United States v. Hickman

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40237
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MASONTAE HICKMAN; MARKUS D CHOPANE; JYI R MCCRAY;
EDWIN T LIMBRICK; EDMOND GASAWAY,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
June 21, 1999
Before KING, Chief Judge, and POLITZ, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

PER CURIAM:

By reason of an equally divided en banc court, we affirm all

the counts of conviction against all appellants, and we affirm

the sentences of all appellants except Chopane. For the reasons

relating to Chopane’s sentence set out in the panel opinion, see

United States v. Hickman, 151 F.3d 446, 460-62 (5th Cir. 1998),

reh’g granted and opinion vacated, 165 F.3d 1020 (5th Cir. 1999),

we unanimously vacate Chopane’s sentence and remand for

resentencing.
2
HIGGINBOTHAM, Circuit Judge, with whom JOLLY, JONES, SMITH,

DUHE’, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges,

join, dissenting.

Between March and June 1994, various combinations of the

appellants robbed a Subway Sandwich Shop in Beaumont of $230, a

Church’s Chicken restaurant in Jasper of $1848, an AutoZone

automobile parts store in Beaumont of at least $1300, a Church’s

Chicken restaurant in Beaumont of $1160, a Dairy Queen restaurant

in Silsbee of $1300, and a Hardee’s restaurant in Beaumont of

$2000. An additional robbery was unsuccessful. When the

robberies escalated to a killing, they drew attention in deep

East Texas. Although state charges were filed, the United States

Attorney obtained federal indictments. The state charges were

then not pursued. Equally divided, the court today affirms

convictions under the Hobbs Act for these purely local robberies.

I

We believe that the Hobbs Act prosecutions exceeded

Congress’s authority, and we respectfully dissent from this

aspect of the court’s judgment.1 Our concern today is not with

the settled principle that Congress may regulate criminal conduct

with a substantial effect on interstate commerce. Our difficulty

1
We have no quarrel with the court’s decision to follow the
panel opinion by vacating Chopane’s sentence and remanding for
resentencing.

3
is rather with what counts in determining substantial effect. We

would hold that substantial effects upon interstate commerce may

not be achieved by aggregating diverse, separate individual

instances of intrastate activity where there is no rational basis

for finding sufficient connections among them. Of course,

Congress may protect, enhance, or restrict some particular

interstate economic market, such as those in wheat, credit,

minority travel, abortion service, illegal drugs, and the like,

and Congress may regulate intrastate activity as part of a

broader scheme. The Hobbs Act is not a regulation of any

relevant interstate economic market, nor are there other rational

connections among nationwide robberies that would entitle

Congress to make federal crimes of them all.

The Hobbs Act does not target any class of product, process,

or market, or indeed even commercial victims. It facially

applies to any robbery, or its attempt, of any person or entity.

Taking a child’s lemonade is as potentially covered as any other

robbery, at least as long as we are free to aggregate all

robberies. The Hobbs Act offers no “regulatory scheme” which

“could be undercut” if individual robberies were not aggregated.

United States v. Lopez, 514 U.S. 549, 561 (1995). Thus, putting

aside robberies as part of an effort to regulate particular

interstate markets such as guns, drugs, or organized crime

syndicates, a local robbery spree can be within Congress’s power

only if it by itself has a substantial effect.

4
 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. A great reduction in crimes

generally would obviously have a cumulatively large effect on

interstate commerce. As Chief Justice Marshall said in Cohens v.

Virginia, 19 U.S. (6 Wheat) 264 (1821), however, “Congress has .

. . no general right to punish murder committed within any of the

states,” and “[i]t is clear, that Congress cannot punish felonies

generally.” Id. at 426, 428. Without some judicially

enforceable outer limits to the aggregation theory, “it is

difficult to perceive any limitation on federal power, even in

areas such as law enforcement . . . where States historically

have been sovereign.” Lopez, 514 U.S. at 566.

The government offers no assistance in any effort to locate

the limits of its power. The Solicitor General did not offer in

brief or oral argument any principled limit upon federal

authority to prosecute local robbery or the taking of money by

force – even from a hypothetical five-year-old’s lemonade stand.

Although the government conceded that the Supreme Court

reaffirmed in Lopez that there are limits, it claimed to be

unable to locate those limits beyond the redoubt that at some

point the nexus to interstate commerce becomes too attenuated.

5
 We think that the tie that binds together disparate

activities must be made of stronger stuff. Aggregation demands

connection. The principles that we are about to describe are no

more than the underlying theme of past decisions, the by-product

of an effort to find a coherent path that connects them and would

justify myriad federal regulatory schemes. Its modesty aside, we

believe that it offers a principled and judicially enforceable

limit.

II

As the Supreme Court summarized in Lopez, there are “three

broad categories of activity that Congress may regulate under its

commerce power.” 514 U.S. at 558. “First, Congress may regulate

the use of the channels of interstate commerce.” Id. This power

is inapplicable here. A robbery victim, unlike a river or

highway, does not ordinarily provide a means by which goods can

move. “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. This is also inapplicable, because

even when a robbery victim is a store, a store is not an

instrumentality of commerce, like a boat or a car, and, though it

does business in interstate commerce, it is not itself in

interstate commerce.

