Have No Fear (“Of Piling Inference Upon Inference”): How United States v. Comstock Can Save the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act

Margaret K. O'Leary

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I. Introduction

In United States v. Comstock,1 the Supreme Court upheld under the Necessary and Proper Clause Congress’s creation of a post-sentence federal civil-commitment scheme for sexually dangerous individuals in federal custody.  Comstock sparked a number of questions, including what effect the fungible five-consideration test the Court used to uphold the scheme would have in future cases interpreting the Necessary and Proper Clause.  Comstock also coincides with a growing policy debate over the proper reach of federal legislation and the uncertainty surrounding one of its major sources of authority, the Commerce Clause.  The uncertainty in the Commerce Clause doctrine is problematic for federal criminal legislation, and in particular federal hate-crime laws, which, because they target conduct already punishable under state law, raise heightened federalism concerns.  These developments beg the question of whether the newly enacted federal hate-crime law, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA), which extends protection to those victimized on account of gender, gender identity, sexual orientation, and disability, in addition to other categories, may be ripe for challenge.

This Note explores whether, if a court should find that the HCPA does not pass constitutional muster under the Commerce Clause alone, Comstock’s expansive interpretation of the Necessary and Proper Clause in conjunction with the Commerce Clause may provide an alternate avenue of constitutionality for the HCPA. Applying the five-consideration Comstock test to the HCPA as an exercise of the Commerce Power, this Note concludes that four of the five considerations ultimately weigh in favor of the statute’s constitutionality.

II. Commerce Clause Doctrine and Federal Criminal Law

In order to understand Comstock’s potential effect on the HCPA, an understanding of the rise of federal criminal law and its sources of constitutional authority, including the Commerce Clause, is helpful.  Though criminal law remains the traditional province of the states, federal criminal law began to expand markedly in the early twentieth century because of improvements in interstate transportation and enforcement of Prohibition’s ban on the production, shipment, and sale of alcohol.  Today, by some estimates there are more than 3,200 federal criminal laws.

The Constitution provides for almost no explicit authority for Congress to enact criminal laws. But early on, courts understood Congress’s enumerated powers to include the power to pass criminal laws to enforce laws passed pursuant to the enumerated powers.

Two major sources of constitutional authority for the passage of federal criminal laws are the Necessary and Proper Clause and the Commerce Clause.  The Necessary and Proper Clause gives Congress the authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”2 In this context, the Supreme Court has interpreted “necessary” to mean not “absolutely necessary” but “appropriate.”

The Commerce Clause allows Congress to “regulate Commerce . . . among the several States.”3 For much of the twentieth century, the Supreme Court interpreted Congress’s Commerce power broadly.  Beginning in 1995 with United States v. Lopez,4 though, the Supreme Court issued a number of decisions restricting the scope of the Commerce Clause and introducing uncertainty into the doctrine. For example, in Lopez, the Court struck down a law prohibiting the knowing possession of firearms in school zones. The Court reasoned that the statute did not qualify under the “substantially affects commerce” category of permissible Commerce Clause regulation because the statute was criminal in nature, lacked a jurisdictional element linking the activity in question to interstate commerce, and contained no explicit congressional findings demonstrating the effect of knowing possession of intrastate firearms on interstate commerce.  Again in 2000, the Court limited the reach of the Clause in United States v. Morrison,5 in striking down another federal statutory provision related to criminal conduct, the civil liability remedy of the Violence Against Women Act (VAWA).  Though Congress had findings in the VAWA attesting to the effect of gender-motivated violence had on interstate commerce by increasing violent crime, the Court rejected these findings on the ground that they demonstrated the same problematic reasoning of Lopez, whereby Congress could point to virtually any violent act in the aggregate as affecting interstate commerce.  According to the Court, approving such a but-for causal chain of inferences under the Commerce Clause would permit Congress to legislate widely in areas of traditional state concern such as the criminal law and domestic matters.  Most importantly for an analysis of the HCPA, which prohibits crimes motivated not only by the victim’s race, national original and ethnicity, but also gender, gender identity, and sexual orientation, the Court specifically noted that Congress could not aggregate gender-motivated violence to show a substantial effect on interstate commerce.

The last major case affecting the interpretation of the Commerce Clause was Gonzales v. Raich6 in 2005.  Here, however, the Court appeared to cut back on Lopez and Morrison by upholding the application of the federal Controlled Substances Act to prohibit the possession of homegrown marijuana for legal medical purposes under California state law.  Relying on earlier precedents than Lopez and Morrison, the Court concluded this application came within the scope of the Commerce Clause because it was part of an “economic ‘class of activities’ that has a substantial effect on interstate commerce”7 and involved activities that without regulation would affect the national market.

III. United States v. Comstock and the HCPA

The preceding cases demonstrate the uncertainty in the Commerce Clause doctrine generally and in particular its application to the HCPA as a statute targeting gender-motivated violence in light of Morrison.  Therefore, because the Commerce Clause alone may not adequately support the constitutionality of the HCPA, it makes sense to consider how and if Comstock’s five-consideration test interpreting the Necessary and Proper Clause may change this result.

