Crime & Federalism

it seems that John Yoo belongs on the legal-scholars-as-hack list.  Perhaps he can scoot in right next to Erwin Chemerinsky.  Details (though I suspect Orin would not appreciate my characterization) here.

Crime & Federalism is beginning a new feature called "Hack Attack."  In it we're going to chronicle right-and left-wing hackery.  Our first installment - "Reno, Pryor, and Justice" is set forth below.  Later installments will concern:

Band of left-wing hacks sign Roberts attack letters.
Right-wing law professor hacks, in violation of Supreme Court rules, file unhelpful brief in Solomon Amendment case.

Who knew Judge Pryor, if not always right (I sometimes disagree with his opinions - therefore, he is sometimes wrong) but certainly not lacking gravitas, could be the subject of a joke?  This was intended to be serious, which makes it that much funnier:

In the course of his prepared remarks, [then-Attorney]General Pryor differentiated between judges and prosecutors on the one hand, and criminal defense attorneys on the other, in the following terms: "Judges are independent. For that matter, so are prosecutors whose ethical duty, in contrast with defense attorneys, is to pursue truth and justice."

As a former prosecutor, I recall being taught by my then-boss Janet Reno (at the time, state attorney for Miami-Dade County) that it was a prosecutor's duty to prefer justice to conviction, but a defense attorney's duty to prefer acquittal to justice. It seems to me, however, that Ms. Reno's lesson was offered in a very different spirit than Pryor's testimony.

Hah, indeed! Show me one person Judge Pryor had wrongfully convicted.  Just one, and I'll print this post and eat it.  Janet Reno, on the other hand, has left such a long trail of victims behind her that I hardly know where to begin.  We could start with the men and women she had wrongfully convicted while in Miami; detour with her cronies that she never prosecuted (she let off the murderers from Ruby Ridge); and end with the negligently killed in Waco, TX.  That's hardly comprehensive, but it is a good start.

You might be wondering why I'm blogging this, as Pryor's nomination has come and gone.  The problem is that partisan hackery will remain. Reno, if not deliberately then at least recklessly, had numerous innocent people sent to prison.  But her "spirit" is somehow superior to someone whose only albatross (in my embarrassingly-biased opinion) was defending prison guards (as was his duty) in Hope v. Pelzer. 

So why is Reno a great spirit?  The only explanation is that she's a Democrat. Such partisan hackery, no matter how "outdated," angers me anew, and thus is always a timely target.

Interesting post here.

United States v Hickman, 179 F.3d 230 (5th Cir. 1999) (Higginbotham, dissenting).

In this case an en banc panel of the Fifth Circuit equally split as to the constitutionality of the Hobbs Act as applied to five co-defendants.  Therefore, the Hobbs Act stands. 

Background of the Case

Five defendants were tried as co-conspirators for committing various robberies in Texas - six successful robberies and one attempted robbery.  The amount stolen in the successful robberies was: $230, $1848, $1300, $1160, $1300, and $2000.  One robbery led to a killing. 

Although state charges were filed, the United States Attorney obtained a federal indictment charging the defendants with violations of the Hobbs Act and the state charges were never pursued.  The theory for federal jurisdiction was "depletion-of-assets."  Namely, that the robbery victims will have less money to spend on interstate commerce.

Analytical Structure of Hickman

Congress has the power to regulate interstate commerce under Article I, section 8 of the Constitution.  Pursuant to United States v. Lopez, 514 U.S. 549 (1996) (the first case to strike down a law enacted pursuant to the commerce clause since 1937), this power spans three areas.  "First, Congress may regulate the use of the channels of interstate commerce."  Id. at 558.  "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities."  Id.  Third, Congress's commerce power "includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce."  Id. at 558-59.  There are two crucial aspects of category three that demand attention.

First, in determining whether an activity substantially affects interstate commerce, the Court will aggregate all actual and potential instances of the conduct.  Wickard v. Filburn, 317 U.S. 111 (1942).  Thus, farmer Filburn's growing of 17 acres of wheat, while not itself having a substantial affect on interstate commerce, would if every farmer grew wheat for private consumption.  Second, congressional acts passed pursuant to the commerce clause were subject to rational basis level of review.  This means that the Court will accept almost any justification for the law.

Since the robberies did not involve categories 1 or 2, the dissenters attempted to determine the appropriate level of review for laws purportedly constitution under category 3.  The dissenters "would hold that substantial effects upon interstate commerce may not be achieved by aggregating diverse, separate individual instances of intrastate activity where there is not a rational basis for finding sufficient connections among them."  Id. at 231.  Thus, "a local robbery spree can be within Congress's power only if it by itself has a substantial effect."  Id.  "Aggregation demands connection."  Id. at 232.

Elementary, my dear Watson

As the great Holmes (Sherlock) once said: "When you eliminate the impossible, whatever remains - however improbable - must be the truth."  "If one could aggregate robberies under the Hobbs Act to satisfy the constitutional demand of a substantial effect on commerce, there would be no reason one could not aggregate murders, or other felonies, to sustain general federal jurisdiction over all crimes."  Id. at 232.  However, we know that the Constitution does not confer upon Congress a general police power.  We know that Congress can not enact a federal murder statute covering garden variety murders.  Thus, if the premises, if accepted as true, would lead to a general police power, then those premises must be false.

Federal-State balance

"[W]e cannot invent rational bases that Congress might have identified."  Hickman at 236.  (citing United States v. Bass, 404 U.S. 336, 349 (1971) ("[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state power balance."))

The Fifth Circuit does not say, although I do believe, that every time Congress enacts a criminal statue unrelated to its enumerated powers to define and punish crimes, it has altered the federal-state balance.

Other sources

SCOTUSblog has a description of Hickman (within the context of describing Judge Jones's judicial philosophy) here.

Law.com has an article about the case here.

Misc. facts

The government argued that if the court struck down the Hobbs Act under its new level of review, then the federal arson statute would, 18 U.S.C. 844(I) would be unconstitutional.  Incidentally, in Jones v. United States, 529 U.S. 848 (2000), the Court interpreted the federal arson statute to not apply to the burning of a commercial residence valued at $87,000 because to do otherwise would make it constitutionally suspect.

Among the dissenters was Judge Edith Jones, certainly no friend of criminal defendants.  Also notable was that Michael R. Dreeben from DOJ argued the case for the government.  Mr. Dreeben also argued Sabri. v. United States (No. 03-44) for the government.  If I traded baseball cards, I'd be looking for a Dreeben rookie card.