The third category is the one we must address with the

greatest care here. The grant of authority to Congress, by the

6
Commerce Clause, “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 (citation omitted). Yet it is not always necessary that

the activities of the parties to the litigation themselves

substantially affect commerce. Since Wickard v. Filburn, 317

U.S. 111 (1942), the Supreme Court has recognized an aggregation

principle, by which Congress may reach an instance of an activity

that itself does not “substantially affect” commerce if a myriad

of such instances in the aggregate have a substantial effect.

This principle, though, does not explain what activities can

be aggregated when we are to add the effects of discrete acts.

We recognize the dangers of undue abstraction, but without some

account of what it means to aggregate, the aggregation principle

becomes disconnected from the root idea that some individual acts

can be regulated because they are meaningfully part of some

greater whole. We would hold that activities may be aggregated

where the interactive play of their effects is such that

regulation requires the ability to reach individual instances of

the activity to be effective.

The keystone is not similarity in some essentialist sense.

Whatever the strength of Professor Westen’s observations about

the concept of equality, the concept of similarity is “both empty

and confusing: ‘empty’ in that it derives its entire meaning from

normative standards that logically precede it; ‘confusing’ in

7
that it obscures the content of the normative standards that

logically precede it.” Peter Westen, The Meaning of Equality in

Law, Science, Math, and Morals: A Reply, 81 Mich. L. Rev. 604,

604 (1983). Merely because one robbery is similar to another in

that both are members of the legislatively-selected class of

activities that constitute robbery does not mean that we should

examine all robberies as a group for constitutional purposes.

Rather, at the least, individual acts cannot be aggregated

if their effects on commerce are causally independent of one

another. That is, if the effect on interstate commerce directly

attributable to one instance of an activity does not depend in

substantial part on how many other instances of the activity

occur, there is an insufficient connection – in other words, an

interactive effect – and the effect of different instances cannot

be added. If, on the other hand, the occurrence of one instance

of the activity makes it substantially more or less likely that

other instances will occur, then there is an interactive effect

and the effects of different instances can be added. It is this

principle that we believe is meant when the Supreme Court speaks

of a “class of activities.” E.g., Perez v. United States, 402

U.S. 146, 154 (1971) ("Where the class of activities is regulated

and that class is within the reach of federal power, the courts

have no power to excise, as trivial, individual instances of the

class.") (internal quotation marks omitted). As we will see,

there are no such interactive effects for robbery. When someone

8
steals $100, the effect attributable solely to that robbery on

interstate commerce does not depend on how many other robberies

occurred last year, nor will it determine or effect how many

other robberies will occur.

Ordinarily, we would not say always, the interactive effects

will be the supply-and-demand tugs of economic activity. Where

Congress has sought to regulate – protect, enhance, or restrict –

some particular market such as wheat, credit, minority travel, or

abortion service, it has pointed the way to a rational

aggregation test. It has identified those things that affect

that market, things which if not all subject to the regulation

would erode the effort. Intrastate production and sales can be

aggregated, because the prices of goods and services are

determined in interstate markets. If, for example, the federal

government enacts a price control to ensure sufficient income for

producers, it will be thwarted if consumers switch to buying

goods in intrastate commerce or produce the goods themselves.

Because the instances of economic activity are intimately

connected and in the aggregate substantially affect commerce,

Congress can regulate such activity.

We will focus on the distinction between economic and

noneconomic activity. The distinction is not conjured to limit

the commerce power arbitrarily. It is precisely to the contrary.

It follows directly from the notion of causal interdependence –

9
ultimately from an insistence that aggregation rest on a rational

principle.

A

Lopez is a useful starting point. Its reasoning suggests a

distinction between commercial and noncommercial activity. The

Lopez Court struck down the Gun-Free School Zones Act of 1990, 18

U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V). The Act made it a

crime “for any individual knowingly to possess a firearm at a

place that the individual knows, or has reasonable cause to

believe, is a school zone.”

In analyzing its prior approvals of congressional authority,

the Lopez Court emphasized the economic nature of the activity in

those cases. The Court noted, for example, that “we have upheld

a wide variety of congressional Acts regulating intrastate

economic activity where we have concluded that the activity

substantially affected interstate commerce.” Id. at 559 (emphasis

added). Wickard, for example, “involved economic activity in a

way that the possession of a gun in a school zone does not.” 514

U.S. at 560.

Finally, the Court explained, “The possession of a gun in a

local school zone is in no sense an economic activity that might,

through repetition elsewhere, substantially affect any sort of

interstate commerce.” Id. at 567. This statement is important

because it characterizes the aggregation principle as applying to

“economic activity.” Cf. Gerald Gunther & Kathleen M. Sullivan,

10
Constitutional Law 191 (13th ed. 1997) (noting the possibility

that the aggregation principle applies only to economic activity,

without expressing a position on the issue). Though the Court did

not explicitly state that only economic (or other interactive)

activities can be aggregated, it is telling that the Court

avoided characterizing possession as “an activity that might,

through repetition elsewhere, substantially affect any sort of

interstate commerce.”2

Justice Breyer’s dissenting statement of the aggregation

principle differed critically from the majority’s. “In

determining whether a local activity will likely have a

significant effect upon interstate commerce, a court must

consider, not the effect of an individual act (a single instance

of gun possession), but rather the cumulative effect of all

similar instances,” the dissent stated. Id. at 616 (Breyer, J.,

dissenting). From this statement, notably not restricted to a

“local economic activity,” the rest of the dissent’s argument

2
A concurring opinion also suggested a distinction between
commercial and noncommercial activities, though it did not link
this distinction to the aggregation principle. See id. at 577
(Kennedy, J., concurring, joined by O’Connor, J.) (“Were the
Federal Government to take over the regulation of entire areas of
traditional state concern, areas having nothing to do with the
regulation of commercial activities, the boundaries between the
spheres of federal and state authority would blur and political
responsibility would become illusory.”); id. at 583 (“The statute
now before us . . . regulat[es] an activity beyond the realm of
commerce in the ordinary and usual sense of that term.”). A
second concurrence rejected the aggregation principle directly.
See id. at 600 (Thomas, J., concurring). Justices Kennedy,
O’Connor, and Thomas also joined the majority opinion.

