United States v. James Hill, III

Like the majority, I believe that the proper outcome in this case naturally flows from the Supreme Court's Commerce Clause precedent and the terms of 18 U.S.C. § 249 (a)(2)(B)(iv)(I). Unlike the majority, I conclude that Congress' power under the Commerce Clause does not permit Hill's prosecution under that statute. This is so for two principal reasons. First, unlike the other provisions of § 249(a)(2)(B) -and, indeed, unlike "jurisdictional elements" in other statutes- § 249(a)(2)(B)(iv)(I) does not limit the class of activities being regulated to acts that fall under Congress' Commerce Clause power. Second, the root activity § 249(a)(2) regulated in this case-a bias-motivated punch-is not an inherently economic activity and therefore not within the scope of Congress' Commerce Clause authority. For the reasons expounded below, I would affirm the district court's decision to vacate Hill's conviction and respectfully dissent.

I.

A.

The district court held that § 249(a)(2) was unconstitutional as applied to Hill in this case. I agree. And while my analysis of § 249(a)(2)(B)(iv)(I) would likely implicate other prosecutions brought under this particular provision, it is sufficient in this case to determine that the statute operated in a way that was unconstitutional as applied to Hill. See Seling v. Young , 531 U.S. 250 , 271, 121 S.Ct. 727 , 148 L.Ed.2d 734 (2001) ("[A]n 'as-applied' challenge is a claim that a statute, by its own terms, infringes constitutional freedoms in the circumstances of a particular case." (alterations, emphasis, and internal quotation marks omitted)).

B.

"[T]he Constitution creates a Federal Government of enumerated powers," reserving, among other functions, general police powers to the sovereign States. United States v. Lopez , 514 U.S. 549 , 552, 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995). An enumerated power the Constitution specifically delegates to Congress is the ability to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. Art. I, § 8, cl. 3. This case implicates Congress' power to regulate commerce "among the several States." Id. The Supreme Court has recognized that this power to regulate interstate commerce consists of "three broad categories": first, "the use of the channels of interstate commerce"; second, "the instrumentalities of interstate commerce, or persons or things in interstate commerce"; and third, "those activities having a substantial relation to interstate commerce, i.e. , those activities that substantially affect interstate commerce." Lopez , 514 U.S. at 558-59 , 115 S.Ct. 1624 (citation omitted). This case involves only the third category: "activities that substantially affect interstate commerce." Id. at 559 , 115 S.Ct. 1624 .

When "a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute" does not deprive Congress of the ability to regulate that activity. Gonzales v. Raich , 545 U.S. 1 , 17, 125 S.Ct. 2195 , 162 L.Ed.2d 1 (2005) (quoting Lopez , 514 U.S. at 558 , 115 S.Ct. 1624 ). It follows from this principle that legislation regulating activities substantially affecting interstate commerce is deemed a proper exercise of Congress' Commerce Clause power even when the statute's scope regulates purely intrastate economic activity, Lopez, 514 U.S. at 559-60 , 115 S.Ct. 1624 , but only so long as the regulated activities "are part of an economic 'class of activities' that have a substantial effect on interstate commerce," Raich , 545 U.S. at 17 , 125 S.Ct. 2195 ; Wickard v. Filburn , 317 U.S. 111 , 125, 63 S.Ct. 82 , 87 L.Ed. 122 (1942) ("[E]ven if [an] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce ...."). The Supreme Court has permitted such aggregation of individual instances to create the requisite substantial effect on interstate commerce "only where [the regulated] activity is economic in nature." Taylor v. United States , --- U.S. ----, 136 S. Ct. 2074 , 2079-80, 195 L.Ed.2d 456 (2016) (quoting United States v. Morrison , 529 U.S. 598 , 613, 120 S.Ct. 1740 , 146 L.Ed.2d 658 (2000) ).

In determining whether a statute substantially affects interstate commerce, the Supreme Court has looked to four factors: (1) Is the regulated activity inherently economic?; (2) Are there legislative findings that reveal why something that does not appear to substantially affect interstate commerce actually does so?; (3) Does the statute contain a jurisdictional element that limits the statute's reach to acts that "have an explicit connection with or effect on interstate commerce"?; and (4) Is the link between the regulated activity and interstate commerce attenuated? Lopez , 514 U.S. at 559-63 , 115 S.Ct. 1624 ; see Morrison , 529 U.S. at 610-17, 120 S.Ct. 1740 .

