RICO and the commerce clause: A reconsideration of the scope of federal criminal law

Columbia Law Review

Volumn 108, Issue 8, 2008, Pages 1991-2036

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References (398)

1. United States v. Lopez, 514 U.S. 549, 552 (1995).
2. See infra Part II (discussing range of views on scope of commerce power).
3. See infra notes 18-21 and accompanying text.
4. See infra note 67 and accompanying text.
5. See, e.g., Paul Tzur, Comment, I Know Economic Activity When I See Economic Activity: An Operational Overhaul of the Measure by Which Federal Criminal Conduct Is Deemed "Economic," 94 J. Crim. L. & Criminology 1105, 1108 (2004) ("[T]he new Commerce Clause analysis has been haphazardly applied by the lower courts ....").
6. The Court's most important recent Commerce Clause cases have dealt with federal criminal statutes. See Gonzales v. Raich, 545 U.S. 1 (2005) (considering congressional power to criminalize narcotics possession and consumption);
7. Jones v. United States, 529 U.S. 848 (2000) (arson);
8. United States v. Morrison, 529 U.S. 598 (2000) (gender-based violence);
9. Lopez, 514 U.S. at 549 (gun possession near schools). For discussion, see infra Part I.B.
10. See, e.g., Craig M. Bradley, Anti-Racketeering Legislation in America, 54 Am. J. Comp. L. (Supp.) 671, 672 (2006)
11. [hereinafter Bradley, Anti-Racketeering] ("[T]he commerce clause has been eroded into near meaninglessness by the expansion of federal laws directed at organized crime ....");
12. cf. infra Part IA (discussing how federal criminal statutes have relied on increasingly expansive views on the Commerce Clause).
13. 18 U.S.C. §§ 1961-1968 (2000);
14. see also infra notes 43-54 and accompanying text.
15. See, e.g., United States v. Robertson, 514 U.S. 669 (1995) (involving defendant charged under RICO for investing proceeds of illegal interstate narcotics trafficking operation in Alaskan gold mine).
16. See, e.g., United States v. Nascimento, 491 F.3d 25 (1st Cir. 2007) (involving RICO prosecution of local street gang that did not engage in economic activity).
17. See infra Part I.C.
18. See United States v. Lopez, 514 U.S. 549, 552 (1995) ("'[A] healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.'"
19. (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991))).
20. Lawrence M. Friedman, Crime and Punishment in American History 261-62 (1993).
21. Id. at 264.
22. Id. at 265 (noting that new criminal laws such as the Mann Act and the Dyer Act "seemed to stretch the power of Congress under the 'interstate commerce' clause of the Constitution").
23. Ch. 395, 36 Stat 825 (1910) (codified as amended at 18 U.S.C. §§ 2421-2424 (2000)).
24. Representative James Robert Mann authored the Act which was originally entided the White Slave Traffic Act See Caminetti v. United States, 242 U.S. 470, 497-98 (1917) (McKenna, J., dissenting) (discussing legislative history of Mann Act).
25. Hoke v. United States, 227 U.S. 308 (1913).
26. Id. at 323
27. (citing Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 215 (1885)).
28. See Champion v. Ames (Lottery Case), 188 U.S. 321, 363 (1903) (upholding congressional statute criminalizing "carriage of [lottery] tickets from state to state").
29. Act of Feb. 8, 1897, ch. 172, 29 Stat 512 (codified as amended at 18 U.S.C. §§ 1461-1462).
30. Bradley, Anti-Racketeering, supra note 7, at 675-77. The Dyer Act was also challenged as a violation of the Commerce Clause, provoking an explicit discussion by the Supreme Court of the "radical change in transportation" that had necessitated a more expansive congressional power to defeat those criminals who sought to avoid prosecution by crossing state lines.
31. See Friedman, supra note 13, at 265 (quoting Brooks v. United States, 267 U.S. 432, 438 (1925)). Thus the Court used the increasing ability of criminals to travel throughout the country as a key justification for a newly expansive federal power.
32. Id.
33. The Supreme Court reinterpreted congressional power to permit regulation of some intrastate activity in three watershed cases: Wickard v. Filburn, 317 U.S. 111, 124 (1942) (upholding regulation of noneconomic production that "affect[s] interstate commerce"); United States v. Darby, 312 U.S. 100 (1941) (upholding regulation of production of goods to be shipped across state lines) ;
34. and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding congressional power to regulate intrastate unions). As a practical matter, these cases appear to have given Congress "unfettered authority to control all economic activity."
35. Earl M. Maltz, The Chief Justiceship of Warren Burger, 1969-1986, at 61 (2000);
36. cf. infra note 67 and accompanying text (quoting Lopez Court's statement of principle of broad deference to congressional regulations of any economic activity). The scope of congressional power to regulate or criminalize noneconomic activity remains widely disputed.
37. See infra Part II.
38. See Bradley, Anti-Racketeering, supra note 7, at 681-85 (discussing growth of anti-organized crime sentiment in federal government and consequent growth in federal antiracketeering legislation).
39. See, e.g., Gambling Devices Act of 1962, Pub. L. No. 87-840, 76 Stat. 1075 (codified as amended at 15 U.S.C. §§ 1171-1178 (2006)) (banning interstate shipment of gambling materials);
40. Act of Sept. 13, 1961, Pub. L. No. 87-228, 75 Stat. 498 (codified at 18 U.S.C. § 1952) (prohibiting interstate travel in aid of racketeering) ;
41. Act of Sept. 13, 1961, Pub. L. No. 87-216, 75 Stat. 491 (codified at 18 U.S.C. § 1084) (banning use of interstate communication facilities for gambling purposes).
42. See generally G. Robert Blakey & Harold A. Kurland, The Development of the Federal Law of Gambling, 63 Cornell L. Rev. 923 (1978).
43. For a discussion of the growing salience of crime as a national political issue, especially from the 1960s onward, see generally Friedman, supra note 13, at 274-76.
44. Pub. L. No. 90-321, §§ 201-203, 82 Stat. 146, 159-62 (codified at 18 U.S.C. §§ 891-896).
45. Id. § 201(a), 82 Stat at 159.
46. 402 U.S. 146 (1971).
47. Kathleen M. Sullivan & Gerald Gunther, Constitutional Law 106 (16th ed. 2007) ("In [Perez v. United States], the Court appeared to reach the outer limits of the 'affecting commerce' rationale for federal criminal laws." (citation omitted)).
48. See Thomas W. Merrill, Rescuing Federalism After Raich: The Case for Clear Statement Rules, 9 Lewis & Clark L. Rev. 823, 839 (2005) (discussing how tripartite classification of Commerce Clause regulations, established in Perez, is now the Supreme Court's "fixed menu of the permissible options available to Congress").
49. Perez, 402 U.S. at 150. This was the first time the Court identified these three categories. See supra note 30.
50. Perez, 402 U.S. at 150.
51. Id. at 154.
52. Id. at 154-55.
53. This analysis clearly applies to economic crimes, of which loan sharking is an example. The critical unresolved question is to what extent if any, the class-of-activities framework should be applied to noneconomic crimes, such as crimes of violence. See infra Part III.
54. Pub. L. No. 91-513, 84 Stat. 1242 (1970) (codified at 21 U.S.C. §§ 801-971 (2000)).
55. Racketeer Influenced and Corrupt Organizations Act, Pub. L. No. 91-452, 84 Stat. 941 (1970) (codified at 18 U.S.C. §§1961-1968 (2000)).
56. For useful background on the history of anti-drug laws in America and the CSA in particular, see generally Gonzales v. Raich, 545 U.S. 1, 10-15 (2005). Early attempts to regulate narcotics took the form of revenue laws, under which all producers, sellers, and purchasers of the regulated drug were required to register with the Treasury Department and pay prohibitively high taxes. The two primary such laws were the Harrison Narcotics Act of 1914, Pub. L. No. 63-223, 38 Stat. 785 (repealed 1970), and the Marihuana Tax Act of 1937, Pub. L. 75-238, 50 Stat. 551 (repealed 1970). Both of these laws were repealed in 1970 when the Controlled Substances Act was passed.