11
followed. Guns cause violence, violence hurts education, and

ignorance hinders commerce. See id. at 618-25.

The Lopez majority rejected this position by referring to

the danger of sliding down the proverbial slippery slope: “[I]f

we were to accept the Government’s arguments, we are hard pressed

to posit any activity by an individual that Congress is without

power to regulate.” Id. at 564 (majority opinion). In rejecting

the dissent’s mode of analysis, the Court did not announce a new

analytic framework in an express test. It made unmistakable,

however, that the proper framework must distinguish economic from

noneconomic activity. The Court did so while offering the

following concession: “Admittedly, a determination whether an

intrastate activity is commercial or noncommercial may in some

cases result in legal uncertainty.” Lopez, 514 U.S. at 566.

This does not mean that Congress cannot regulate

noncommercial activity that by itself substantially affects

commerce. Rather, we conclude that the Court demands recognition

of that distinction, or the more expansive one concerning

interactive effects that it symbolizes, in the context of the

aggregation principle itself. The Court implied that besides gun

possession in a school zone, school curriculum design and child

rearing were areas beyond Congress’s control. See id. at 565-66.

As noneconomic activities, these cannot be aggregated, and

individual instances of them can be reached only if they

individually have a substantial effect on interstate commerce.

12
 B

A rule that noneconomic activities cannot be aggregated,

where there are no other relevant interactive effects among those

activities, would be consistent with Supreme Court precedents

besides Lopez. The Lopez Court in particular explained how

Wickard, “perhaps the most far reaching example of Commerce

Clause authority over intrastate activity,” id. at 560, is

properly seen as considering economic activity. “The Act was

designed to regulate the volume of wheat moving in interstate and

foreign commerce in order to avoid surpluses and shortages, and

concomitant fluctuation in wheat prices, which had previously

obtained.” Id. Congress was attempting to regulate a market,

and it was essential to reach the discrete components of the

market.

The Wickard Court emphasized the farmer’s role as a player

in an economic system. See id. (“‘[I]f we assume that [wheat] is

never marketed, it supplies a need of the man who grew it which

would otherwise be reflected by purchases in the open market.’”)

(quoting Wickard, 317 U.S. at 128). Wickard led many to suspect

that the Court was prepared to uphold any congressional

legislation whatsoever. We think Wickard fits comfortably with

our insistence upon interactive effects – indeed it is a

compelling example. At the least, there is sufficient ambiguity

over whether the conduct was truly economic, that it offers

13
little or no support for a principle that allows noneconomic

activity to be aggregated.

Other Supreme Court decisions allowing congressional

authority are also consistent. The Lopez Court, indeed, listed

several examples of cases that involve economic activity: Hodel

v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S.

264 (1981) (coal mining); Perez v. United States, 402 U.S. 146

(1971) (credit transactions); Katzenbach v. McClung, 379 U.S. 294

(1964) (restaurants); Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241 (1964) (inns and hotels). See Lopez, 514

U.S. at 559-60.

We are told that our approach runs afoul of Russell v.

United States, 471 U.S. 858 (1985), in which the Court upheld a

federal conviction for conduct amounting to arson. That brief

unanimous opinion of the Court, however, did not confront a

constitutional challenge. Rather it was an effort at statutory

construction. See Russell, 471 U.S. at 862 (alluding to the

aggregation principle only in a paragraph beginning by examining

the “terms [of] the statute”). See also United States v.

Russell, 738 F.2d 825 (7th Cir. 1984), aff’d, 471 U.S. 862 (1985)

(treating directly only the statutory issue). At best, the

government can claim that the litigants assumed the interpretive

issue was dispositive, and Justice Stevens’s opinion for the

Court did no more than settle disagreements among the lower

14
courts over the meaning of the statute. He did not venture to

explore the aggregation thicket.

Here, Congress has merely identified a class of

objectionable conduct – robbery and extortion – and has sought to

regulate such conduct as far as possible. See 18 U.S.C. § 1951;

Stirone v. United States, 361 U.S. 212, 215 (1960) (finding in

the Hobbs Act “a purpose to use all the constitutional power

Congress has to punish interference with interstate commerce by .

. . robbery”). Without identification of a market or specific

property that Congress wishes to protect, it is difficult at best

to assess whether Congress had a rational basis for reaching acts

that are insubstantial when viewed alone. The relevant

constitutional inquiry turns on congressional purpose. See Hodel,

452 U.S. at 276 (“The court must defer to a congressional finding

that a regulated activity affects interstate commerce, if there

is any rational basis for such a finding.”).

