Yesterday, I covered the Appellant's brief. Today I cover the government's response to the commerce clause argument. The government spends substantially more time on the commerce clause issue, so I will only excerpt key portions below.
Madera concedes that 18 U.S.C. § 2250 includes an express jurisdictional element that requires travel in interstate commerce, but nevertheless argues that Congress exceeded its Commerce Clause power in enacting section 2250 because section 2250 assertedly “fails to establish a constitutionally sufficient relationship to the regulation of interstate commerce.” Madera’s brief at 41. Every district court that has considered this argument has rejected it, see Appendix A, infra. This Court should do the same.... This power enables Congress to reach even wholly intrastate conduct when that conduct is substantially related to interstate commerce. Id. Indeed, even if an individual’s activity is local and “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....” When a statute contains an express jurisdictional element, however, this Court may uphold that statute against a facial challenge without independently making a rational basis determination. See United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (statute “makes it unlawful for a felon to possess in or affecting commerce, any firearm or ammunition”; “[t]his jurisdictional element defeats [defendant’s] facial challenge to the constitutionality of” statute) (quoting 18 U.S.C. § 922(g)) (emphasis in original); United States v. Moghadam, 175 F.3d 1269, 1275-76 (11th Cir. 1999) (absence of jurisdictional element means court must make independent determination). This is so because “[w]hen a statute expressly requires that the proscribed conduct have an appropriate nexus with interstate commerce, courts can ensure, through case-by-case inquiry, that each application of the statute is constitutional, and thus the statute should not be struck down as being facially unconstitutional.” Ballinger, 395 F.3d at 1228 n.5 (internal quotation marks and quoted authority omitted). This Court can start and stop its Commerce Clause analysis with the observation that section 2250 includes an express jurisdictional element... “Courts have consistently recognized that federal statutes enacted to help states address problems that defy a local solution constitute an appropriate exercise of Congress’s Commerce Clause power, because this power includes the authority to govern affairs which the individual states, with their limited territorial jurisdictions, are not fully capable of governing.”
I think the government's brief is very strong on this issue. Ultimately, however, I disagree with its conclusion. First, the economic effects argument is a loser - it is essentially precluded by Morrison (Raich concerned an economic product making it a logical extension of Wickard). Second, the argument that a federal statute is needed to solve a local problem just isn't true. There is no reason each state's registration statute can't solve this problem wholly and completely. The government points out some of the other things the AWA does (ie a national online registry) that locals can't accomplish, but those things have nothing to do with the Madera case.
The key point for the government concerns the jurisdictional provision of the AWA. This is a powerful argument. However, in response, I would point out that not all jurisdictional provisions are created equal. If the provision read that "insofar as the defendant's criminal conduct has a nexus with interstate commerce," there would be no problem. However, the statute reaches much more broadly. The defendant merely has to travel using interstate commerce to be covered by the statute. In our modern age, this sort of provision covers a large number of persons. Every local crime could become a federal one if language such as that used in the AWA were used to determine jurisdiction and if the defendant traveled or moved between states. The 11th Circuit may be persuaded by the government's point on this issue, but I think it would be very dangerous for them to allow such far-reaching jurisdictional language to stand. The language should have been crafted more narrowly such that the criminal conduct itself has a nexus with interstate commerce. The courts have never really examined what is needed in one of these jurisdictional limits and I think the AWA cases present a wonderful opportunity to do that.
Tomorrow, I will cover the reply brief of the Appellant.
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