unanimous Court held that the statute could not be read to apply to an arsonist who burns a residential dwelling. The Court opted for a narrow interpretation of the statute in order to avoid the dubious constitutional conclusion that residential arson- “‘traditionally local criminal conduct’”-is “‘a matter for federal enforcement’” under the Commerce Clause. The Court reasoned that if such an attenuated connection to interstate commerce could serve as the basis for federal regulation of the “paradigmatic common-law state crime” of arson, then “hardly a building in the land would fall outside the federal statute’s domain.” Thus, the Court’s analysis in interpreting the statute was guided by the federalism principles brought to the fore in Lopez.

In affirming Respondent’s convictions for church arson, the instant court applied neither the substantial commercial effect test of Lopez and Morrison, nor the narrow interpretative approach of Jones. Instead, the instant court relied on the channels and instrumentalities prongs of Lopez in holding that Congress had the constitutional authority under the Commerce Clause to proscribe Respondent’s church arsons. The instant court asserted that there was no need to analyze the case under the substantial commercial effect prong since Respondent used the channels (highways) and instrumentalities (Respondent’s van) of interstate commerce to carry out his crimes. The instant court further asserted that the scope of Congress’s authority under the first two Lopez prongs encompassed the power to prevent the channels and instrumentalities of interstate commerce from being used to facilitate harmful acts, even when the proscribed harmful act is consummated outside the flow of commerce. In the instant case, a border crossing was enough to bring Respondent within the ambit of the Commerce Clause.

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