Significantly, we cannot invent rational bases that Congress

might have identified. Cf. United States v. Bass, 404 U.S. 336,

349 (1972) (“[U]nless Congress conveys its purpose clearly, it

will not be deemed to have significantly changed the federal-

state balance.”). Hypothetical purposes supplied by counsel or

the judiciary have no place in such a sensitive area of

constitutional balance.

C

15
 Though Lopez focuses on economic activity, there is a strong

argument that some of the cases upholding congressional power may

also be explained as resting upon aggregation of noneconomic

activities interacting in other ways. The Perez Court, for

example, emphasized the connections between loan sharking and

organized crime. See 402 U.S. at 155-56. An individual offense

committed by an organized crime group is not isolated from other

offenses committed by that group, and indeed the commission of

one offense promotes the others. Loan sharking was seen as an

important part of the organized whole. For regulation to be

effective, the government may need to be able to prosecute

various intrastate offenses that individually do not have a

substantial effect on interstate commerce.

The Supreme Court expressly noted, “In the setting of the

present case there is a tie-in between local loan sharks and

interstate crime.” Id. at 155. Likewise, if an organized crime

group committed various robberies that together substantially

affected commerce, we would not doubt Congress’s ability to

prosecute a member of the group for one of them pursuant to an

appropriate statute. Such prosecution would be an essential part

of a larger regulatory scheme. For now, though, we need not

venture beyond our principle of economic interdependence. Loan

sharking was seen as the financial life blood of organized crime.

It is suggested that the civil rights cases turning on the

Commerce Clause, Heart of Atlanta and McClung, can be understood

16
to have aggregated discrete acts of discrimination. To be sure,

the Court expressly applied the aggregation principle to the

affected businesses’ economic activity. See, e.g., McClung, 379

U.S. at 300-01. Justice Clark pointed to the testimony before

Congress of the clog upon interstate travel worked by the virtual

apartheid of racial discrimination. See id. at 209-301. The

Court, however, also specifically noted that “while the focus of

the legislation was on the individual restaurant’s relation to

interstate commerce, Congress appropriately considered the

importance of that connection with the knowledge that the

discrimination was but representative of many others throughout

the country.” Id. at 301 (internal quotation marks omitted).

That this economic regulation also had the goal – even a

larger goal – of undermining a racist social norm does not defeat

its constitutionality. Cf. Lawrence Lessig, The Regulation of

Social Meaning, 62 U. Chi. L. Rev. 943, 965-67 (1995) (explaining

that the Civil Rights Act of 1964 served to change the social

meaning ascribed to the serving by a white person of a black

person). Banning particular acts of discrimination may be

ineffectual in changing attitudes and perceptions in the absence

of a blanket ban. Of course, we do not mean that Congress has

the power to regulate an activity whenever it believes that it

can change a social norm. The simple fact is that in the context

of discrimination a local restaurant resisting a norm of racism

would lose to its competitors who did not change. It is thus

17
once again economic regulation that finds its sustenance in the

commerce power. When Congress enacted the public accommodations

provision it confronted acts of discrimination, each with

cumulative economic effect. Only because these acts were

directly connected and interlaced could they form a wall of

resistance, sometimes cemented by state laws that perpetuated

such discrimination.

D

Catching the government’s train of unyielding creative

defenses of its power, one might argue that each incident of

robbery hardens society and makes it more likely that other

robberies will occur. Accepting this argument would allow

congressional regulation of any disfavored activity – quite close

to the government’s argument in this case. Though an individual

act of robbery may make us more resigned to the inevitability of

crime, diverse robberies cannot rationally be said to be causally

dependent on one another. Thus, if various robberies are to be

aggregated, they would need to constitute economic activity. We

would hold that they do not.

Perhaps the most plausible argument that robbery is economic

activity is that it has an effect on prices of goods sold on

interstate markets. Because some robberies increase the cost of

doing business, the argument goes, robbery causes all prices to

rise and is thus economic. This argument, however, is circular.

It seeks to aggregate robberies on the basis that if those

18
robberies were aggregated, a substantial effect on commerce can

be discerned. The question, under our approach, is whether

robberies interact with one another in a way that makes it

rational to sum their effects in Hobbs Act cases. One might

argue that each robbery causes victims to take additional

security precautions, thus making other robberies harder to

commit. This type of effect, however, seems to “pile inference

upon inference,” Lopez, 514 U.S. at 567, and concluding that

because one robbery deters another, Congress can aggregate them,

seems downright bizarre.

One might argue that robbery is economic because it involves

the transfer of money or property from the victim to the robber.

On this account, any such transfer interacts with all other

activity in the economic system and is thus aggregable. While to

the eyes of the economist, the world, like the law, is a seamless

web, we must separate activity that is properly considered

economic from other activity that while having some connection to

economic activity is not properly considered a part of the

economic system itself. We must thus look beyond our definition

of interactivity to develop an account of what “economic

activity” is, without embracing here the suggestions of Gary

Becker and other economists that all activity is in one way or

another “economic.” Economic theory informs and assists in the

development of constitutional doctrine – but it is not and does

not claim to be an organic limit of government.

19
 The original understanding of “commerce” provides one source

for such an account. As Justice Thomas persuasively argued,

“[a]t the time the original Constitution was ratified, ‘commerce’

consisted of selling, buying, and bartering, as well as

transporting for these purposes.” Lopez, 514 U.S. at 585 (Thomas,

J., dissenting). Of course, the Supreme Court’s understanding of

“commerce” has grown to include production, entailing

manufacture, agriculture, and services, all of which are

unquestionably economic activities. While the original

understanding must yield to the Supreme Court’s jurisprudence,

where they are aligned, we ought to be wary of choosing a

different path.