57. See Raich, 545 U.S. at 10-11.
58. Raich, 545 U.S. at 11.
59. Id. at 12-13.
60. 21 U.S.C. §§ 841(a)(1), 844(a).
61. According to the Department of Justice, more than half of all federal prisoners have violated the narcotics laws. William H. Sabol, Heather Couture & Paige M. Harrison, Bureau of Justice Statistics Bulletin: Prisoners In 2006, at 9 (2007), available at http:// www.ojp.gov/bjs/pub/pdf/p06.pdf (on file with the Columbia Law Review) (stating 93, 751 of the 176,268 federal prisoners in 2006 were incarcerated for drug offenses);
62. cf. Kathleen F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135, 1148-50 (1995) (citing CSA and related statutes in federal "war on drugs" as the "single most significant contributor" to the increasing federalization of criminal law).
63. See, e.g., Erwin Chemerinsky, Constitutional Law: Principles and Policies 263 (3d ed. 2006) (calling RICO "one of the broadest and most important contemporary statutes").
64. See, e.g., The American Heritage Dictionary of the English Language 1441 (4th ed. 2006) (defining "racketeering" as "[t]o carry on illegal business activities that involve crimes"). The word derives from "racket," used in the sense of "dishonest business."
65. Id.
66. Craig M. Bradley, Racketeers, Congress, and the Courts: An Analysis of RICO, 65 Iowa L. Rev. 837, 838-40 (1980)
67. [hereinafter Bradley, Analysis of RICO].
68. See 18 U.S.C. §1961(1) (2000) (enumerating panoply of crimes included in definition of "racketeering").
69. Id. § 1961 (5) (defining "pattern of racketeering activity" to mean commission of two racketeering crimes within ten years of each other).
70. Id. § 1962(a)-(c); cf. Black's Law Dictionary 1287 (8th ed. 2004) (noting RICO "gready broadened" the original sense of the term "racketeering").
71. Bradley, Analysis of RICO, supra note 45, at 845 & n.39 (citing Senator McClellan, the bill's sponsor, as arguing that minor criminal offenses must be included as part of RICO to ensure the statute would effectively reach perpetrators of organized crime rings).
72. See supra notes 23-25 and accompanying text.
73. 18 U.S.C. § 1962.
74. Bradley, Anti-Racketeering, supra note 7, at 688.
75. Chemerinsky, supra note 43, at 263; Craig M. Bradley, Federalism and the Federal Criminal Law, 55 Hastings L.J. 573, 574 (2004)
76. [hereinafter Bradley, Federalism] (describing RICO as one of the "Four Horsemen" of federal criminal law).
77. See Bradley, Anti-Racketeering, supra note 7, at 688 (providing examples of RICO prosecutions of defendants who committed a few small-scale robberies, defrauded Medicare, or operated a "weekend dice and card game" in a trailer park).
78. See Brickey, supra note 42, at 1145 (noting passage of multiple significant federal criminal statutes since 1968 as well as steady increases in federal penalties for crimes).
79. Task Force on the Federalization of Criminal Law, Am. Bar Ass'n, The Federalization of Criminal Law 7 (1998) [hereinafter Task Force].
80. Bradley, Federalism, supra note 53, at 590;
81. cf. Friedman, supra note 13, at 268 (noting significant growth of federal criminal docket from 1960s through 1980s).
82. See William H. Rehnquist, The 1998 Year-End Report of the Federal Judiciary, Third Branch, at 1, 2 (1999) (warning that federalizing crime taxes judicial resources and "also threatens to change entirely the nature of our federal system");
83. William H. Rehnquist, Chief Justice's 1993 Year-End Report Highlights Cost-Saving Measures, Third Branch, at 1, 3 (1994) (arguing against expansion of role of federal courts in administration of criminal justice). The American Bar Association echoed Rehnquist's concerns.
84. Task Force, supra note 56, at 15, 26-31 (1998) (noting multiple disadvantages of trend toward federalization of criminal law);
85. cf. infra notes 237-240 and accompanying text (discussing criticisms of federalization of criminal law).
86. United States v. Lopez, 514 U.S. 549 (1995);
87. United States v. Morrison, 529 U.S. 598 (2000).
88. Lopez marked the first time in fifty years that the Court invalidated a congressional statute under the Commerce Clause. Madhavi M. McCall & Michael A. McCall, Chief Justice William Rehnquist His Law-and-Order Legacy and Impact on Criminal Justice, 39 Akron L. Rev. 323, 361-65 (2006).
89. For an overview, see Symposium, Federalism After Gonzales v. Raich, 9 Lewis & Clark L. Rev. 743 (2005);
90. Arthur B. Mark, III, Currents in Commerce Clause Scholarship Since Lopez: A Survey, 32 Cap. U. L. Rev. 671 (2004);
91. see also infra Part II.A-B.
92. For a discussion of lower court responses to these cases, see Brannon P. Denning & Glenn H. Reynolds, Rulings and Resistance: The New Commerce Clause Jurisprudence Encounters the Lower Courts, 55 Ark. L. Rev. 1253 (2003)
93. [hereinafter Denning & Reynolds, Rulings and Resistance];
94. Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came?, 2000 Wis. L. Rev. 369
95. [hereinafter Reynolds & Denning, Lower Court Readings];
96. see also infra Part II.C
97. See, e.g., Reynolds & Denning, Lower Court Readings, supra note 61, at 392 (describing Lopez as a "judicial Rorschach Test").
98. Lopez, 514 U.S. at 551.
99. Id. at 558-59;
100. see supra notes 30-31 and accompanying text (discussing origin of tripartite division of commerce power in Perez).
101. Lopez, 514 U.S. at 559.
102. Perez and other cases had used "affects commerce" and "substantially affects commerce" relatively interchangeably. In Lopez, the Court decided that the "proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce."
103. Id.
104. Id. at 560.
105. Id. at 561.
106. Id. (holding GFSZA regulates noneconomic activity, unlike statutes examined in previous cases, which precludes application of the aggregated substantial effects test).
107. Id.
108. Id. at 561-62.
109. United States v. Morrison, 529 U.S. 598, 601-02 (2000).
110. Id. at 617-18.
111. Id. at 613; cf. Jonathan H. Adler, Is Morrison Dead? Assessing a Supreme Drug (Law) Overdose, 9 Lewis & Clark L. Rev. 751, 759-62 (2005) (noting that Morrison was a "breakthrough for enumerated powers jurisprudence" in its emphasis on the economic or noneconomic "nature of the regulated activity or the regulatory scheme").
112. Morrison, 529 U.S. at 614.
113. Id. at 617-18.
114. Id. at 617.
115. See, e.g., Allan Ides, Economic Activity as a Proxy for Federalism: Intuition and Reason in United States v. Morrison, 18 Const Comment 563, 566-67 (2001) (noting confusion over whether the economic activity factor was dispositive in questions about the scope of the commerce power).
116. See, e.g., id. at 567 (discussing range of possible definitions of "economic activity");
117. see also Christy H. Dral Sc Jerry J. Phillips, Commerce by Another Name: The Impact of United States v. Lopez and United States v. Morrison, 68 Tenn. L. Rev. 605, 618 (2001) (criticizing Court for failure to provide adequate definition of "economic activity").
118. Denning & Reynolds, Rulings and Resistance, supra note 61, at 1256-57 (arguing that unwillingness to follow Supreme Court precedent raises questions about the "legitimacy of the Article III judiciary").
119. The anon statute is codified at 18 U.S.C. §844 (i) (2000) ("Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned . . . .").
120. 529 U.S. 848 (2000).
121. Id. at 857-58
122. (quoting United States ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)).
123. Id. at 856.
124. Id. at 855-56.
125. The refusal to consider these connections to interstate commerce is similar to the Morrison Court's refusal to allow a "but-for causal chain from the initial occurrence of violent crime to every attenuated effect on interstate commerce." United States v. Morrison, 529 U.S. 598, 599 (2000).