The relevant portion of the HCPA for this Note’s analysis is section 249(a)(2), which prohibits willfully causing or attempting to cause bodily injury to any person because of, among other categories, actual or perceived gender, sexual orientation, or gender identity, when the action occurs in connection with one of a number of interstate circumstances, such as the crossing of state lines or the use of a channel of interstate commerce, or when the conduct otherwise affects interstate commerce.

In Comstock, the Court upheld the Adam Walsh Child Protection and Safety Act, which created a federal civil-commitment scheme for sexually dangerous persons in federal custody who were about to be released.  The Court reasoned the scheme was within Congress’s power to legislate under the Necessary and Proper Clause based on the following five considerations: “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in th[e] arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.”8

Applying the Comstock test to the HCPA requires the resolution of a few threshold questions.  For example, courts applying the Comstock test to the HCPA will have to choose whether to analyze the HCPA as an exercise of the Necessary and Proper Clause in conjunction with the Commerce Clause or in conjunction with an implied power.  Though in Comstock, the Supreme Court analyzed the civil-commitment scheme as an exercise of the Necessary and Proper Clause and Congress’s implied power to act as a custodian over federal prisoners, it is more likely that courts will analyze section 249(a)(2) as an exercise of the Commerce Power for reasons developed more fully in the Note. Thus, the Note applies each of the five factors and the considerations underlying them in turn to the HCPA.  It predicts that the first four factors, the “breadth” of the Necessary and Proper Clause, history of federal involvement in the arena, sound reasons for the statute’s enactment in light of the government’s custodial interest, and the accommodation of state interests, will all weigh in favor of the constitutionality of section 249(a)(2) of the HCPA. The “narrow scope” factor will probably weigh against the constitutionality of the statutory provision, though this will not be enough to overcome the weight of the other four factors.

Regarding the first consideration in the Comstock test, the Court noted the breadth of the Necessary and Proper Clause permits Congress to make all legislation that is appropriate to or displays a means-end relationship with executing an enumerated power. It also noted that Congress should be entitled to considerable deference in its “choice of means” in executing a remedial scheme.  The Court also explicitly rejected the argument that to be valid, any exercise of congressional power may be no more than one step from an enumerated power.

Applied to section 249(a)(2) of the HCPA, the breadth factor will likely support the statute’s constitutionality.  In Comstock, the Court inferred Congress’s power to create a federal civil-commitment scheme from Congress’s implied power to pass criminal laws and thus also its implied power to create and administer prisons for violators of those laws.  This validation of Congress’s implied power to pass criminal laws under the Necessary and Proper Clause would similarly also seem to work in the HCPA’s favor as a criminal statute.  But because courts will likely avoid applying the “breadth factor” in such a way that it always mechanically supports criminal statutes, they will probably also discount the weight of this factor in subsequent Comstock analyses.

The second consideration in the Comstock test, the long history of federal involvement in the arena, should also count toward the provision’s constitutionality.  Like the Adam Walsh Child Protection and Safety Act and civil commitment, the HCPA follows a sustained history of federal involvement dating back to the nineteenth century in the field of hate-crime legislation.  The outcome of the second factor may change, however, if courts consider not only the relevant field of federal involvement, but also the corresponding degree of state involvement in the arena of hate-crime regulation. Though the Comstock majority did not consider the level of corresponding state involvement in its analysis, this factor was a concern to the dissenting justices. Thus, with respect to a different statute where the corresponding degree of state involvement is significant, the application of this factor may change.

The third consideration underlying Comstock was that Congress reasonably extended the existing civil-commitment scheme to cover sexually dangerous individuals in federal custody through the statute at issue in light of the federal government’s custodial interest in safeguarding the public from harm posed by those in federal custody. The extension of the civil-commitment scheme to sexually dangerous persons about to be released from federal custody was also a reasonably adapted exercise of Congress’s custodial power over federal prisoners, given that the failure to provide for civil commitment in such cases would sometimes result in the release of those individuals into the public.

Though the application of this factor to section 249(a)(2) of the HCPA is less straightforward than the others, it will likely also weigh in favor of the statute’s constitutionality. One question arising from the application of this factor is what exactly the “reasonably adapted” requirement means in terms of the relationship between the goals of the statute and the congressional power that authorizes it. While the Comstock majority appeared to treat “reasonably adapted” as synonymous with “means-end” rationality, Justice Kennedy in his concurrence noted the inconsistency of this approach with the Court’s past Commerce Clause precedents, which required a “tangible link” between the activity targeted by the statute and interstate commerce.9 Another wrinkle in applying this factor stems from the Court’s treatment of the relationship between gender-motivated violence and interstate commerce in Morrison.  There, in striking down the civil-remedy provision for gender-motivated violence in the VAWA as beyond the scope of the Commerce Clause, the Court emphasized that gender-motivated violence could not be aggregated to show a substantial effect on interstate commerce because this would effectively destroy the distinction between “what is truly national and what is truly local.”10 Thus, the Court disregarded the congressional findings demonstrating the effect of gender-motivated violence on interstate commerce precisely because they would permit such a problematic chain of inferences.  As was the case with the VAWA civil-remedy provision, justifying section 249(a)(2) of the HCPA would require reliance on a similar chain of inferences connecting gender-motivated violence to interstate commerce to show that the statute satisfied Comstock’s “reasonably adapted” requirement.

