United States Court of Appeals
Fifth Circuit
FILED
February 28, 2005
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________
No. 03-20884
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
FRANK LAFAYETTE BIRD, JR,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
Before GARZA, DeMOSS and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
In United States v. Bird (“Bird I”) this Court held that the Freedom of Access to Clinic
Entrances Act (FACE) is a valid exercise of Congress’s authority under the Commerce Clause. 124
F.3d 667, 678 (5th Cir. 1997). Notwithstanding that holding, the district court in the present case
held that under United States v. Morrison, 529 U.S. 598 (2000) “passage of [the FACE Act] was
beyond Congress’ Commerce Clause authority.” United States v. Bird, 279 F. Supp. 2d 827, 838
(S.D. Tex. 2003).
We do not find that the Supreme Court’s decision in Morrison materially affects our holding
in Bird I.1 Our decision in that case is therefore binding.2 Cf. United States v. Pettigrew, 77 F.3d
1500, 1511 n.1 (5th Cir. 1996) (“While. . .one panel of this Court is generally powerless to overrule
the previous decision of another panel . . . , an exception to this rule arises when there has been an
intervening decision by the United States Supreme Court overriding the earlier decision.”).
Accordingly, we VACATE the district court’s order and REMAND for further proceedings
not inconsistent with this opinion.
1
We note that this conclusion accords with the post-Morrison decisions of our sister circuits.
See United States v. Gregg, 226 F.3d 253 (3d Cir. 2000), cert. denied 523 U.S. 971 (2001); Norton
v. Ashcroft, 298 F.3d 547 (6th Cir. 2002), cert. denied, 537 U.S. 1172 (2003).
2
This Court’s decision in Bird I involved an application of 18 U.S.C. § 248(a)(1), the
subsection of FACE addressing acts of violence and intimidation. The present appeal involves an
application of 18 U.S.C. § 248(a)(3), the subsection of FACE addressing destruction of and damage
to property. Neither the parties nor the district court, however, suggest any variance in Commerce
Clause analysis between these two subsections.
-2-
DeMOSS, Circuit Judge, dissenting:
In March 2003, Bird drove a van through the front door of a
Planned Parenthood facility in Houston, Texas. A federal grand
jury indicted Bird on one count of violating 18 U.S.C. § 248(a) and
(b)(2). Bird filed a pretrial motion to dismiss the indictment,
contending that Congress impermissibly exceeded its power under the
Commerce Clause when it enacted FACE and citing the Supreme Court’s
decision in United States v. Morrison, 529 U.S. 598 (2000), as
effecting a change in the Commerce Clause analysis that now renders
moot our previous decision in United States v. Bird, 124 F.3d 667
(5th Cir. 1997) (“Bird I”). The district court agreed and granted
Bird’s motion to dismiss the indictment, concluding that its ruling
was in line with the Supreme Court’s decisions in both United
States v. Lopez, 514 U.S. 549 (1995), and Morrison.
On appeal, the Government argues the district court
incorrectly concluded that the Supreme Court’s decision in Morrison
preempted this Court’s previous decision in Bird I.3 Meanwhile,
Bird maintains that Morrison clearly rejected the “national
commercial market” theory of aggregation espoused in Bird I and
argued here by the Government. The majority has concluded that
Morrison does not “materially affect[]” our decision in Bird I.
3
While the Government may be correct in its argument that each circuit court to have
addressed this issue has upheld FACE as a constitutional exercise of Congress’s powers under the
Commerce Clause, it is critical to point out that only two circuits have engaged in such an analysis
post-Morrison. See Norton v. Ashcroft, 298 F.3d 547, 556 (6th Cir. 2002); United States v. Gregg,
226 F.3d 253, 261-67 (3d Cir. 2000).
-3-
As a preliminary matter, I incorporate by reference here the
discussion and reasons I offered in my dissent in Bird I. 124 F.3d
at 685-92. Because I believe the holding in Morrison dictates even
more clearly that Congress exceeded its Commerce Clause authority
when it enacted FACE, I again respectfully dissent.
Just as Lopez, the then most recent Supreme Court exegesis on
the bounds of Congress’s Commerce Clause authority, guided this
court in Bird I, so too Morrison charts our course here.
