Federal hate crime laws and United States v. Lopez: on a collision course to clarify jurisdictional-element analysis.

Author:Dipompeo, Christopher
 
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INTRODUCTION I. FEDERAL HATE CRIME LEGISLATION IN THE UNITED STATES A. History of the Matthew Shepard Act B. Structure of the Matthew Shepard Act C. Debate Surrounding the Matthew Shepard Act II. MODERN COMMERCE CLAUSE DOCTRINE A. The Lopez Framework B. United States v. Lopez C. United States v. Morrison D. Gonzales v. Raich E. Themes of Lopez, Morrison, and Raich III. ANALYSIS UNDER THE LOPEZ FRAMEWORK IV. JURISDICTIONAL-ELEMENT ANALYSIS A. Mere Presence of a Jurisdictional Element B. Sufficiency of the Jurisdictional Element in the Matthew Shepard Act 1. Affecting-Commerce Prongs 2. Persons-Things-or-Channels Prongs 3. Materials-in-Commerce Prongs 4. The Matthew Shepard Act's Jurisdictional Element at Work V. THE FUTURE OF FEDERAL HATE CRIME LAWS CONCLUSION INTRODUCTION

With the United States Supreme Court's decision in United States v. Lopez, (1) the Court began its long effort to reverse the sixty-year trend toward increasing federal dominion over traditionally local activities. Surprising to many at the time of its decision, Lopez signaled the modern Court's resistance to allowing Congress to exercise a general legislative power through the Commerce Clause, particularly in cases involving non-economic criminal activity. (2)

Lopez involved the Gun-Free School Zones Act of 1990 (GFSZA), (3) which made it a federal crime to possess a firearm within one thousand feet of a school. (4) The Court, in an opinion written by Chief Justice Rehnquist, held that Congress did not have the power to pass the law because it was not substantially related to interstate commerce. (5) In so doing, the Court announced a new framework for deciding whether a particular statute is within Congress's authority under the Commerce Clause. (6) Under this new framework, the Court will be extremely deferential to Congress in cases involving statutes that regulate some form of economic activity, but less so in evaluating regulations that involve non-economic activity. (7) The Court found that the GFSZA involved non-economic activity, and struck down the law after determining that the regulated activity did not substantially affect interstate commerce. (8)

To an outside observer, neither the Court's holding nor its reasoning is very surprising. Merely possessing a gun in a school zone does not seem like an activity that would substantially affect interstate commerce, and it makes sense that the Court would be suspicious of Congress's attempts to criminalize this type of non-economic activity under its power to "regulate Commerce ... among the several states." (9) What made Lopez such a shocking turn of events, however, is the fact that it marked the first time since 1937 that the Supreme Court had struck down a federal statute on the grounds that it was beyond Congress's power under the Commerce Clause. (10) Beginning with the Supreme Court's landmark decision in NLRB v. Jones & Laughlin Steel Corp., (11) the Commerce Clause had been regarded as a general grant of legislative power, and, indeed, Congress had used it as such. (12) The shock of Lopez came not from its outcome, but from its stunning departure from established Commerce Clause precedent.

Rather than overrule the previous sixty years of Commerce Clause cases, Lopez reinterpreted many of the earlier cases to make them fit within its new framework. While Lopez was a surprising shift in Commerce Clause doctrine at the time of the Court's decision, two major subsequent cases, United States v. Morrison (13) and Gonzales v. Raich, (14) have reinforced the Lopez framework and continued the effort to pull back on what the Court has seen as the increasing federalization of control over traditionally local activities. Since 1995, federal courts have been more willing to strike down federal laws as exceeding Congress's power under the Commerce Clause, particularly those laws that have dealt with non-economic criminal activities. (15)

During this same time, some high-profile and gruesome murders caught national headlines and led many prominent politicians and civil rights leaders to join in a call for stronger federal laws against bias-motivated crimes of violence, or "hate crimes." (16) On June 7, 1998, James Byrd, Jr., an African-American man, accepted a ride home from three men who turned out to be white supremacists. (17) Rather than driving him home, the three men took him to a secluded area where they beat him, chained him to the back of a pickup truck, and dragged him for three miles along a paved road. (18) Medical examiners believed that Byrd lived through most of this until a collision with a drainage culvert ripped his head and torso from his body. (19)