126. Jones, 529 U.S. at 855, 857.
127. Subsequent lower court decisions have disagreed about the application of this holding. For example, should the statute apply to the burning of churches? See Thomas Heyward Carter, Note, The Devil in U.S. v. Jones;
128. Church Burnings, Federalism, and a New Look at the Hobbs Act, 59 Wash. & Lee L. Rev. 1461, 1481-89 (2002) (discussing different approaches taken by courts in prosecuting church burnings in light of the decision in Jones). The issue is further discussed infra Part III.C
129. 545 U.S. 1, 5 (2005).
130. See, e.g., id. at 32 (defining class of activity in case as the "'intrastate, noncommercial cultivation, possession and use'" of a controlled substance
131. (quoting Raich v. Ashcroft, 352 F.3d 1222, 1229 (9th Cir. 2003))).
132. Id. at 14-15.
133. This distinction has been characterized as the difference between a "jurisdictional hook"-an element of a statute that must be satisfied in order to confer federal jurisdiction-and a "regulatory net" - a broad statutory scheme that sweeps in an entire class of activity without asking if individual cases have a needed jurisdictional element E.g., Tara M. Stuckey, Note, Jurisdictional Hooks in the Wake of Raich: On Properly Interpreting Federal Regulations of Interstate Commerce, 81 Notre Dame L. Rev. 2101, 2101-02 (2006).
134. Raich, 545 U.S. at 25-26 (citing Webster's Third New International Dictionary 720 (1966) ). Some have argued that this definition allows for an overly broad reach of federal power.
135. See id. at 49 (O'Connor, J., dissenting) ("[T]he Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach."). But the definition is "far from unlimited" and it would appear to exclude activity of the type Congress sought to regulate with the GFSZA and the VAWA.
136. Randy E. Barnett, Foreword: Limiting Raich, 9 Lewis & Clark L. Rev. 743, 749 (2005)
137. [hereinafter Barnett, Foreword] (noting that definition would exclude "most violent crimes"); see also infra notes 173-179 and accompanying text (discussing Raich's definition of "economic activity").
138. Raich, 545 U.S. at 25-26.
139. Id. at 18.
140. Id. at 12-13. The Court further noted the existence of congressional findings that local distribution and possession of narcotics contributed to the interstate trade, and that the impossibility of differentiating between locally produced narcotics and narcotics that had traveled in interstate commerce made statutory distinction "'not feasible.'" Id. at 12 n.20
141. (quoting congressional findings codified at 21 U.S.C § 801(1)-(6) (2000));
142. see also id. at 21 & n.32.
143. See id. at 22 ("[W]e have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.").
144. Id. at 28.
145. United States v. Lopez, 514 U.S. 549, 561 (1995).
146. Justice Scalia submitted a concurring opinion, making essentially the same argument as the majority but relying more heavily on the Necessary and Proper Clause of Article I, Section 8, in addition to the Commerce Clause. Scalia's Raich opinion adds little, if anything, to the majority's reasoning, aside from fleshing out the Necessary and Proper Clause analysis that is only briefly addressed by the majority opinion.
147. See Raich, 545 U.S. at 33-34 (Scalia, J., concurring) (relying on Necessary and Proper Clause, while acknowledging that this may still be consistent with the majority opinion);
148. cf. id. at 22 (majority opinion) (discussing Necessary and Proper Clause only briefly);
149. Michael C. Blumm & George A. Kimbrell, Gonzalez v. Raich, The "Comprehensive Scheme" Principle, and the Constitutionality of the Endangered Species Act, 35 Envti. L. 491, 496 (2005) (describing majority opinion and Scalia's concurrence as having same "constitutional moorings" in both Commerce Clause and Necessary and Proper Clause).
150. Denning & Reynolds, Rulings and Resistance, supra note 61, at 1253-57.
151. Id. at 1262 (noting very few cases in which facial or as-applied challenges to congressional statutes under the Commerce Clause have been successful in the circuit courts).
152. Boris I. Bittker & Brandon P. Denning, Bittker on the Regulation of Interstate and Foreign Commerce § 5.04, at 87 (Supp. 2008).
153. For further discussion of recent Commerce Clause cases in the federal courts, see infra Part II.C.2.
154. 380 F.3d 251, 258 (6th Cir. 2004).
155. The irony of the gang's name in light of the defendant's Commerce Clause challenge was not lost on the circuit court See id. at 253 (noting that "names can be deceiving" and that case presented question of whether the activities of the "Cash Flow Posse . . . had a substantial effect on the nation's cash flow").
156. Id. at 253.
157. Id. at 256.
158. The court's reasoning rests on the assumption that seeking profits through violent crime is not itself economic activity. This is an assumption that can be and has been challenged, but it accords with the reasoning of the Supreme Court in its recent Commerce Clause cases. Crucially, none of these cases inquired into possible economically based motives for the crime in question. Rather, the Supreme Court has looked at the activity itself-gun possession, gender-based violence, drug production-and asked whether the activity involves participation in an exchange of goods or services. This issue is discussed in detail, infra Part III.
159. Waucaush, 380 F.3d at 255.
160. Id.
161. United States v. Riddle, 249 F.3d 529, 537 (6th Cir. 2001) ("[A] de minimis connection suffices for a RICO enterprise that 'affects' interstate commerce."). The Waucaush court distinguished Riddle on the ground that Riddle involved an economic criminal enterprise.
162. Waucaush, 380 F.3d at 255-56.
163. See supra notes 32-34 and accompanying text.
164. Waucaush, 380 F.3d at 258. Although it may seem strange that an element of a crime - in this case, the "affecting interstate commerce" element-would have different meanings depending on whether the crime was economic in nature, the court relied on the Supreme Court's opinion in Jones v. United States as evidence that courts should interpret federal criminal statutes differently for different types of crimes in order to avoid constitutionally dubious expansions of congressional power.
165. Id. at 265.
166. Id. at 262
167. (quoting United States v. Morrison, 529 U.S. 598, 617 (2000)).
168. United States v. Nascimento, 491 F.3d 25 (1st Cir. 2007).
169. Id. at 30-31.
170. Id. at 43.
171. Id. at 41-42.
172. Judge Boudin concurred in the result but declined to endorse the Nascimento majority's reading of Raich. Id. at 52-53 (Boudin, C.J., concurring). He argued that the central principle of Lopez and Morrison - that aggregating the effects on commerce of an entire class of activities was only permitted in cases of economic activity-had been left undisturbed by Raich. This implies that Congress cannot reach noneconomic racketeering by means of the class-of-activities analysis applied by the Nascimento majority. Judge Boudin would have affirmed the conviction, however, on the alternate ground that the defendants had purchased guns that had traveled in interstate commerce.
173. See id.
174. Id. at 42 (majority opinion) (criticizing economic-noneconomic distinction as requiring too "rigid a taxonomy").
175. Id. at 37. The court refused to follow the statutory construction employed in Waucaush, which had interpreted RICO in one way when dealing with economic enterprises and another way when dealing with noneconomic ones.
176. See id. at 38 ("Courts simply are not 'free to interpret statutes as becoming inoperative when they approach constitutional limits.'" (internal quotation marks omitted)
177. (quoting Clark v. Martinez, 543 U.S. 371, 384 (2005))). But the concurring opinion took issue with this statutory construction, arguing that RICO should be interpreted in light of constitutional limits.
178. See id. at 51 (Boudin, C.J., concurring) (noting RICO uses "affects interstate commerce," which is a "term of art usually signifying Congress's intent to regulate to the limit of its Commerce Clause powers");
179. see also Scarborough v. United States, 431 U.S. 563, 571 (1977) (finding congressional use of "affecting commerce" language signifies intention to assert commerce power to its maximum extent).
180. Many legal observers had come to treat the Commerce Clause almost as an intellectual joke, a power so "swollen" beyond limit that "Congress could regulate any conduct" at all. See, e.g., Deborah Jones Merritt, Commerce!, 94 Mich. L. Rev. 674, 674-75 (1995).
181. Lopez v. United States, 514 U.S. 549, 584-602 (1995) (Thomas, J., concurring).
182. Id. at 585 ("I believe that we must further reconsider our 'substantial effects' test with an eye toward constructing a standard that reflects the text and history of the Commerce Clause ....").
183. Id. at 600 ("Under our jurisprudence, if Congress passed an omnibus 'substantially affects interstate commerce' statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional.").