There is no basis either in the original understanding or in

the case law for including robbery in economic activity. Robbery

is not selling, buying, or bartering, and it does not produce

anything. It effects only the transfer of resources, and an

involuntary transfer at that. It makes sense that the Framers

wanted Congress to be able to strike against balkanization in

regulating commerce, for in legislating, Congress sets the terms

for economic interaction. Robbery does not implicate such terms,

for robbery is everywhere the unlawful decision by a single party

to deprive another involuntarily of his property. The essence of

commerce is “commercial intercourse,” Gibbons v. Ogden, 22 U.S.

(9 Wheat.) 193 (1824), yet in robbery there is no exchange.

20
 These are all strong reasons to conclude that robbery is not

economic activity in the relevant sense, but we arguably do not

need this analysis today. The Supreme Court in Lopez accepted,

indeed took for granted, that education and family law were not

within commerce. See 514 U.S. at 565-66. Along with regulation

of crimes such as firearm possession, control over these areas

traditionally falls under the police power of the states. The

majority believed it necessary to distinguish “between what is

truly national and what is truly local,” id. at 567-68, and the

police power provides a rough guide. Cf. Stone v. Mississippi,

101 U.S. 814, 818 (1879) (noting that it is conceptually far

easier to determine whether an activity falls within the police

power than it is to provide an accurate definition of the police

power). We would hold that robbery is likewise in the realm of

the police power.

The federalization of criminal law is a recent innovation.

See, e.g., Task Force on the Federalization of Criminal Law,

American Bar Ass’n, The Federalization of Criminal Law 7-9

(1998). The police power may include some regulation of criminal

economic activity, and such activity could be aggregated. But

where there is ambiguity as to whether certain activity is

economic, whether that activity would be within the police power

is an informing means of resolving the ambiguity. Because

robbery’s “economic” status is at best uncertain, that robbery is

a traditional target of the police power buttresses our

21
conclusion that robbery is not economic and thus that robberies

cannot be aggregated. This is a qualitative judgment, true

enough. Yet the never-ending task of protecting our federalist

government would be sorely weakened by a purchase only of a

quantitative set.

III

We pause to consider other possible interpretive approaches

to the Commerce Clause and to explain our preference. Other

circuits have held, even after Lopez, that a de minimis effect on

commerce under the Hobbs Act is constitutionally sufficient.

Some of their reasoning is conclusory. See, e.g., United States

v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir. 1995) (stating that the

“Hobbs Act . . . is aimed at a type of economic activity,

extortion,” without explaining why extortion should count as

“economic activity”); United States v. Farmer, 73 F.3d 836, 843

(8th Cir. 1996) (“We have no doubt of the power of Congress to

protect from violence businesses that are part of an interstate

chain.”); cf. United States v. Atcheson, 94 F.3d 1237 (9th Cir.

1996) (assuming, without explanation, that “the Hobbs Act is

directly aimed at economic activities”).

Other cases simply assume that aggregation applies to all

activities, without acknowledging that Lopez approvingly

discussed the aggregation principle only in conjunction with

economic activity. See, e.g., United States v. Bolton, 68 F.3d

396, 399 (10th Cir. 1995) (“if a statute regulates an activity

22
which, through repetition, in aggregate has a substantial affect

[sic] on interstate commerce . . .”) (emphasis added). None

answers the question of who decides what to count in the sums

game.

A panel of this circuit, in United States v. Robinson, 119

F.3d 1205, 1210-15 (5th Cir. 1997), properly recognized that the

ultimate test is whether there was a rational basis for

congressional action. See id. at 1210. Though characterizing

this standard as “deferential,” the panel recognized that

"’[d]eference is not acquiescence.’" Id. (quoting United States

v. Knutson, 113 F.3d 27, 29 (5th Cir. 1997) (per curiam)). The

panel, however, failed to recognize that when applied to the

conceptual question of what effects may be summed, a rationality

test can have bite. In the instant case, the panel acknowledged

that “local robberies are not the sort of economic activity that

can legitimately be viewed in the aggregate for traditional

economic impact analysis purposes,” 151 F.3d at 456, but was

bound by Robinson.

In any event, we will not fight straw men. Rather, we will

examine the five alternative interpretive approaches that we

believe offer the most promise in upholding Hobbs Act convictions

for local robberies. Each of these approaches takes comfort in

one or more of the cases, but we nonetheless find each wanting.

We believe that our approach both fairly treats the cases and

23
offers a clearer basis for delineating the reach of Congress’s

power.

A

The most ambitious defense of Congress’s power here denies

that there must be connections among discrete activities for

those activities to be aggregated. Lopez, on this view,

announces a sort of proximate cause test, permitting regulation

of activities that when aggregated have an effect on commerce

that is perceptible without “pil[ing] inference upon inference.”

See, e.g., Deborah Jones Merritt, Commerce!, 94 Mich. L. Rev.

674, 679 (1995) (arguing that Lopez can be read as shifting

Commerce Clause jurisprudence from a purely quantitative test to

a more qualitative one). The connection between guns in schools

and commerce can be perceived only through the series of

inferences that Justice Breyer offered.