Later that same year, on October 7, 1998, two men murdered Matthew Shepard, a homosexual college student, after they became enraged when Shepard made sexual advances toward them. (20) The two men kidnapped Shepard, beat him, tied him to a fence like a scarecrow, and left him to die. (21) A biker found Shepard the next day, barely alive. (22) After five days in a coma, Shepard died from his injuries. (23)

These two brutal murders set off a firestorm of national attention as political leaders such as President Clinton and Attorney General Janet Reno joined with civil rights leaders to call for national hate crime legislation. (24) In the months that followed, Senator Edward Kennedy responded by proposing the Hate Crimes Prevention Act of 1999, (25) which would have made it a federal offense to commit a crime of violence motivated by the victim's race, religion, gender, sexual orientation, or disability. (26) Although this bill never became law, it has been reintroduced in each Congress since that time. (27)

Recently, the debate over hate crime legislation has again heated up, spurred in part by the events surrounding the "Jena 6" and the subsequent wave of noose hangings throughout the country. In August 2006, white students at Jena High School in Jena, Louisiana, hung two nooses from a tree in the school's courtyard--apparently as a signal to black students not to gather near the tree. (28) The students responsible for the nooses were lightly punished by the school and were not charged with a crime because their conduct violated no state law. (29) Racial tensions began to build in the town after residents found the nooses, eventually leading to an incident in which six black students beat a white student unconscious. Police arrested the six students responsible for the beating, and initially charged them with attempted second-degree murder. (30) Spun as a racially motivated double standard, the story began to attract national attention. On September 20, 2007, more than ten thousand protesters gathered in Jena in what has been called one of the largest civil rights protests since the Civil Rights Era of the 1960s. (31)

After the Jena incident, nooses began to appear in public places around the country, (32) leading civil rights leaders to call for--and many states to consider--statutes that would outlaw the hanging of nooses. (33) Spurred by these incidents, several thousand protesters gathered outside the Department of Justice in Washington, D.C., on November 16, 2007, to demand a stronger federal response to bias-motivated crimes. (34) Although current federal hate crime proposals (35) would only affect crimes committed because of bias that "caus[e] bodily injury," (36) the renewed attention that the Jena incident has brought to these proposals has lent strength to the push for their enactment.

In 2007, federal legislators rode this momentum to the near-passage of the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007 ("Matthew Shepard Act" or "the bill"). (37) The Matthew Shepard Act would have expanded the classes protected by existing civil rights laws and made it easier to exercise federal jurisdiction over bias-motivated violent crimes by relying on the Commerce Clause as the source of congressional authority. Despite generating wide support in both houses of Congress, the Matthew Shepard Act ultimately failed to become law when President George W. Bush promised to veto it if it came before him. Calling the bill "unnecessary and constitutionally questionable," the Bush Administration noted that Congress could only federalize this area of criminal law if it did so in implementation of a power granted to it, such as the power to regulate interstate commerce. (38) Without elaborating, the Administration indicated that the bill did not appear to be properly within Congress's authority under the Commerce Clause or any other granted power. (39)

In response, a number of supporters of the Matthew Shepard Act have argued for the bill's constitutionality. In so doing, they have claimed that because the bill contains a jurisdictional element (40) it will survive analysis under the Lopez framework and will therefore be a valid exercise of Congress's power under the Commerce Clause. (41) While the Supreme Court has made clear that the presence of a jurisdictional element that ensures that federal authorities can only prosecute cases having a substantial effect on interstate commerce would support the bill's constitutionality, none of the arguments in favor of the bill has provided a detailed analysis of its constitutionality under Lopez. (42) Rather than analyzing the bill's jurisdictional element to determine if it sufficiently limits the range of federal jurisdiction to ensure that each crime substantially affects interstate commerce, these commentators generally mention in passing that the bill would be constitutional simply because it contains a jurisdictional element. (3)

This is not surprising, given that there is currently no Supreme Court case directly addressing the issues of whether the mere presence of a jurisdictional element will enable a statute to survive scrutiny under the Commerce Clause, and, if not, how limiting the element must be in order for the statute to survive. In fact, a...

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