184. See id. at 602 (urging Court to fundamentally reconsider its Commerce Clause jurisprudence in light of original understanding at an "appropriate juncture").
185. Grant S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control over Social Issues, 85 Iowa L. Rev. 1, 9 (1999).
186. See Gonzales v. Raich, 545 U.S. 1, 25-26 (2005) (using dictionary to define "economics" in terms of production and exchange of commodities).
187. See Nelson & Pushaw, supra note 125, at 107-08 (urging tripartite definition of commerce to include only (1) buying and selling goods, (2) buying and selling services, and (3) the "means by which commerce is transacted-for example, the documents used to facilitate commerce"). This view would even limit the scope of congressional power to regulate traffic across state lines, permitting such regulation only in cases where the traffic is economic in nature.
188. See id. at 127-31 (arguing that Supreme Court precedents upholding a nearly complete congressional power to regulate traffic across state lines were wrongly decided). Such a view represents a significant departure from Supreme Court precedents dating to even before the New Deal expansion of the commerce power.
189. See supra notes 18-21 and accompanying text (discussing early Supreme Court approval of plenary congressional power to regulate traffic across state lines).
190. Nelson & Pushaw, supra note 125, at 138.
191. Id. at 148-49 (contrasting laws aimed at protecting commercial actors, which Nelson and Pushaw would permit, with laws aimed at protecting persons or property generally, which they would not permit).
192. See id. at 155 (arguing that presence of housing insurance would allow Congress to regulate virtually all arson, but apparently not recognizing that same reasoning would permit regulation of other violent crimes due to their effect on markets for health, property, and other types of insurance).
193. But see Jones v. United States, 529 U.S. 848, 849 (2000) (holding that such an interpretation of the arson statute would raise "grave and doubtful constitutional questions");
194. Jesse H. Choper, Taming Congress's Power Under the Commerce Clause: What Does the Near Future Portend?, 55 Ark. L. Rev. 731, 740 (2003) (criticizing Nelson and Pushaw's theory on ground that it could allow Congress to regulate most violent crimes).
195. See Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 850 (2003) [hereinafter Barnett, New Evidence] (describing extensive survey of use of "commerce" in founding-era sources);
196. Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 104 (2001) [hereinafter Barnett, Original Meaning] (same).
197. Barnett, Original Meaning, supra note 131, at 111-25. This theory differs from Nelson and Pushaw's view in that the trade and exchange of goods is just one category within the broader universe of economic activity that Nelson and Pushaw would permit Congress to regulate.
198. See supra note 127 and accompanying text.
199. For examples of this argument, see, e.g., Akhil Reed Amar, America's Constitution: A Biography 107-08 (2005) (discussing broader meanings of "commerce" in founding period as "referring to all forms of intercourse in the affaire of life, whether or not narrowly economic or mediated by explicit markets");
200. Robert J. Pushaw, Jr., Methods of Interpreting the Commerce Clause: A Comparative Analysis, 55 Ark. L. Rev. 1185, 1199-202 (2003) (citing founding-era sources using "commerce" in broader sense and criticizing scholars who ignore these uses);
201. cf. Dral & Phillips, supra note 79, at 618 (criticizing economic-noneconomic distinction as unrooted in language of Constitution).
202. Barnett himself does not provide a clear application of his Commerce Clause research to contemporary statutes. See, e.g., Barnett, New Evidence, supra note 131, at 855 (noting that manufacturing and agriculture are examples of economic activities that are not included in his definition of commerce, but not specifying what impact this would have on federal law). Other proponents of the "trade and exchange of goods" theory of the Commerce Clause have also hesitated to give precise examples of the practical applications of the theory.
203. See, e.g., Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387, 1455 (1987) (discussing reluctance to support "dismantling of large portions of the modern federal government" as would arguably be required by originalist reading of Commerce Clause).
204. Gonzales v. Raich, 545 U.S. 1, 23 (2005) ("[T]he larger context of modern-era Commerce Clause jurisprudence [was] preserved by [Lopez and Morrison].");
205. cf. United States v. Morrison, 529 UJS. 598, 608 (2000) (placing Lopez within the Court's "modern, expansive interpretation of the Commerce Clause");
206. United States v. Lopez, 514 U.S. 549, 559 (1995) (emphasizing the Court's holding was "consistent with the great weight of [its] case law," including the New Deal-era precedents).
207. Morrison, 529 U.S. at 627 (Thomas, J., concurring);
208. see also Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167, 191 (1996) (identifying Justice Thomas as only Justice who has expressed willingness to reconsider Commerce Clause as foundation of modern administrative state).
209. Lopez, 514 U.S. at 601 n.8 (Thomas, J., concurring).
210. 22 U.S. (9 Wheat.) 1 (1824).
211. Id. at 197. Justice Marshall conceded the power is confined by the limitations "prescribed in the constitution," but he did not specify what those limits might be and focused instead on the concept of political accountability preventing Congress from overstepping.
212. Id. at 196-97.
213. See, e.g., Lino A. Graglia, United States v. Lopez: Judicial Review Under the Commerce Clause, 74 Tex. L. Rev. 719, 771 (1996) (criticizing Lopez's holding and arguing that federalism is a value to be enforced by "elected representatives of the people" rather than by courts).
214. Cf. Merrill, supra note 30, at 824-25 ("[T]he Rehnquist Court can be seen as a nineteen-year campaign by the late Chief Justice and his allies to repudiate the underlying thesis . . . that the respective spheres of authority between the federal government and the states should be determined solely by the political process."). The "political safeguards" view waned after Morrison but has again become more prominent after Raich.
215. See infra notes 151-152 and accompanying text.
216. In addition to Morrison and Jones, the Court upheld Commerce Clause challenges in two recent cases dealing with the Clean Water Act as well. See infra note 227. Even Raich, which rejected a Commerce Clause challenge to a federal statute, cannot be read as adopting the political safeguards view. The Raich majority conducted a sustained discussion of
217. Cf. Choper, supra note 130, at 731 (noting that the Court is "really serious about the existence of true limits on Congress's power under the Commerce Clause" and that theorists can no longer argue that courts should not enforce federalism without abandoning Supreme Court's jurisprudence).
218. For examples of this view, see Amar, supra note 133, at 108 (arguing Commerce Clause gives Congress power to regulate issues of national concern and should be rechristened the "international-and-interstate" clause or the "with-and-among" clause);
219. Douglas W. Kmiec, Rediscovering a Principled Commerce Power, 28 Pepp. L. Rev. 547, 548 (2001) (proposing that Commerce Clause should be understood to allow congressional regulation "to vindicate a well-defined national interest").
220. United States v. Morrison, 529 U.S. 598, 617-18 (2000).
221. See United States v. Lopez, 514 U.S. 549, 566 (1995) ("The Constitution . . . withhold[s] from Congress a plenary police power . . . .").
222. For examples of reluctance to upset the federal-state balance in other areas, see New York v. United States, 505 U.S. 144, 155 (1992) (expressing concern about Congress "invad[ing] the province of state sovereignty");
223. Parratt v. Taylor, 451 U.S. 527, 544 (1981) (interpreting 42 U.S.C. § 1983 so as not to interfere with the traditional province of state tort law).
224. Kmiec concedes that the "national interest" test is too "vague and manipulable" to operate as a clear rule, but nonetheless contends that his test would assist the judiciary in decisionmaking. Kmiec, supra note 143, at 561. Other scholars have observed that there is no clear definition of which areas are matters of traditional state concern.
225. See Choper, supra note 130, at 754 (arguing Supreme Court has failed to provide guidance in this area).
226. Cf. Morrison, 529 U.S. at 628 (Souter, J., dissenting) (noting Congress has a far greater institutional capacity to gather facts and make policy decisions than the Court).
227. See id. at 607 (majority opinion) (emphasizing enumerated limits on congressional power, not desirability of solving problem at state rather than federal level). One could apply a legal realist analysis to the Court's Commerce Clause cases and conclude that each case merely reflects the Court's policy judgments about the particular statute being challenged. But the task of the lower federal courts, at least, is to follow Supreme Court precedent Consequently, it is important to provide interpretations of the case law that reconcile these precedents around common constitutional principles, rather than merely ascribing the Court's decisionmaking to political whim.