II.

A.

A distinguishing factor between this statute and those at issue in Lopez and Morrison is that § 249(a)(2)(B) includes a so-called "jurisdictional element" purporting to require a connection between the regulated activity-here, bias-motivated assaults-and Congress' Commerce Clause power. In Lopez and Morrison , the Supreme Court held that the presence of a jurisdictional element "would ensure, through case-by-case inquiry, that the [activity being regulated] affects interstate commerce." Lopez , 514 U.S. at 561 , 115 S.Ct. 1624 ; see also Morrison , 529 U.S. at 611-13, 120 S.Ct. 1740 (observing that the Violence Against Women Act "contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce"). To effectuate its intended purpose, a jurisdictional element must "limit [the statute's] reach to a discrete set of [activities being regulated] that additionally have an explicit connection with or effect on interstate commerce." Lopez , 514 U.S. at 562 , 115 S.Ct. 1624 . Put another way, when a jurisdictional element is the sole basis for concluding that a particular statute is constitutional, it must independently accomplish what nothing else in the statute does: compel the Court to conclude that the activity being regulated falls within Congress' Commerce Clause power.

The Supreme Court ably described this relationship between the substantive and jurisdictional elements of an offense in Torres v. Lynch , --- U.S. ----, 136 S. Ct. 1619 , 194 L.Ed.2d 737 (2016) :

In our federal system, Congress cannot punish felonies generally; it may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce. As a result, most federal offenses include, in addition to substantive elements, a jurisdictional one .... The substantive elements primarily define the behavior that the statute calls a violation of federal law .... The jurisdictional element, by contrast, ties the substantive offense ... to one of Congress's constitutional powers ..., thus spelling out the warrant for Congress to legislate.

Id. at 1624 (alterations, citations, and internal quotation marks omitted).

Likewise, § 249(a)(2) contains both jurisdictional and substantive elements, requiring the Government to prove both that a person "willfully cause[d] bodily injury to any person ... because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person," § 249(a)(2)(A), and one of the following:

(i) the conduct described ... occurs during the course of, or as the result of, the travel of the defendant or the victim-

(I) across a State line or national border; or

(II) using a channel, facility, or instrumentality of interstate or foreign commerce ;

(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described ...;

(iii) in connection with the conduct described ..., the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce ; or

(iv) the conduct described ...-

(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

(II) otherwise affects interstate or foreign commerce .

§ 249(a)(2)(B) (emphases added). For purposes of Hill's prosecution, the Government charged that Hill

willfully cause[d] bodily injury to C.T. by assaulting [him], including by punching C.T., because of C.T.'s actual and perceived sexual orientation ...; and that, in connection with the offense, [Hill] interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct, and which offense otherwise affected interstate and foreign commerce.

J.A. 19; Cf. J.A. 21. For reasons known only to the Government, it struck the language charging Hill under § 249(a)(2)(B)(iv)(II), that Hill's offense "otherwise affected interstate ... commerce," from the indictment. J.A. 21. Instead, the Government relied solely on § 249(a)(2)(B)(iv)(I), the only provision in the statute with no nexus to interstate or foreign commerce.

As the above-emphasized language reflects, the text of § 249(a)(2)(B)(iv)(I) substantially differs from all of the other ways the Government can prove this element of the offense. The other subsections directly refer to "interstate" travel or commerce; further, they track the broad categories of activities the Supreme Court has identified as falling within Congress' power to regulate under the Commerce Clause. Cf. Lopez , 514 U.S. at 558-59 , 115 S.Ct. 1624 (identifying (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce"; and (3) "activities that substantially affect interstate commerce"). Thus, the other subsections of the statute expressly incorporate within their text Congress' constitutional authority under the Commerce Clause.