We do not claim that this is an unsupportable reading of

Lopez. Certainly, the Court was concerned with connections

between activities and commerce that seem too attenuated, and the

Lopez Court, see 514 U.S. at 566, quoted its earlier remark in

Jones & Laughlin Steel, 301 U.S. 1, 37 (1937), that congressional

power under the Commerce Clause “is necessarily one of degree.”

We think the interpretation has trouble making sense of the

Supreme Court’s signal that courts will need to distinguish

between commercial and noncommercial activity. In the end,

though, we agree that when the Supreme Court has not explicitly

24
announced a test, finding majestic pronouncements in a sentence

or two of its arguments has the earmark of a Rudyard Kipling

“just so” story.

Our concern about this approach is that it is not a line or

a test. At best it is descriptive of an outcome that lacks an

identifying supporting principle. Any contrary suggestion is an

illusion. A domestic homicide can be made a federal crime any

time the victim is a wage earner. Battery within five hundred

yards of a store doing business in interstate commerce also might

be regulated. Perhaps even adultery in a hotel room rented in

interstate commerce could be made a federal crime. A court might

find that these go too far, the connection too attenuated. But

we cannot be sure why beyond the conclusion that they “know it

when they see it.”

Indeed, the approach is so ill-defined that it is not even

clear that it should allow prosecution of the robberies here.

Such robberies have been prosecuted under the depletion-of-assets

theory, the notion that robbery victims will have less money with

which to make purchases in interstate commerce. This effect,

while not absurd, is at best probabilistic, and victims without

severe liquidity problems might well write off the loss and buy

as before.

There is another problem. The proximate cause approach

applies its limits after aggregation. This seems to imply that

anything can be aggregated. Can all crimes of violence be

25
aggregated together? How about all crimes? It takes no leap, no

inference upon inference, to conclude that crime as a whole has a

substantial effect on commerce. Surely such an approach does not

give Congress the right to regulate all crime. But what is magic

about robberies that allows all of them to be lumped together,

rather than grouped into subclasses depending on any of a number

of variables? A proximate cause approach ultimately needs to be

supplemented by some test limiting the scope of what can be

aggregated.

Proximate cause is an appropriate creature for tort law.

Because legislatures and judges cannot precisely define the

contours of liability, we leave it to juries to supply common

sense to vague legal standards, with occasional judicial

intervention. What works for torts does not necessarily work for

constitutional law. If we leave proximate cause determinations

to Congress, then it will be able to find some justification for

virtually any legislation. And if we leave such determinations

to courts, then we can give little advance guidance to Congress.

With any rule, of course, some case-by-case interpretation is

inevitable. But some tests are clearer than others.

B

Another argument that would find federal prosecution of

local robberies reachable under the Commerce Clause appears in

United States v. Harrington, 108 F.3d 1460 (D.C. Cir. 1997), and

again in United States v. Farrish, 122 F.3d 146 (2d Cir. 1997).

26
The argument avoids the puzzlement of aggregation, maintaining

that because the Hobbs Act has a jurisdictional element, any

concrete effect on interstate commerce is sufficient.

Where a statute has a jurisdictional element, this argument

maintains, “each case stands alone on its evidence that a

concrete and specific effect does exist, and we can find no

controlling authority suggesting that courts must require that,

as to each factual scenario, a ‘substantial’ rather than a

‘concrete’ effect on interstate commerce must be shown.”

Harrington, 108 F.3d at 1467. Indeed, the Lopez Court noted that

the Gun-Free School Zones Act “has no express jurisdictional

element which might limit its reach to a discrete set of firearm

possessions that . . . have an explicit connection with or effect

on interstate commerce,” 514 U.S. at 561, omitting the

requirement that the effect be “substantial.”

As a preliminary matter, we do not think scaling back to an

insubstantial but concrete effect could make a difference here.

The jury was allowed to convict based on any indirect effect on

commerce, and there was no evidence of any concrete effect. More

significantly, the Harrington conclusion that only a concrete

effect on commerce need be shown mistakes the Supreme Court’s

failure to mouth “substantial” repeatedly as a subtle limitation

on the holding. The Court explicitly held that “the proper test

requires an analysis of whether the regulated activity

27
‘substantially affects’ interstate commerce,” Lopez, 514 U.S. at

559, without mentioning the aggregation principle.

Indeed, this approach threatens to reintroduce the

discredited direct-indirect distinction into Commerce Clause

jurisprudence, albeit in a new guise. It would allow direct

effects that are not substantial, while requiring indirect

effects to be substantial. A pickpocket who steals a subway

token, causing his victim to walk home, could potentially be

federally prosecuted, while someone who lifts $100 from an owner

too rich to change his spending patterns as a result could not.

There is no reason to think the Supreme Court intended anything

of the kind.

A jurisdictional element by itself cannot save a statute

that exceeds congressional authority. The jurisdictional element

must in some way be meaningful, and the Supreme Court has

specified a condition for meaningfulness in its substantial

effects test. The Court noted that Ҥ 922(q) has no express

jurisdictional element which might limit its reach,” id. at 562

(emphasis added), but never stated that any jurisdictional

element with the words “affecting commerce” would succeed in

limiting its reach adequately.