228. See Gonzales v. Raich, 545 U.S. 1, 22 (2005) (noting congressional policy judgments are entitled to rational basis review rather than inquiry into whether policy is in national interest).
229. See Choper, supra note 130, at 736-37 (noting that using substantial effects test to define clear limits on congressional power is "remarkably difficult");
230. Kmiec, supra note 143, at 565 (arguing that substantial effects test is overbroad and should be abandoned);
231. Nelson & Pushaw, supra note 125, at 11 (stating that substantial effects test as well as Court's two other categories are "infinitely elastic").
232. Adler, supra note 74, at 753;
233. cf. Barnett, Foreword, supra note 91, at 744 (questioning whether any limits on national power are enforceable after Raich);
234. Craig M. Bradley, What Ever Happened to Federalism?, Trial, Aug. 2005, at 52, 52 (asserting that with Raich decision, "the Court strangled in its infancy the so-called federalism revolution that began a mere 10 years" earlier).
235. But see Ernest A. Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival After Gonzales v. Raich, 2005 Sup. Ct. Rev. 1, 3 (characterizing Raich as difficult case that "should not necessarily be seen as a portent that the Federalist Revival has ground to a halt").
236. See Adler, supra note 74, at 762 (arguing Raich "displaced judicial review in favor of the political safeguards of federalism").
237. But see Raich, 545 U.S. at 25-26 (reaffirming the judicial review exercised in Lopez and Morrison).
238. See Raich, 545 U.S. at 23 (distinguishing facial from as-applied challenge to congressional statute and stating " ' [w] here the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class' " (internal quotation marks omitted)
239. (quoting Perez v. United States, 402 U.S. 146, 154 (1971))).
240. See id. at 24 (emphasizing comprehensiveness of CSA).
241. See, e.g., Barnett, Foreword, supra note 91, at 744-45 (discussing whether as-applied challenges are viable after Raich);
242. David L. Franklin, Facial Challenges, Legislative Purpose, and the Commerce Clause, 92 Iowa L. Rev. 41, 43 (2006) (noting Raich "strongly suggests] that 'as-applied' challenges under the Commerce Clause will not receive a friendly reception at the Court");
243. Stuckey, supra note 90, at 2125 (arguing that when Raich applies, as-applied challenges "will inevitably fail");
244. Young, supra note 151, at 25 (contrasting Raich's reluctance to uphold as-applied challenge under Commerce Clause with Supreme Court's "strong preference for as-applied challenges in other areas").
245. See infra note 191.
246. John T. Parry, "Society Must Be [Regulated]": Biopolitics and the Commerce Clause in Gonzales v. Raich, 9 Lewis & Clark L. Rev. 853, 862 (2005);
247. cf. Adler, supra note 74, at 764 (questioning whether there is any limit to congressional power if Congress classifies conduct at a sufficiently high level of generality).
248. But see Barnett Foreword, supra note 91, at 747 (arguing that the Raich holding can be limited to the unique factual situation of a regulated market in a fungible commodity).
249. See Denning Sc Reynolds, Rulings and Resistance, supra note 61, at 1256 & n.18 (citing "fears of numerous critics" that Lopez and Morrison would lead to a major increase in opinions holding statutes unconstitutional).
250. Id. at 1262.
251. For a more complete review of how lower courts have applied Lopez and Morrison to a range of federal statutes, see Bittker & Denning, supra note 101, § 5.04[E]-[H]; id. at 1262-99;
252. Elizabeth S. Saylor, Federalism and the Family After Morrison: An Examination of the Child Support Recovery Act, the Freedom of Access to Clinic Entrances Act, and a Federal Law Outlawing Gun Possession by Domestic Violence Abusers, 25 Harv. Women's L.J. 57, 64-67, 76-92 (2002).
253. United States v. Spinello, 265 F.3d 150, 156 (3d Cir. 2001).
254. The Third Circuit's definition of economic activity in Spinello also runs afoul of the definition later used by the Court in Raich, which focused on participation in the production, exchange, and consumption of goods (and, perhaps, services). Gonzales v. Raich, 545 U.S. 1, 25 (2005);
255. see also infra Part III.A.1 (discussing distinction between economic and noneconomic activity).
256. See infra note 191 and accompanying text.
257. Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997).
258. The case is analyzed in detail in John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174 (1998).
259. See Nagle, supra note 164, at 178.
260. Babbitt, 130 F.3d at 1061 (Sentelle, J., dissenting)
261. (quoting Alex Kozinski, Introduction to Volume Nineteen, 19 Harv. J.L. & Pub. Pol'y 1, 5 (1995)).
262. See infra Part III.A.
263. See supra Part I.B.3.
264. This Note argues that the narrow exception reading of Raich is the best way to reconcile the Supreme Court's Commerce Clause cases.
265. See infra Part III.
266. See Stuckey, supra note 90, at 2127-28 (discussing lower court readings of Raich as applying to all Commerce Clause challenges to federal statutes).
267. For examples of lower courts relying on Raich to reject as-applied challenges, see, e.g., United States v. Davis, 473 F.3d 680, 682-83 (6th Cir. 2007) (rejecting as-applied challenge against Hobbs Act);
268. United States v. Stewart, 451 F.3d 1071, 1073-75 (9th CSr. 2006) (federal prohibition on machine gun possession);
269. United States v. Jeronimo-Bautista, 425 F.3d 1266, 1271 (10th Cir. 2005) (federal child pornography statute).
270. See supra notes 151-152 and accompanying text
271. See supra notes 151-157 and accompanying text
272. See Choper, supra note 130, at 742 ("The distinction between 'economic' or 'commercial' issues and 'political, social, cultural, and moral' matters is exceedingly blurred.");
273. Dral & Phillips, supra note 79, at 618 ("[T]he determination of what is economic is problematic in itself. . . .");
274. The Supreme Court, 2004 Term-Leading Cases, 119 Harv. L. Rev. 169, 174 (2005) ("[T]here is no principled basis for the distinction between economic and noneconomic activities.").
275. But see Nelson & Pushaw, supra note 125, at 11 (arguing that national uniformity is beneficial for economic regulation but detrimental for "social, cultural, and moral issues").
276. United States v. Morrison, 529 U.S. 598, 617 (2000).
277. Gonzales v. Raich, 545 U.S. 1, 25-26 (2005) (quoting Webster's Third New International Dictionary 720 (1966)).
278. This definition stakes out a middle ground between two possible extremes. The most expansive possible definition of "economic" would encompass all "rational choices," whether tied to market exchange or not See, e.g., Richard A Posner, Economic Analysis of Law 3 (7th ed. 2007) ("[E]conomics is the science of rational choice in a world-our world-in which resources are limited in relation to human wants."). Such a broad definition would provide little guidance in interpreting the Commerce Clause. The least expansive definition would limit "economic" to the exchange of goods, without including production or consumption.
279. See supra note 132 and accompanying text (discussing Barnett's narrow view of what constitutes "economic activity"). The Court's reliance on a middle ground definition of "economic" that accounts for all the stages of market-related activity resonates with historical Commerce Clause jurisprudence.
280. See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 229-30 (1824) (Johnson,J., concurring) (including productive labor as incident to the exchange of goods and therefore subject to congressional regulation);
281. infra note 180.
282. Contra United States v. Nascimento, 491 F.3d 25, 43 (1st Cir. 2007) (arguing racketeering is economic because it is motivated by greed).
283. For examples of economic criminal activity, see, e.g., Waucaush v. United States, 380 F.3d 251, 256 (6th Cir. 2004) (distinguishing violent crimes from economic crimes such as cigarette trafficking, consumer credit fraud, and gambling operations).
284. Raich, 545 U.S. at 25. The definition offered in Raich is partially incomplete, although it provides valuable insight into how one should interpret the Court's use of the word "economic." A more complete definition of economic activity would include the production and distribution of other goods and services in addition to commodities.
285. See, e.g., American Heritage Dictionary, supra note 44, at 566 (defining "economics" as having to do with the "production, distribution, and consumption of goods and services").