But in spite of this aspect of Morrison’s reasoning, the “reasonably adapted” prong may still weigh in favor of the HCPA. The objection to aggregating gender-motivated violence—that it would destroy the distinction between the truly national and the truly local—is premised on the notion that federalism requires mutually exclusive and separate spheres of state and federal legislation.  And yet, this concept of federalism, while appealing for its simplicity in theory, fails to account for the steady expansion over time of the federal law into areas of traditional state sovereignty, such as criminal and family law. Thus, it seems unlikely that courts will rely too heavily on the “ national/local” rationale in deciding whether this factor weighs for or against the constitutionality of the HCPA.

The fourth consideration in the Comstock test—the degree to which the statute accommodates state interests—will probably also weigh in favor of the HCPA. Though reasonable arguments exist against the statute’s constitutionality, these will probably not be persuasive because of, again, their reliance on a notion of separate spheres of state and federal action that has had less traction in recent years. Even if courts should rely on this traditional notion of separate spheres of state and federal action, the Comstock test frames the accommodation inquiry in terms of the specific statute, and not the legislative field more generally. This suggests that the appropriate degree of accommodation of state interests may vary from statute to statute, even between two statutes in the same field.  Moreover, given the current acceptance of overlapping state and federal prosecutions for the same conduct embodied in the Double Jeopardy Clause’s dual sovereignty doctrine, there may be less need for accommodation of state interests with respect to hate-crime statutes.  Thus, this factor will likely weigh in favor of the HCPA.

The last factor in the Comstock test, the “narrowness” of the statute, is the most difficult to construe in the HCPA’s favor.  In Comstock, the Court cited the fact that the federal government had sought civil commitment in only a small number of cases relative to the total number of federal prisoners as evidence of the statute’s narrowness.  An analogous “narrowness” argument in favor of section 249(a)(2) of the HCPA would be difficult to make for two reasons. First, unlike the statute in Comstock, which merely subjected those already in federal custody to civil commitment, the HCPA, by broadening the definition of a federal hate crime brings potentially more people into federal custody and the federal criminal justice system..  Second, some evidence suggests that the inclusion of the new categories of protected persons in the HCPA might result in increased reporting of hate crimes and thus also hate-crime prosecutions.  Thus, the “narrowness” factor does not favor the HCPA as clearly as the civil-commitment scheme in Comstock.

IV. Conclusion

Comstock leaves some important questions unanswered; most importantly, whether and how it will be applied in subsequent cases. This question is all the more pressing in light of the current policy debates over federal legislative power and the uncertainty surrounding the Commerce Clause as one of the key provisions defining its constitutional scope.

Applying Comstock to the HCPA is a useful exercise for recognizing the gaps left by Comstock and predicting how courts may fill them.  Though the Comstock test has not been extensively applied, the five factors weigh toward the constitutionality of the HCPA as an exercise of Congress’s Commerce Power in conjunction with the Necessary and Proper Clause.  While the “narrowness” factor is problematic for the HCPA, the other four factors—the breadth of the Necessary and Proper Clause, history of federal involvement in the arena, the “sounds reasons” for the statute’s enactment and its “reasonably adapted” nature, and the statute’s accommodation of state interests all suggest the statute’s constitutionality. Thus, this Note’s analysis provides firmer constitutional footing for the HCPA, as well as a start for understanding the greater implications of the Comstock decision.

Acknowledgments:

Margaret K. O’Leary is a 2012 graduate of Cornell Law School.

This essay is based on Margaret K. O’Leary, Have No Fear (“Of Piling Inference Upon Inference”): How United States v. Comstock Can Save the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 97 CORNELL L. REV. 931 (2012).

Copyright © 2013 Cornell Law Review.

  1. 130 S. Ct. 1949 (2010).
  2. U.S. Const. art. I, § 8, cl. 18.
  3. U.S. Const. art. I, § 8, cl. 3.
  4. 514 U.S. 549 (1995).
  5. 529 U.S. 598 (2000).
  6. 545 U.S. 1 (2005).
  7. See id. at 17–18, 32–33.
  8. United States v. Comstock, 130 S. Ct. 1949, 1965 (2010).
  9. Id. at 1967 (Kennedy, J., concurring).
  10. Morrison, 529 U.S. at 617–618.

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