I. The regulated activity is intrastate and noncommercial.
The Supreme Court’s decision in Lopez set forth three broad
categories under which Congress could regulate intrastate
activities through its Commerce Clause powers. 514 U.S. at 558.
The third category, and the one at issue here, provides that
Congress can regulate certain intrastate activities that have a
substantial effect on interstate commerce. Id. at 558-59. In
Lopez, the statute made the subject of the Court’s review was the
Gun-Free School Zones Act of 1990 (“GSA”), a criminal statute that
made it a federal offense to knowingly possess a firearm in a
school zone. See 18 U.S.C. § 922(q)(1)(A) (1994). The Court
determined that the GSA was “a criminal statute that by its terms
has nothing to do with ‘commerce’ or any sort of economic
enterprise, however broadly one might define those terms.” Id. at
561. Accordingly, the Lopez Court concluded that the GSA was
unconstitutional in part because it regulated an activity that was
noneconomic and therefore could not be justified under the third
-4-
prong of Congress’s Commerce Clause authority. Id. at 551, 560-61,
(noting that “[e]ven Wickard [v. Filburn, 317 U.S. 111 (1942)],
which is perhaps the most far reaching example of Commerce Clause
authority over intrastate activity, involved economic activity in
a way that the possession of a gun in a school zone does not”),
566.
Then, in Morrison, the Supreme Court again was faced with a
federal statute, the Violence Against Women Act (“VAWA”), 42 U.S.C.
§ 13981, that sought to regulate criminal activity, this time in
the form of gender-motivated violence. The Court first observed
that “a fair reading of Lopez shows that the noneconomic, criminal
nature of the conduct at issue was central to our decision in that
case.” 529 U.S. at 610 (emphasis added). The Morrison Court
further explicated that requiring the regulation to be of an
economic activity is essential to the limitations set forth in the
Commerce Clause, noting that “Lopez’s review of Commerce Clause
case law demonstrates that in those cases where we have sustained
federal regulation of intrastate activity based upon the activity's
substantial effects on interstate commerce, the activity in
question has been some sort of economic endeavor.” Id. at 611
(emphasis added) (citing Lopez, 514 U.S. at 559-60)). Using the
lack of an economic element in the activity being regulated as
partial justification, the Court subsequently struck down VAWA as
an impermissible exercise of Congress’s Commerce Clause. Morrison,
529 U.S. at 617-18.
-5-
As in Lopez and Morrison, the criminal activity at issue here,
the intentional damaging and destroying of a facility that provides
reproductive health services, is neither an economic nor a
commercial activity. To so conclude is not a novel interpretation
of the statute or the underlying conduct, as the question of how to
define the activity proscribed by FACE was previously answered by
this court in Bird I. This court expressly stated that FACE is “a
federal criminal statute regulating intrastate, noncommercial
conduct.”4 124 F.3d at 675. Therefore, the analysis here embraces
the binding determination that the regulated conduct in this case
is noncommercial in nature.
The Court in Morrison further suggested that Congress could
not, in the absence of a regulated activity which is economic or
commercial, simply exercise a general police power, stating:
The regulation and punishment of intrastate violence that
is not directed at the instrumentalities, channels, or
goods involved in interstate commerce has always been the
province of the States. Indeed, we can think of no
better example of the police power, which the Founders
denied the National Government and reposed in the States,
than the suppression of violent crime and vindication of
its victims.
529 U.S. at 618 (internal citation omitted). Moreover, as the
4
In sustaining the statute’s constitutionality, however, the court reasoned that Lopez could
not be read as requiring that the regulated activity be, at a minimum, commercial. 124 F.3d at 675.
The Bird I majority also observed that Congress could have ensured that FACE reached only those
activities which substantially affect interstate commerce either by including a jurisdictional element
or through its own legislative findings. 124 F.3d at 675. It was conceded that FACE did not contain
a jurisdictional element; thus, the Bird I majority premised its conclusion that FACE was
constitutional based on the congressional findings that abortion-related services were part of a
“national commercial market.” Id. at 678-82.