286. This is essentially the definition used by Nelson & Pushaw, supra note 125, at 107-08.
287. This Note's reading of the Supreme Court's Commerce Clause jurisprudence differs from Nelson and Pushaw's Commerce Clause proposal in that this Note's reading only employs the economic-noneconomic distinction when the regulated activity is intrastate, while permitting Congress to regulate any activity involving traffic across state lines. Nelson and Pushaw, on the other hand, contend that Congress should only have power to regulate interstate traffic if undertaken for business purposes, or by a common carrier. Id. at 109.
288. This Note's reading is closer to the Court's historic jurisprudence in this area than is Nelson and Pushaw's proposal. See supra note 127.
289. See United States v. Morrison, 529 U.S. 598, 611 (2000) ("[I]n those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor."). In general, the landmark Supreme Court cases upholding expansive views of the Commerce Clause have involved economic activity.
290. See Perez v. United States, 402 U.S. 146, 146-47 (1971) (allowing regulation and criminalization of extortionate credit transactions);
291. Katzenbach v. McClung, 379 U.S. 294, 304 (1964) (intrastate restaurant business);
292. United States v. Darby, 312 U.S. 100, 115 (1941) (employment conditions in manufacturing);
293. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (same). The primary exceptions are Raich and Wickard v. Filburn.
294. See discussion infra Part III.A.2.
295. See supra note 77 and accompanying text
296. Morrison, 529 U.S. at 613.
297. 317 U.S. 111 (1942) (upholding federal criminal prosecution of defendant who grew wheat for home consumption). In Lopez, Chief Justice Rehnquist attempted to reclassify Wickard as being a case that "involved economic activity in a way that the possession of a gun in a school zone does not." United States v. Lopez, 514 U.S. 549, 560 (1995).
298. This is probably an inaccurate characterization of Wickard, but the Court's holding in Lopez does not depend on reclassifying Wickard as a case about economic activity. Even allowing that the domestic wheat growing in Wickard was noneconomic, the rationale for allowing Congress to regulate this activity was that a failure to regulate home production would undercut the valid congressional attempt to regulate the interstate wheat market See Wickard, 317 U.S. at 128-29.
299. Raich, 545 U.S. at 18-19.
300. Id. Wickard's crop was wheat; Raich's was marijuana.
301. Id. at 18.
302. Scholars and courts have focused on Raich's statement that " '[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class,'" as evidence that as-applied challenges are likely to fail. Raich, 545 U.S. at 23 (quoting Perez v. United States, 402 U.S. 146, 154 (1971));
303. see United States v. Nascimento, 491 F.3d 25, 41 (1st Cir. 2007) (arguing that as-applied challenges are inappropriate after Raich);
304. supra note 155 (noting scholarly arguments that Raich signaled a preference for facial challenges). But this statement, in context, is a reference to the unique case of a comprehensive scheme that regulates a "quintessentially economic" class of activities and a subset of the larger class that was "an essential part of the larger regulatory scheme." Raich, 545 U.S. at 25, 27. When those circumstances are not present, Raich would not preclude an as-applied challenge.
305. See id. at 35 (Scalia, J., concurring) (emphasizing that congressional power to regulate intrastate activities only extends to cases where it is "necessary to make a regulation of interstate commerce effective").
306. Raich, 545 U.S. at 22 (holding Congress could regulate intrastate manufacturing and possession of marijuana because it had reason to believe failure to do so "would leave a gaping hole in the CSA");
307. United States v. Morrison, 529 U.S. 598, 615 (2000) (noting lack of congressional scheme governing any economic activity);
308. Lopez, 514 U.S. at 561 (finding ban on gun possession in schools was 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");
309. Wickard, 317 U.S. at 128-29 (concluding regulation of noneconomic wheat production was appropriate because necessary to protect legislative purpose in regulatory scheme governing wheat market).
310. See Lopez, 514 U.S. at 564-65 ("[I]f 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.").
311. One possible argument against this reasoning is that it is difficult to precisely define what sort of activity to classify as economic. See Choper, supra note 130, at 737-39 (criticizing economic-noneconomic criterion as having no clear limit). This criticism is addressed infra Part III.C.
312. This appears to be the reading with which both Justice O'Connor and Justice Thomas were concerned in their dissenting opinions in Raich. See Raich, 545 U.S. at 43 (O'Connor, J., dissenting) ("[T]he Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause - nestling questionable assertions of its authority into comprehensive regulatory schemes - rather than with precision.");
313. id. at 73 (Thomas, J., dissenting) (arguing that congressional power should not be made to "turn[ ] on the manner in which Congress packages legislation").
314. This has also been the frequent interpretation of academic commentators, see supra Part II.B., and the circuit courts, including the First Circuit in Nascimento, see supra Parts I.C.3, II.C.2.
315. See, e.g., Raich, 545 U.S. at 12-13 ("Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels.");
316. id. at 19 ("Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would . . . affect price and market conditions.");
317. id. at 28 ("The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entided to a strong presumption of validity.").
318. As a general rule, noneconomic activity will threaten to undercut congressional regulations of economic activity when it interferes with the market forces of supply and demand. Id. at 19 (noting that home production of marijuana could affect price and market conditions). While it is possible that there are other ways in which noneconomic activity might undercut regulation of interstate commerce, courts should probably be more willing to accept market-based arguments from the government than other "indirect" arguments of the sort rejected in Lopez. Unlike other indirect connections to interstate commerce, market-based arguments have been accepted by the Supreme Court in Wickard and Raich. Moreover, a strict focus on supply and demand issues reduces the possibility that the rationale for congressional regulation will be expanded beyond any constitutional limitation.
319. United States v. Nascimento, 491 F.3d 25, 42 (1st Cir. 2007).
320. The concurrence in Nascimento recognizes this fact. See id. at 52-53 (Boudin, C.J., concurring) (arguing that the case could have been decided on narrower grounds and refusing to join in the court's discussion of the extent to which Raich affects Lopez and Morrison).
321. Raich, 545 U.S. at 26-27.
322. Nascimento, 491 F.3d at 43 (noting that racketeering activity generally involves financial crimes such as loan-sharking).
323. On the issue of congressional intent to target criminal businesses rather than generalized criminal activity, see, e.g., Bradley, Analysis of RICO, supra note 45, at 840 (discussing congressional concern about various methods by which organized crime was infiltrating legitimate businesses as a key motivation for passage of RICO).
324. The Nascimento opinion acknowledges the lack of an integrated market for racketeering. See Nascimento, 491 F.3d at 42 (conceding that Raich was distinguishable because of this market-based argument, but claiming that this distinction was not important to the Raich majority). This appears to be a failure to adequately follow the Raich majority's reasoning, which expressly depends on market analysis to explain why regulation of noneconomic activity is appropriate under the CSA.
325. See supra Part III.A; see also Recent Cases, 121 Harv. L. Rev. 1961, 1965-66 (2008) ("There is no national market for racketeering, and leaving one instance of racketeering to be covered by other criminal laws will not make it more difficult to prevent or address other instances of racketeering.").
326. See Frank D'Angelo, Note, Turf Wars: Street Gangs and the Outer Limits of RICO's "Affecting Commerce" Rationale, 46 Fordham L. Rev. 2075, 2109 (2008) (arguing there is no evidence that "regulation over noneconomic intrastate activity is 'essential' to [RICO's] continued success").
327. See Raich, 545 U.S. at 12-13 nn.20-21 (identifying legislative findings that control of intrastate activity was essential to control of the interstate commerce in narcotics).
328. Note that this argument is not a policy-based argument of the sort criticized in supra Part II.A.3. The argument is rooted in a textual understanding of the Commerce Clause as directed at interstate and economic activity and a willingness to sever applications of federal statutes that go beyond this textual understanding. The severability of particular applications of a criminal statute is a longstanding component of constitutional law that is rooted in constitutional text and structure, not in a court's policy preferences. See Raich, 545 U.S. at 72-73 (Thomas, J., dissenting) (discussing as-applied challenges to congressional legislation).
