Crime control has become a federal cause célèbre. With the advent of modern modes of transportation, what had been considered primarily local concerns took on national dimensions. As that phenomenon occurred, Congress increasingly began to rely on the commerce power to enlarge federal criminal jurisdiction. The outer limits of commerce-based jurisdiction were recently tested in the Supreme Court in United States v. Lopez, a challenge to the Gun-Free School Zones Act. For the first time in nearly sixty years, the Court in Lopez held a statute unconstitutional because the regulated activity had an insufficient connection with interstate commerce. This article examines the development of commerce-based criminal jurisdiction from its most rudimentary to its most expansive forms. It then assesses the potential significance of Lopez as a check on seemingly limitless congressional power to federalize crime and explores the implications of the federalization movement itself.
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References
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1. U.S., Congress, Senate, S. Rep. No. 103-309, 103d Cong., 2d sess., 1994, p. 29.
2.
2. See Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books, 1994), p. 209.
3.
3. Under the commerce clause, Congress is authorized to regulate commerce “among the several states.” U.S. Const., Art. I, § 8, clause 3. Although the operative term of art is “commerce,” the regulated activity need not be commercial in character. Heart of Atlanta Motel v. United States, 379 U.S. 241, 256 (1964).
4.
4. 75 Cong. Rec. H13282, H13289 (17 June 1932) (remarks of Representative LaGuardia).
8. Baker's confederates need not know that the car was driven across state lines. They need only know that it was stolen. United States v. Hayes, 739 F.2d 236, 238 (6th Cir. 1984).
9.
9. Cf. Graciela Sevilla, “Basu's Slayer Sentenced to Life without Parole,”Washington Post, 19 Aug. 1993.
10.
10. 18 U.S.C. § 2119(3).
11.
11. 22 U.S. (9 Wheat.) 1 (1824).
12.
12. 22 U.S. at 194.
13.
13. Id.
14.
14. 317 U.S. 111 (1942).
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15. Id. at 125.
16.
16. Id. at 128.
17.
17. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). See also Katzenbach v. McClung, 379 U.S. 294 (1964) (Congress can prohibit discrimination by restaurants that cater to local customers if a substantial portion of food that restaurants receive has moved in interstate commerce).
18.
18. Heart of Atlanta Motel, 379 U.S. at 258.
19.
19. 18 U.S.C. § 1951(a).
20.
20. United States v. Green, 350 U.S. 415, 420-21 (1956).
21.
21. 361 U.S. 212 (1960).
22.
22. Id. at 215.
23.
23. United States v. Bagnariol, 665 F.2d 877, 894 (9th Cir. 1981), cert. denied, 456 U.S. 962 (1982).
24.
24. United States v. Russell, 471 U.S. 858 (1985).
25.
25. Some courts have held that it does. See, for example, United States v. Ramey, 24 F.3d 602, 607 (4th Cir. 1994), cert. denied, 115 S. Ct. 1838 (1995).
26.
26. Cf. United States v. Mazzei, 521 F.2d 639 (3d Cir.) (extortion in connection with a local lease that depletes lessee's assets and impairs its ability to do business interstate is sufficient), cert. denied, 423 U.S. 1014 (1975).
27.
27. See United States v. Ryan, 41 F.3d 361, 364-65 (8th Cir. 1994) (en banc), cert. denied, 115 S. Ct. 1793 (1995).
28.
28. Some courts have held that the receipt of natural gas or electricity by a private dwelling provides the requisite commerce connection. See, for example, Ramey, 24 F.3d at 607.
29.
29. Cf. Stirone v. United States, 361 U.S. 212, 215 (1960) (if concrete maker's business had been hindered or destroyed by defendant's extortion, interstate shipments of sand to him would have decreased or halted); Katzenbach v. McClung, 379 U.S. 294, 300 (1964) (restaurant's discrimination against minorities diminished the volume of food it purchased in interstate commerce).
30.
30. 402 U.S. 146 (1971).
31.
31. Id. at 154 (quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)).
32.
32. Polish Nat'l Alliance v. NLRB, 322 U.S. 643, 650 (1944).
33.
33. Hodel v. Indiana, 452 U.S. 314, 323-24 (1981).
34.
34. 115 S. Ct. 1624 (1995).
35.
35. 18 U.S.C. § 922(q).
36.
36. 115 S. Ct. at 1632.
37.
37. Id. at 1630.
38.
38. Id. at 1630-32. After the court of appeals called the constitutionality of the Gun-Free School Zones Act into question in Lopez, Congress amended the act by adopting formal findings that articulate commerce-based concerns. Since the government did not rely on the findings, the Court did not consider them.
39.
39. FCC v. Beach Communications, Inc., 113 S. Ct. 2096, 2102 (1993).
40.
40. Id.
41.
41. United States v. Edwards, 13 F.3d 291, 295 (9th Cir. 1994), rev'd on other grounds, 55 F.3d 428 (9th Cir. 1995).
42.
42. 115 S. Ct. at 1632.
43.
43. Id. at 1633.
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44. Id.
45.
45. Id. at 1642, 1651 (Thomas, J., concurring).
46.
46. See Stuart Taylor, Jr., “The Court Is Not a Right Wing Nut,”Legal Times, 1 May 1995, p. 26.
47.
47. 115 S. Ct. at 1634, 1637 (Kennedy, J., concurring).
48.
48. Id. at 1641-42.
49.
49. Id. at 1634.
50.
50. See United States v. Robertson, 115 S. Ct. 1732 (1995) (per curiam). Although Robertson was argued on the assumption that the question was whether the activities of the gold mine affected commerce, the Court found that the “affecting commerce” test applies only to intrastate commercial activities. The proof at trial, however, established that the mine was engaged in interstate commerce and thus obviated any need to consider whether its intrastate activities had a substantial effect on commerce.
51.
51. See United States v. Moore, 25 F.3d 1042 (4th Cir. 1994), cert. denied, 115 S. Ct. 1838 (1995); United States v. Ramey, 24 F.3d 602 (4th Cir. 1994), cert. denied, 115 S. Ct. 1838 (1995).
52.
52. See Kathleen F. Brickey, “Criminal Mischief: The Federalization of American Criminal Law,”Hastings Law Journal, 46:1135, 1146-1165 (1995).
53.
See also Sara Sun Beale, “Federalizing Crime: Assessing the Impact on the Federal Courts,” this issue of The Annals of the American Academy of Political and Social Science.