-6-
Court in Lopez noted: “Under our federal system, the ‘States
possess primary authority for defining and enforcing the criminal
law.’” 514 U.S. at 561 n.3 (internal quotation marks and citations
omitted). Congress itself has noted that state statutes, including
criminal trespass, criminal contempt, disorderly conduct, resisting
arrest, and unlawful assembly are more than adequate to address the
activities sought to be regulated by FACE. See H.R. REP. NO. 103-
306, at 22 (1993), reprinted in 1994 U.S.C.C.A.N. 699, 717.
Because Congress does not have a general police power, it
surely cannot have the authority to define as criminal conduct
under federal law private acts that are intended to interfere with
another person’s exercise of some constitutional right, whether
that right is to be free from gender-based violence as in VAWA or
to choose to access reproductive health services, such as abortion,
as in FACE.5 Purely criminal activities that are not premised in
economic or commercial contexts are subject to an entirely
different scheme of congressional regulations, none of which is
justifiable under the Commerce Clause.
II. Morrison expressly precludes the aggregation of
noncommercial, criminal activity.
Having concluded that the criminal, intrastate activity
proscribed by FACE is neither commercial nor economic in nature,
5
While the Fourteenth Amendment prohibits states from denying individuals constitutional
rights, such protection does not extend to acts of private parties or entities. Civil Rights Cases, 109
U.S. 3, 20-26 (1883).
-7-
this analysis focuses on how the Supreme Court’s decision in
Morrison expressly rejects the contention that such activity can be
aggregated in order to create a substantial effect on interstate
commerce.
Morrison refutes the concept of an aggregate effect on a
national market when the conduct proscribed is violent criminal
conduct. 529 U.S. at 615-19. As a preliminary matter, the
Commerce Clause may not reach noneconomic activity that only
affects commerce through a “but-for” causal chain. Id. at 613.
The Morrison Court explained:
The reasoning that petitioners advance seeks to follow
the but-for causal chain from the initial occurrence of
violent crime (the suppression of which has always been
the prime object of the States' police power) to every
attenuated effect upon interstate commerce. If accepted,
petitioners’ reasoning would allow Congress to regulate
any crime as long as the nationwide, aggregated impact of
that crime has substantial effects on employment,
production, transit, or consumption. Indeed, if Congress
may regulate gender-motivated violence, it would be able
to regulate murder or any other type of violence since
gender-motivated violence, as a subset of all violent
crime, is certain to have lesser economic impacts than
the larger class of which it is a part.
Id. at 615.
While Bird I concluded that Wickard, reaffirmed by Lopez,
permits the aggregation of intrastate, noncommercial activity, the
Supreme Court’s more recent decision in Morrison expressly
forecloses any such aggregation. Specifically, the Supreme Court
announced: “We accordingly reject the argument that Congress may
regulate noneconomic, violent criminal conduct based solely on that
-8-
conduct’s aggregate effect on interstate commerce. The Constitution
requires a distinction between what is truly national and what is
truly local.” Id. at 617-18 (citing Lopez, 514 U.S. at 568). This
holding in Morrison clearly undermines the reasoning employed by
Bird I, in which this court determined that under Wickard’s
aggregation theory, “there can be no question that Congress is able
to regulate noncommercial, intrastate activity that substantially
affects interstate commerce.” 124 F.3d at 676. It follows,
therefore, that Morrison’s limitation of the aggregation principle,
necessarily compels a finding that Congress exceeded its Commerce
Clause authority when it enacted FACE, thus eliminating Bird I’s
precedential value as it relates to this concept.
CONCLUSION
In sum, FACE, as interpreted now in light of Morrison,
represents another effort by Congress to dismantle the federalist
foundation upon which this country was designed to function. The
regulation of purely intrastate, noneconomic, noncommercial
criminal activity that is not essential to a broader regulatory
scheme surely cannot be within Congress’s purview. To uphold the
constitutionality of this statute in the face of the teachings
provided by Lopez and Morrison not only ignores the precedents
established by both of these decisions, but also essentially grants
to Congress the unfettered authority to govern in areas the Framers
contemplated would be regulated only by the states. Because I
believe the Constitution and the Supreme Court disallow the result
-9-
reached by the majority’s holding, I respectfully dissent.
-10-