329. Raich, 545 U.S. at 32 (majority opinion).
330. This argument about an integrated market justifying congressional power to regulate even intrastate activity is similar to the reasons the Court gave for permitting prosecution of local loan sharks. See Perez v. United States, 402 U.S. 146, 155-56 (1971) (discussing legislative history indicating that monies from intrastate loan sharking flowed back and forth to interstate organized criminal enterprises). Loan sharking is an easier case for congressional regulation than medical drug possession and use because all credit transactions are by definition economic activity, but the reasoning in the two cases is similar. Both Perez and Raich relied on congressional findings that intrastate activity was tied to the interstate market that was the primary target of the statute.
331. See Rakh, 545 U.S. at 12 & n.20 (noting congressional findings about infeasibility of distinguishing between interstate and intrastate distribution of controlled substances);
332. Perez, 401 U.S. at 147 n.1 (noting congressional findings about necessity of regulating intrastate extortionate credit transactions in order to ensure effective regulation of interstate extortionate credit transactions).
333. See Waucaush v. United States, 380 F.3d 251, 256-57 (6th Cir. 2004) (holding that minimal effect on commerce is insufficient and the government has obligation to demonstrate entity's substantial effect on interstate commerce).
334. This possibility finds support in the Morrison Court's claim that "thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature." United States v. Morrison, 529 U.S. 598, 613 (2000). Under this view, if a case of noneconomic intrastate crime does not fit within the Wickard/Raich exception, then federal prosecution is presumptively invalid.
335. Jones v. United States, 529 U.S. 848, 853 (2000). The Jones Court's reliance on the canon of constitutional avoidance for its narrow holding leaves some uncertainty about the status of prior case law applying the arson statute.
336. Id. at 858. Subsequent criminal defendants have argued that Jones implicitly overruled the Supreme Court's earlier case law permitting congressional regulation of arson against commercial buildings, but these arguments have been unsuccessful in the courts.
337. See, e.g., United States v. Logan, 419 F.3d 172, 180-81 (2d Cir. 2005).
338. United States v. Nascimento, 491 F.3d 25, 43-44 (1st Cir. 2007).
339. This standard would probably also preclude federal prosecution of crimes targeting commercial activity that was merely intrastate, unless regulation of the crime in question was an essential part of a congressional regulatory scheme. See United States v. McFarland, 311 F.3d 376, 393-94 (5th Cir. 2002) (en banc) (Garwood, J., dissenting) (arguing robbery of small local retailers that did not engage in interstate commerce was beyond congressional power under Commerce Clause).
340. Gerard E. Lynch, RICO: The Crime of Being a Criminal, Parts I & II, 87 Colum. L. Rev. 661, 715 n.232 (1987).
341. See Waucaush v. United States, 380 F.3d 251, 256 (6th Cir. 2004) (discussing cases upholding federal authority to prosecute crimes against businesses engaged in interstate commerce as example of substantial effect burden).
342. See infra notes 220-225 and accompanying text (discussing Commerce Clause implications of other criminal statutes).
343. Such jurisdictional hooks are common in federal criminal statutes. See, e.g., 18 U.S.C. § 922(g) (2000) (forbidding felons from possessing a firearm "in or affecting commerce," or receiving a firearm that has traveled in interstate commerce);
344. U.S.C. § 1952 (criminalizing interstate travel in furtherance of certain types of defined illegal business activity). These types of jurisdictional provisions have been accepted by the courts.
345. See Scarborough v. United States, 431 U.S. 563, 564 (1977) (upholding prosecution of defendant under felon-in-possession statute upon "proof that the possessed firearm previously traveled in interstate commerce");
346. supra notes 18-21 and accompanying text (discussing travel across state lines principle).
347. The evidence indicated that one member of the Stonehurst gang had traveled across state lines to purchase a firearm. United States v. Nascimento, 491 F.3d 25, 45 (1st Cir. 2007).
348. Id. at 52 (Boudin, C.J., concurring). Read literally, Judge Boudin's concurrence says that federal prosecution is permissible if a jury finds that the criminal enterprise "affect[ed] interstate commerce," without any reference to whether the effect is substantial.
349. Id. at 53. This reasoning is flatly contradicted by United States v. Lopez, 514 U.S. 549, 559 (1995): [A]dmittedly, our case law has not been clear whether an activity must "affect" or "substantially affect" interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause . . . . We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity "substantially affects" interstate commerce. One way to interpret Judge Boudin's concurrence is that it argues that RICO's broad language makes for a de facto regulation of participation in the interstate firearms market, and thus the statute is akin to the felon-in-possession statute or other federal statutes that criminalize certain types of participation in interstate commerce.
350. Nascimento, 491 F.3d at 52 (Boudin, C.J., concurring) (comparing RICO with felon-in-possession statute, federal car-jacking statute, and mail fraud statute). This reasoning is problematic. Because each of the other statutes is tied directly to the criminal's use of the commercial good itself - the gun, car, or mailing-the analogy to RICO is strained.
351. See United States v. Dorris, 236 F.3d 582, 586 (10th Cir. 2000) (noting felon-in-possession statute "addresses items sent in interstate commerce").
352. Likewise, after Lopez, Congress amended the Gun-Free School Zones Act to criminalize possession of a "firearm that has moved in or that otherwise affects interstate commerce" near a school zone. 18 U.S.C. § 922(q)(2). The current statute has been upheld as constitutional. E.g., United States v. Danks, 221 F.3d 1037 (8th Cir. 1999) (per curiam). Commentators have raised concerns about the consistency of the amended statute with the Supreme Court's jurisprudence.
353. See Robert J. Pushaw, Jr., Does Congress Have the Constitutional Power to Prohibit Partial-Birth Abortion?, 42 Harv. J. on Legis. 319, 332 n.93 (2005) ("[I]f the addition of such boilerplate language is sufficient to overcome the Lopez barrier, then that case will have little practical impact");
354. Seth J. Safra, Note, The Amended Gun-Free School Zones Act: Doubt as to Its Constitutionality Remains, 50 Duke L.J. 637, 640 (2000) (arguing "grave doubt" exists as to constitutionality of amended GFSZA).
355. In the context of another congressional power, the spending power, the Supreme Court's use of clear statement rules has been described as "the only meaningful constraint" on congressional overreaching. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 621 (1992).
356. See Merrill, supra note 30, at 828 (discussing how clear statement rules could foster cooperation between courts and Congress in interpreting extent of commerce power).
357. Id. at 834;
358. see also Robert A. Mikos, The Populist Safeguards of Federalism, 68 Ohio St L.J. 1669, 1722-23 (2007) (defending argument that federal officials and courts should "wait for a clear statement from Congress before assuming some authority traditionally exercised by the states").
359. For example, Congress has chosen to regulate (by prohibiting) the interstate markets in machine guns, see Firearm Owners' Protection Act § 102(9), 18 U.S.C. § 922(o)(1), and child pornography, see Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2251. This Note's proposed test would permit application of these statutes even to intrastate noneconomic possession of the regulated items.
360. For further discussion of the constitutional challenges to these statutes, see generally Lauren Bianchini, Comment, Homegrown Child Pornography and the Commerce Clause: Where to Draw the Line on the Intrastate Production of Child Pornography, 55 Am. U. L. Rev. 543 (2005);
361. Leslie Wepner, Comment, The Machine Gun Statute: Its Controversial Past and Possible Future, 75 Fordham L. Rev. 2269 (2007).
362. See supra notes 82-87 and accompanying text.
363. See Bradley, Federalism, supra note 53, at 585 (arguing such a hypothetical statute would be unconstitutional). This is not to say that Congress could never authorize federal prosecution of arson of a residential home. For example, if Congress enacted a statutory scheme regulating the insurance industry, and included provisions criminalizing home arson for the purpose of insurance fraud, the Raich analysis would permit such prosecutions as rationally necessary to the underlying regulatory scheme.