In contrast, § 249(a)(2)(B)(iv)(I) is a distinct outlier without an interstate or foreign commerce statutory nexus. Nor is the unrestricted phrase "commercial or other economic activity" one of the categories the Supreme Court has identified as an area Congress can regulate under its Commerce Clause power. By § 249(a)(2)(B)(iv)(I) 's plain terms, it contains no jurisdictional nexus to Congress' authority under the Commerce Clause and thus fails under Lopez to be a "jurisdictional element" that has "an explicit connection with or effect on interstate commerce." Id. at 562 , 115 S.Ct. 1624 . This textual difference is meaningful: as set out in the analysis that follows, § 249(a)(2)(B)(iv)(I) encompasses conduct that falls outside Congress' Commerce Clause authority.

In this regard, § 249(a)(2)(B)(iv)(I) 's text is unusual, if not unique, not just within § 249(a)(2)(B), but also within statutory language the Supreme Court and this Court have analyzed since Lopez and Morrison . 9 The plain text of those jurisdictional elements differs fundamentally from the provision at issue in this case because they-like the other subsections of § 249(a)(2)(B) -use language directly implicating Congress' authority to regulate interstate commerce. For example, in Jones v. United States , 529 U.S. 848 , 120 S.Ct. 1904 , 146 L.Ed.2d 902 (2000), and Russell v. United States , 471 U.S. 858 , 105 S.Ct. 2455 , 85 L.Ed.2d 829 (1985), the Supreme Court considered the scope of the federal arson statute, which prohibits damaging or destroying (or their attempt), "by means of fire or an explosive, any ... property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce ," 18 U.S.C. § 844 (i) (emphases added). And in Taylor , 136 S. Ct. 2074 , the Supreme Court reviewed the Hobbs Act, in which Congress described the jurisdictional element as the requirement of having "obstruct[ed], delay[ed], or affect[ed] commerce or the movement of any article or commodity in commerce," 18 U.S.C. § 1951 (a). Significantly, though, Congress defined "commerce" for purposes of the Hobbs Act to mean interstate commerce and "all other commerce over which the United States has jurisdiction." 18 U.S.C. § 1951 (b)(3). Read together, these two provisions in the Hobbs Act ensured that any finding as to the jurisdictional element also satisfied Congress' Commerce Clause power. Taylor , 136 S. Ct. at 2079-80 ; see also Citizens Bank v. Alafabco, Inc. , 539 U.S. 52 , 56, 123 S.Ct. 2037 , 156 L.Ed.2d 46 (2003) (analyzing the Federal Arbitration Act, which applies to "contract[s] evidencing a transaction involving commerce ," 9 U.S.C. § 2 (emphasis added), and defines "commerce" to mean, in relevant part, "commerce among the several States ," 9 U.S.C. § 1 (emphasis added), as "words of art that ordinarily signal the broadest permissible exercise of Congress' Commerce Clause power").

Similarly, this Circuit's cases examining whether a jurisdictional element has ensured that individual prosecutions fall within Congress' Commerce Clause power-regardless of any other factors that also did so-have all addressed statutory language directly connecting the element to Congress' constitutional authority. E.g. , United States v. Umana , 750 F.3d 320 , 336 (4th Cir. 2014) (examining murder in aid of racketeering, which requires a finding that an enterprise "engaged in , or the activities of which affect , interstate or foreign commerce " (emphases added) (quoting 18 U.S.C. § 1959 (b)(2) )); United States v. Gibert , 677 F.3d 613 , 625-26 (4th Cir. 2012) (examining the federal prohibition on animal fighting, which includes the requirement that the venture was " in or affecting interstate or foreign commerce " (emphases added) (quoting 7 U.S.C. § 2156 (g)(1) )); United States v. Gould , 568 F.3d 459 , 470-72 (4th Cir. 2009) (rejecting Commerce Clause challenge to the Sex Offender Registration and Notification Act in part because it contains the jurisdictional element of requiring that the defendant either have a prior federal sex offense or "travel[ ] in interstate or foreign commerce ," 18 U.S.C. § 2250 (a) (emphases added)); United States v. Buculei , 262 F.3d 322 , 329 (4th Cir. 2001) (observing that 18 U.S.C. § 2251 contained a jurisdictional element as contemplated in Lopez because it required the jury to find that the defendant "knows or has reason to know that [the child pornography at issue] will be transported in interstate or foreign commerce or mailed " (emphasis added) (quoting 18 U.S.C. § 2251 (a) )); United States v. Cobb , 144 F.3d 319 , 321-22 (4th Cir. 1998) (holding, in relevant part, that the federal carjacking offense was "a valid exercise of Congress' authority under the Commerce Clause" because an element of the offense was taking of motor vehicles that had been "transported, shipped, or received in interstate or foreign commerce ," 18 U.S.C. § 2119 (emphases added)). 10 No such corollary exists in § 249(a)(2)(B)(iv)(I) : it does not require that the class of the victim's activities affected interstate commerce, nor does it limit the class of regulated activities to commerce over which Congress has authority. Contrary to the majority's holding, Congress cannot regulate all "commercial or other economic activity" in which a victim is engaged because Congress cannot generally regulate all commercial and economic activities based on an unsubstantiated assumption that they will-at some level of abstraction-affect interstate commerce. Lopez , 514 U.S. at 559 , 115 S.Ct. 1624 (holding that "in order to be within Congress' power to regulate it under the Commerce Clause," an activity must "substantially affect," and not just "affect," interstate commerce); see also Raich , 545 U.S. at 22 , 125 S.Ct. 2195 . Simply put, that the regulated activity interfered with someone else's "commercial" or "economic" activity is insufficient, else Lopez 's third category of Commerce Clause power would have no meaning. Indeed, the Supreme Court has expressly and repeatedly cautioned against conflating regular commerce and commerce over which Congress has authority:

[T]he scope of the interstate commerce power must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.

Lopez , 514 U.S. at 557 , 115 S.Ct. 1624 (internal quotation marks omitted).

Section 249(a)(2)(B)(iv)(I) does not ensure that prosecutions under it are "sufficiently tied to interstate commerce [as opposed to regulating] a wider, and more purely intrastate, body of violent crime." Morrison , 529 U.S. at 613, 120 S.Ct. 1740 ; see Lopez , 514 U.S. at 562 , 115 S.Ct. 1624 (describing the requisite jurisdictional element as "limit[ing] [the statute's] reach to a discrete set of [regulated activities] that additionally have an explicit connection with or effect on interstate commerce " (emphasis added)).

In sum, § 249(a)(2)(B)(iv)(I) does not require that the class of activities the victim was engaged in substantially affected interstate commerce, nor does it limit the class of activities regulated to commerce over which Congress has the authority to regulate. As such, it does not do what it must do to "limit [the statute's] reach to a discrete set of [acts] that additionally have an explicit connection with or effect on interstate commerce." Lopez , 514 U.S. at 562 , 115 S.Ct. 1624 . Therefore, § 249(a)(2)(B)(iv)(I) is not properly labeled a "jurisdictional element" in the sense that Lopez and Morrison described as the means of "ensur[ing], through case-by-case inquiry, that the [activity] in question affects interstate commerce." Id. at 561 , 115 S.Ct. 1624 .

Applying this principle here, because § 249(a)(2)(B)(iv)(I) is not coextensive with Congress' Commerce Clause power, the jury's finding that Hill's conduct satisfied this element of the offense did not demonstrate that Hill's conduct is within the reach of Congress' constitutional authority. In short, Hill was not charged with (or later convicted of) a crime with a stated interstate or foreign commerce jurisdictional basis. 11 The practical consequence of this conclusion is that a prosecution under § 249(a)(2)(B)(iv)(I) is a prosecution for an offense that does not have a constitutionally valid jurisdictional element, just as the statutes at issue in Lopez and Morrison were similarly flawed.

B.

1.

To be a valid exercise of Congress' Commerce Clause authority, the regulated activity must have a substantial effect on interstate commerce . One way a statute can do so is if the activity being regulated is economic in nature. Put another way, certain functions can be clearly economic in nature so that a jurisdictional element is not necessary to ensure that the activity being regulated falls within Congress' Commerce Clause power. United States v. Forrest , 429 F.3d 73 , 77 n.1 (4th Cir. 2005) ("[A]n effective jurisdictional element is certainly not required where ... the statute directly regulates economic activity.").

When undertaking this review, Lopez and Morrison direct courts to look at the root activity being regulated without regard for the jurisdictional element. The statutes at issue in both of those cases lacked jurisdictional elements, and when discussing the factors to be considered in determin