I'm going to post a sketch of my question first, and then provide some context.
Question -- A is convicted under a federal law, X-law, and has a pending appeal. Later, hearing B's case, an appellate court strikes down X-law as violative of the Commerce Clause. Shouldn't A's conviction be reversed, regardless of whether he raised a Commerce-Clause-based challenge to his prosecution, on the grounds that where Congress lacks the power to enact a law, so too the District Court lacked jurisdiction to hear the case? More broadly, can a litigant ever "waive" an enumerated powers argument since the federal courts only have jurisdiction over "cases and controversies"?
Context and clarification -- United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) involved an as-applied challenge to 18 U.S.C. 2252A(a)(5)(B), which makes it a crime to, "knowingly possesses any ... computer disk ... that
contains an image of child pornography that was produced using materials that have been ... transported in interstate or foreign commerce []."
In Maxwell, the defendant possessed 15 images of child pornography. The images were contained on a diskette that had been transported in interstate commerce, but the government could not prove that the images were produced or possessed interstate. Since the plain language of 2252A covered his conduct, Maxwell argued that the law was unconstitutional under the Commerce Clause. A unanimous three-judge panel agreed. Id. at 1068 (holding that intrastate possession of child pornography was not "an activity subject to Commerce Clause regulation" where "the disks on which the pornography was ultimately copied traveled, when blank, to Florida from someplace outside of Florida.")
A few months later, the Eleventh Circuit heard United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005). Smith involved the same conduct - and a conviction under the same statute - at issue in Maxwell. The court wrote that under precedent, "Maxwell does not apply unless Smith advanced a Maxwell-type claim in his opening brief." Id. at *3. The Smith court nonetheless reversed Smith's conviction after generously reading Smith's briefs, and reviewing for plain error. I think the holding was correct, but that the rationale was not.
Article III limits federal court's jurisdiction to "cases and controversies." Since the case or controversy requirement is a constitutional one, it can not be waived by the parties. Charles Alan Wright noted: "The parties cannot waive lack of jurisdiction, whether by express consent, or by conduct, or even by estoppel. The court, whether trial or appellate, is obliged to notice want of jurisdiction on its own motion [ ]." Wright & Kane, Federal Courts at 28 (6th ed.). If jurisdiction is lacking, even if raised for the first time on appeal, then the case must be dismissed.
The only reason the federal court had jurisdiction over Smith's conduct was by the act of Congress. It's tautological to say that had there not been a 2252A, then there would not have been a case or controversy. Thus, if the relevant federal circuit court of appeals finds that the law is invalid under the Commerce Clause, then doesn't it also follow that the jurisdiction over Smith's case was invalid?
In other words, one can not waive an argument as to Congress' power to enact a federal law, since Congress' power goes to the heart of federal court's jurisdiction.
