Crime & Federalism

Today the Supreme Court narrowed the Hobbs Act's scope in a very important way in Scheidler v. NOW (here).  Justice Bryer, writing for a unanimous Court (sans Alito) wrote: "We hold that physical violence unrelated to robbery or extortion falls outside the scope of the Hobbs Act."  Slip op. at 4.  The practical effect of the Court's ruling is that the Hobbs Act (and thus RICO) will not be used to prevent anti- abortion and other protests.

The Hobbs Act makes it a crime to "obstruct, delay, or affect commerce" by "committing or threatening physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section."  As regular readers well know, everything affects commerce, and so the Hobbs Act would seem to cover all acts of "physical violence" that "affect commerce."

Thus, the National Organization of Women sued several abortion protestors for blocking access to abortion clinics.  After all, touching someone is an act of physical violate, and touching the person to keep her from getting into an abortion clinic affects commerce, since abortion is a commercial activity.

Although this might seem to expand the Hobbs Act beyond Congress' intent, courts do this daily.  Garden-variety grand theft, in the hands of a creative federal prosecutor, is a violation of the Hobbs Act. 

But NOW properly lost today with the Supreme Court handing down a lawyerlike opinion that, while having all the sex appeal of any abortion-related case, involved a single issue of statutory interpreation. The full text of the Hobbs Act reads:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section [has violated the Hobbs Act].

This is a clumsy way of wording things, and I had to re-read the statute six or seven times to fully realize why Justice Breyer's opinion was accurate.  To illustrate why the Court is spot-on, the Hobbs Act should properly be read as having two separate offense components, and thus should read:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do [has violated the Hobbs Act].

[Whoever in any way or degree] commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section [i.e., obstructing commerce through robbery or extortion, has violated the Hobbs Act].

Read in this way, the Court's opinion makes perfect sense.  Of course, you are encouraged to read Justice Breyer's full opinion, which can be found here.