364. The close reading of Raich advocated by this Note raises a more fundamental question about whether the federal arson statute is ever constitutional. Arson is quintessentially a local, noneconomic activity, and thus under Morrison is not subject to aggregation for purposes of finding substantial effects. The argument in favor of permitting some congressional regulation might be that some individual acts of arson, when committed against buildings used for business purposes, have a sufficiently substantial effect on interstate commerce by themselves to support the application of congressional power. See supra Part III.C.1 (discussing the possibility that individual crimes could be held to have substantial effects on interstate commerce). But this Note's reading of Raich suggests that the issue remains open to challenge, and an unexplored area of analysis is what degree of effects rise to the level of "substantial" after the aggregation of effects is forbidden for noneconomic crimes. There are also sound federalism reasons for questioning the substitution of congressional policy judgments for state policy judgments in purely localized crimes.
365. See Jones v. United States, 529 U.S. 848, 859 (2000) (Stevens, J., concurring) (noting concerns about disparate treatment when federal and state arson law overlap);
366. Bradley, Federalism, supra note 53, at 591 (noting no persuasive reason why federal government needs to prosecute routine local crimes) ;
367. see also infra notes 237-240 and accompanying text (identifying criticisms of overly expansive federal criminal power).
368. 18 U.S.C. § 1951.
369. See, e.g., United States v. Bailey, 227 F.3d 792, 797-98 (7th Cir. 2000) (upholding robbery conviction against as-applied challenge based on theory that robbery depleted victim's assets and made him less able to purchase goods in
370. Currendy, almost all circuits permit federal prosecution of any robbery having a minimal effect on interstate commerce, rather than requiring proof of a substantial effect See United States v. Baylor, 517 F.3d 899, 901-03 (6th Cir. 2008) (collecting cases finding Hobbs Act requires only minimal effect on interstate commerce). The one partial exception appears to be the Fifth Circuit, which has evenly split on the subject United States v. McFarland, 311 F.3d 376, 377 (5th Cir. 2002) (en banc) (per curiam).
371. See Bradley, Federalism, supra note 53, at 592-98 (collecting and analyzing Commerce Clause challenges to Hobbs Act prosecutions, concluding that courts should not permit federal jurisdiction in cases of robbery or extortion of private individuals);
372. see also id. at 607-09 (applying similar analysis to federal carjacking statute).
373. See, e.g., Blumm & Kimbrell, supra note 98, at 496 ("We think the Court's recent embracing of the comprehensive scheme rationale immunizes the ESA take provision from the sort of as-applied attacks property rights activists have previously brought against its application.").
374. The Supreme Court has twice in the past decade heard as-applied Commerce Clause challenges to the Clean Water Act (CWA), and each time it has relied on the canon of constitutional avoidance to adopt a narrow reading of the statute consistent with the view put forth in this Note. See Rapanos v. United States, 547 U.S. 715, 737-39 (2006) (citing Commerce Clause concerns to support a reading of CWA as not applying to lands with intermittent flows of water);
375. Solid Waste Agency v. U.S. Army Corps of Eng're, 531 U.S. 159, 173-74 (2001) (noting same concerns to support reading CWA as not applying to wedands not adjacent to navigable waters).
376. For a different view on the Commerce Clause and environmental regulation, see Bradford C Mank, After Gonzales v. Raich: Is the Endangered Species Act Constitutional Under the Commerce Clause?, 78 U. Colo. L. Rev. 375, 455-58 (2007) (arguing that Raich's reasoning affirms constitutionality of Endangered Species Act and other environmental regulations).
377. United States v. Morrison, 529 U.S. 598, 614 (2000) ("[T]he existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.").
378. See supra note 192 (discussing Raich's reliance on congressional findings that intrastate narcotics distribution threatened workability of CSA if left unregulated).
379. Some proposed applications of a congressional regulatory scheme may be sufficiently straightforward so that no statement from Congress, whether in the statute or in the legislative history, is necessary. Cf. Gonzales v. Raich, 545 U.S. 1, 28 (2005) ("One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana . . . locally cultivated for personal use . . . may have a substantial impact on the interstate market for this extraordinarily popular substance.").
380. For example, passage of the CSA was accompanied by specific legislative findings that noneconomic production and consumption of narcotics could be diverted into the interstate market and interfere with the overall regulatory scheme. See supra note 94 and accompanying text (noting difficulties in maintaining distinction between intrastate and interstate market for drugs).
381. See supra note 173 and accompanying text.
382. This definition is similar to the proposal of Nelson & Pushaw, supra note 125, at 9 (advocating two-part test permitting Congress to regulate only activity that is "commerce" and that implicates more than one state). However, the test derived from this definition would be different from the test advocated by Nelson and Pushaw. The two-part analysis advocated by this Note permits certain regulation of intrastate noneconomic activity, such as growing wheat for home use. This Note's test also avoids Nelson and Pushaw's "protective principle,"
383. id. at 147-49, which provides few ultimate limits on the range of congressional regulation. The difference is subtle but significant Nelson and Pushaw would permit congressional regulation of noneconomic activity to protect persons and entities engaged in commerce. This Note contends that the Supreme Court's cases have carved out a much more narrow exception, only permitting congressional regulation of intrastate noneconomic activity to protect a broader congressional regulatory scheme which governs interstate commerce.
384. For example, loan sharking is economic activity, as it provides a good - an extension of credit - that is commonly traded in the marketplace. See Perez v. United States, 402 U.S. 146, 147-48 (1971) (discussing defendant's loan sharking operation). The same is true of prostitution, gambling, and narcotics trafficking, although the goods and services involved in these activities are usually prohibited from sale altogether. A violent crime, however, such as assault or robbery, is not economic activity, as no good or service is being exchanged. This is true regardless of the motivations of the actors in any of these activities. A drug dealer may be motivated primarily by desire for prestige in his gang, but that does not mean that selling drugs is noneconomic activity. Likewise, a highwayman may be motivated purely by desire for money, but that does not make a stickup an economic transaction in the way the Court has defined the term.
385. See supra notes 175-180 and accompanying text.
386. Extension of the Commerce Clause analysis could have dramatic effects on other areas of law, such as environmental law, as well. Because most of the Supreme Court's major Commerce Clause cases in recent years have dealt with criminal law, it is more difficult to predict how the test proposed in this Note would map onto other major areas of federal law.
387. Limitation of federal criminal power is a longstanding aspect of constitutional law. See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 426 (1821) (Marshall, C.J.) ("Congress has . . . no general right to punish murder committed within any of the States.");
388. The Federalist No. 17, at 118 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (contrasting federal government's power to regulate "[c]ommerce, finance, negotiation, and war" with state governments' power over "[t]he administration of private justice between the citizens of the same State").
389. Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. Cal. L. Rev. 643, 646 (1997).
390. Some prosecutors have deliberately exploited this disparate treatment, such as Rudy Giuliani, who as U.S. Attorney for the Southern District of New York instituted a "federal day" once a week during which drug dealers would be prosecuted for federal rather than state offenses, stating a desire to create a "Russian roulette effect" for drug dealers. Ashwini Jayaratnam, Prosecuting Stock-Option Backdating: The Ethics of Enforcement Techniques, 20 Geo. J. Legal Ethics 755, 764 (2007).
391. See Task Force, supra note 56, at 18 ("Increased federalization is rarely, if ever, likely to have any appreciable effect on the categories of violent crime that most concern Americans . . . ." (emphasis omitted));
392. John S. Baker, Jr., State Police Powers and the Federalization of Local Crime, 72 Temp. L. Rev. 673, 678-80 (1999) (noting, inter alia, that over ninety-five percent of federal prosecutions in 1997 involved federal statutes that duplicated state statutes);
393. see also Bradley, Anti-Racketeering, supra note 7, at 690-92 (noting that expansion of federal racketeering prosecutions has not succeeded in fight against organized crime and calling for a narrowing or even abolishing of RICO).
394. Brickey, supra note 42, at 1173.
395. But cf. Susan R. Klein, Independent-Norm Federalism in Criminal Law, 90 Cal. L. Rev. 1541, 1541-43 (2002) (acknowledging value of local control over criminal law but arguing most federal measures pose little threat to this value).
396. See United States v. Lopez, 514 U.S. 549, 576 (1995) (Kennedy, J., concurring) ("Though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one
397. ."); The Federalist No. 51 (James Madison), supra note 236, at 323 ("In the compound republic of America ... a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.").
398. U.S. Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) ("The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.").