C

We also reject the suggestion of the government that the

convictions can be upheld based on the second of the three

categories identified in Lopez, the power “to regulate and protect

28
the instrumentalities of interstate commerce, or persons or things

in interstate commerce, even though the threat may come only from

intrastate activities.” 514 U.S. at 558. The government’s theory

is that the victims were “in interstate commerce” because they

purchased inventory and supplies from outside Texas. We view this

category as encompassing only vehicles that move or could move in

interstate commerce and people or goods traveling in commerce. See

id. at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914);

Southern R. Co. v. United States, 222 U.S. 20 (1911)).

The United States maintains that United States v. Robertson,

514 U.S. 669 (1995) (per curiam), decided just days after Lopez,

supports its analysis. Robertson involved the illegal investment

of narcotics proceeds, and both investment and narcotics

trafficking are undoubtedly economic. The Court held, however,

that it did not need to consider the “affecting commerce”

jurisprudence because the commercial activities Robertson was

engaged in were themselves interstate activities. See id. at 671.

Instead, the Court concluded that Robertson had “engaged in

commerce” within the meaning of 18 U.S.C. § 1962(a). But this

conclusion does not mean that Robertson is a category two case.

Whether one is “engaged in commerce” under a statute is different

from whether one is “in commerce” for constitutional purposes.

Even if the Court’s references to its Commerce Clause

jurisprudence mean that Robertson is to be seen as offering an

implicit constitutional holding, this holding is better interpreted

29
as reaffirming the first category of Lopez, the power to “regulate

the use of the channels of interstate commerce,” 514 U.S. at 558,

than as dramatically expanding the second. The Court offered

several examples of how Robertson conducted activities using the

channels of interstate commerce. For example, “[O]n more than one

occasion, Robertson sought workers from out of state and brought

them to Alaska to work in the mine.” 514 U.S. at 671. Moreover, the

activity that violated the statute was an investment of money in

one state for equipment that was transported to another state. See

id. at 670.

D

Category one, which the government does not press, also does

not apply in this case. The strongest argument for application of

this category is that the government may prosecute someone for

“receiv[ing] . . . in commerce or affecting commerce” a firearm “if

it demonstrates that the firearm received has previously traveled

in interstate commerce.” Bass, 404 U.S. at 350; United States v.

Scarborough, 431 U.S. 563 (1977). These cases, however, are also

exercises in statutory, not constitutional, interpretation.

There is anyway a difference between banning possession of an

item that has traveled in commerce and protecting a person or

business that purchases items in interstate commerce. While we

need not here develop a test for category one, it suffices to note

that if the latter nexus were enough, then Congress could regulate

the activities, say, of people wearing clothes purchased in

30
interstate commerce. Category one, as expressed in Lopez, notably

does not entitle Congress to protect or otherwise regulate those

who from time to time use the channels of commerce, and we see no

reason to read it so broadly.

E

We also would reject a rule that would allow Congress to have

its way, as long as it made sufficient legislative findings that

certain conduct affected commerce. The Supreme Court mentioned the

absence of legislative findings in the Gun-Free School Zones Act.

See Lopez, 514 U.S. at 562-63. But it did not promise that any

such findings of “substantial effect” would immunize legislation

from judicial scrutiny. It merely indicated that findings might

make a difference “to the extent that [they] would enable us to

evaluate the legislative judgment that the activity in question

substantially affected interstate commerce, even though no such

substantial effect was visible to the naked eye.” Id. at 563

(emphasis added). See also id. at 612-13 (Souter, J., dissenting)

(“The question for the courts, as all agree, is not whether as a

predicate to legislation Congress in fact found that a particular

activity substantially affects interstate commerce.”). Lopez tell

us that the Commerce Clause is not a political question wholly

committed to congressional discretion and that although

legislative findings are a useful prelude to a constitutional

analysis, at some point constitutional doctrine must take over.

IV

31
 The government parades horribles, listing statutes that it

asserts would fall with our insistence upon rationality in

aggregation, from the federal arson statute, 18 U.S.C. § 844(I), to

the federal gambling statute, 18 U.S.C. § 1955; from the federal

money laundering statute, 18 U.S.C. § 1956, to the federal

carjacking statute, 18 U.S.C. § 2119; from the felon-in-possession

statute, 18 U.S.C. § 922(g)(1), to the federal machine-gun statute,

18 U.S.C. § 922(o). We disagree. Typical prosecutions for these

statutes are justifiable either under our test or under one of the

other branches of the commerce power. But in the Hobbs Act,

Congress has not identified, and probably cannot find, any rational

basis for aggregation that would entitle the federal government to

prosecute purely local robberies. In demanding that Congress

accommodate the qualitative principle of our federalism that local

crime be left to the states, we do no more today than insist that

Congress identify a non-pretextual, rational basis for concluding

that there are sufficient interactive effects among activities to

allow them to be aggregated. Lopez says there is a line. Today

we must draw that line.

Until recently, fifty years of judicial deference committed to

the political branches the power to define the limits of their

power under the Commerce Clause. To be sure, the judiciary has

occasionally claimed a role, but its grasp on each occasion has

slipped away. See, e.g., National League of Cities v. Usery, 426

U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit

32
Auth., 469 U.S. 528 (1985). Even today, the government in effect

says that the power of Congress is what Congress and the President

say it is, subject only to the most vague and thin constraints.

This judicial repair to the sidelines has left Congress to

police itself. With the increased federalization of traditional

state crimes, the consequence of this acquiescence of the judiciary

looms large. Not surprisingly, the increased overlapping of

traditional state criminal statutes taxes the institution of

Article III courts.

That the federal courts were created as courts of limited

jurisdiction is no historical happenstance, some quirk of Article

III without reflection elsewhere in the Constitution. Rather,

their limited jurisdiction, set against the general jurisdiction of

state courts, is integral to our federalism. It is in state courts

that the overwhelming percentage of all litigation has always been

conducted. Federal courts cannot play their vital historical role

if they are to be cast as major criminal courts, trying the

robberies, murders, assaults, and extortion historically the

province of the states. And reading (or not reading) the Commerce

Clause to support without locatable limits federal jurisdictional

overlap of these traditional state crimes inevitably breeds

federalization – checked only by the self-restraint of Congress,

here conspicuously absent. That crime is a serious social concern

does not mean that it is by that circumstance a federal matter.

33
 Resisting this vertical movement from state to federal courts

in no way steps upon the congressional role in defining the

jurisdiction of federal courts, a role hammered from the Madisonian

Compromise. By design, Congress may expand and contract diversity

and federal question jurisdiction, and for the rawest of political

reasons. The Founders concerned about the vitality of state courts

could be confident in allowing Congress to define jurisdiction

because they knew that the organic external constraints of Article

I would cabin legislation and protect state courts. The problem

has not proved to be with the power of Congress to define the grant

to federal courts of federal question jurisdiction. Rather, it is

the absence of judicially enforceable limits upon the power of

Congress under the Commerce Clause to inject a federal question

into traditional bodies of state criminal law.

The ad hoc and random use of the Hobbs Act to prosecute local

robberies masks the dramatic reach of federal power required to

sustain them. The full force of the government’s assertion of

authority, and the irrationality of the summing of effects

undergirding it, is unmasked by the reality that if this

application of the Act were sustained, Congress could also grant

exclusive federal jurisdiction to all prosecution reachable by the

Act – by adding a single line. And by the government’s reasoning,

that includes virtually all robberies. We need not judge the

extent to which the commerce power remains yet a nigh political

question to conclude that rationality remains a gate to the

34
exercise of congressional power even if its authority be limited by

no more than its free political will.

We would reverse the Hobbs Act convictions.

35
DeMOSS, Circuit Judge, specially dissenting:

I join Judge Higginbotham’s dissenting opinion. He has heeded

the mandate of the Supreme Court in Lopez, and has undertaken the

arduous task of demarcating the “outer limits” of federal power, of

distinguishing between “what is truly national and what is truly

local.” United States v. Lopez, 514 U.S. 549, 566-68 (1995). The

interaction principle espoused in Judge Higginbotham’s opinion is

a much needed step toward injecting some measure of rationality

into that process.

I write separately, however, because the present debate over

the Hobbs Act extends well beyond the issue of whether the

robberies in this case may, as a conceptual matter, be aggregated

as a class. Aggregation is an important aspect of this case, to be

sure. But the truly determinative question, one which I fear may

be lost in the abstract debate over aggregation, interaction,

causal interdependence, and the like, is whether the conduct in

this case “substantially affects interstate commerce.” It is that

standard, after all, which is our constitutional touchstone, and

which should ultimately control the outcome of this case. Id. at

560.

In the past several years I have written at length as to why

local robberies of the present sort do not “substantially affect

interstate commerce.” United States v. Hebert, 131 F.3d 514 (5th
Cir. 1997) (DeMoss, J., dissenting in part); United States v.

Miles, 122 F.3d 235 (5th Cir. 1997) (DeMoss, J., specially

concurring). And the reasons I have offered bear repeating.

In determining whether a class of activities substantially

affects interstate commerce, we of course look to the legislative

record for evidence of congressional findings of such an effect.

Judge Higginbotham states in his dissent that Congress did not

identify the market it wished to protect by passing the Hobbs Act.

United States v. Hickman, ___ F.3d ___, ___ (5th Cir. 1999)

(Higginbotham, J., dissenting). But I beg to differ. The

legislative history of the Hobbs Act is replete with evidence that

Congress passed the statute to combat highway robberies by labor

union members which, at the rate of more than 1,000 per day, were

having a considerable impact on interstate commerce. Miles, 122

F.3d at 244 (DeMoss, J. dissenting). However, nothing in the

legislative history of the Hobbs Act indicates that Congress was

concerned with local robberies of retail establishments. There is

absolutely no legislative history suggesting that retail robberies

were having a substantial effect on interstate commerce.

Consequently, there is simply no rational basis for concluding that

Congress found that local robberies of retail stores, whether

aggregated or not, have a substantial affect on interstate

commerce.

37
 In the absence of legislative history supporting the extension

of the Hobbs Act to local robberies, we are left with the plain

language of the statute. As I have explained in previous cases, it

is clear from the wording of the statute that “commerce” refers to

intercourse between the states. Hebert, 131 F.3d at 528-239;

Miles, 122 F.3d at 245. Congress thus meant "commerce" in the

ordinary sense, the flow of goods and people across state lines.

It surely did not intend some metaphysical interpretation, where

the taking of money from a cash register or attendant’s purse

becomes magically transformed into an economic event that bears on

our national commerce.

Thus, while I join Judge Higginbotham’s dissent, I reiterate

my continuing belief that the applicability of the Hobbs Act should

be determined with these more basic principles.

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