United States v. James Hill, III

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-4660

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

JAMES WILLIAM HILL, III,

Defendant - Appellee.

------------------------------

MATTHEW SHEPARD FOUNDATION; FREESTATE JUSTICE, INC.;
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INCORPORATED;
THE ANTI-DEFAMATION LEAGUE; TREVOR PROJECT; PUBLIC JUSTICE
CENTER; JAPANESE AMERICAN CITIZENS LEAGUE,

Amici Supporting Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:16-cr-00009-JAG-1)

Argued: March 20, 2019 Decided: June 13, 2019

Before MOTZ, AGEE, and WYNN, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
Judge Motz joined. Judge Agee wrote a dissenting opinion.
ARGUED: Vikram Swaruup, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C, for Appellant. Patrick L. Bryant, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellee. ON BRIEF: Eric S.
Dreiband, Assistant Attorney General, Thomas E. Chandler, Tovah R. Calderon,
Appellate Section, Civil Rights Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney,
Alexandria, Virginia, S. David Schiller, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellant. Geremy C.
Kamens, Federal Public Defender, Alexandria, Virginia, Mary E. Maguire, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia; Elizabeth W. Hanes, CONSUMER LITIGATION ASSOCIATES,
P.C., Richmond, Virginia, for Appellee. Jennifer L. Kent, FREESTATE JUSTICE, INC.,
Baltimore, Maryland; Joseph Dudek, GOHN HANKEY & BERLAGE LLP, Baltimore,
Maryland; Omar Gonzalez-Pagan, Cathren Cohen, LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC., New York, New York, for Amici Curiae.

2
WYNN, Circuit Judge:

In this appeal, we confront the issue of whether the federal Hate Crimes

Prevention Act of 2009 (“Hate Crimes Act”), 18 U.S.C. § 249(a)(2), may be

constitutionally applied to an unarmed assault of a victim engaged in commercial activity

at his place of work. This appears to be an issue of first impression in this Circuit or any

other.

Defendant James Hill, III (“Defendant”) boastfully admitted to physically and

violently assaulting a coworker preparing packages for interstate sale and shipment

because of the coworker’s sexual orientation. But after a jury convicted Defendant for

violating the Hate Crimes Act, the district court granted Defendant’s motion for judgment

of acquittal on grounds that the Hate Crimes Act, as applied to Defendant’s conduct,

exceeded Congress’s authority under the Commerce Clause. Because we conclude that

as applied to Defendant’s conduct, the Hate Crimes Act easily falls under Congress’s

broad authority to regulate interstate commerce, we reverse and remand to the district

court to reinstate the jury’s guilty verdict.

I.

At the time of the assault, Defendant and Curtis Tibbs (“Tibbs”) 1 were coworkers

at an Amazon fulfillment center in Chester, Virginia. Defendant worked as a “re-binner”

at the facility, moving items from conveyor belts and placing them into bins in a wall.

1
When this case was previously before this Court, the parties referred to Tibbs as
“C.T.” On appeal, both parties refer to “C.T.” by his full name. Therefore, we have also
done so.

3
Tibbs worked as a “packer,” loading these items from the bins into boxes for packaging,

scanning them, packaging them in a box, and then placing the boxes on a conveyor belt to

move to the next department.

Video shows that shortly after the beginning of Tibbs’s shift on May 22, 2015, as

Tibbs carried items to load into a box, Defendant approached Tibbs from behind and—

without provocation or warning—repeatedly punched him in the face. As a result of the

assault and battery, Tibbs suffered significant bruising, cuts to his face, and a bloody

nose. After the incident, Tibbs went to Amazon’s in-house medical clinic and then to the

nearest hospital for treatment. Tibbs did not return to work on the production line for the

remaining several hours of his ten-hour shift. Amazon shut down the area of the incident

for approximately 30–45 minutes to clean blood off the floor, but Amazon did not miss

any “critical pull times,” or packaging deadlines, as a result of the incident because other

areas of the facility absorbed the work. J.A. 24. An expert witness testified that,

notwithstanding Tibbs’ absence and the temporary closure of his workspace, the

performance of the fulfillment center as a whole during the shift in which the incident

occurred was in-line with its performance during other shifts.

Defendant told an Amazon investigator and a local police officer that he assaulted

Tibbs solely because Tibbs was gay. In particular, Defendant stated that “his personal

belief is he didn’t like [homosexuals],” that Tibbs “disrespected him because he is a

homosexual,” and that Defendant “does not like homosexuals, so he punched [Tibbs].”

J.A. 353, 383. Defendant offered no other explanation for the assault.

4
 The Commonwealth of Virginia initially charged Defendant with misdemeanor

assault and battery in state court, but the state prosecutor subsequently requested that the

United States “assume prosecution of this case as a hate crime” under the Hate Crimes

Act, in part because Virginia’s hate crime statute does not cover crimes based on sexual

orientation. J.A. 25.

On July 24, 2015, the United States Attorney General certified that Defendant’s

prosecution under the Hate Crimes Act “is in the public interest and is necessary to

secure substantial justice.” J.A. 25. Thereafter, the Commonwealth of Virginia dropped

the misdemeanor assault charge, and on January 19, 2016, a federal grand jury indicted

Defendant under the Hate Crimes Act, 18 U.S.C. § 249(a)(2). The indictment stated that:

On or about May 22, 2015 . . . [Defendant] did willfully cause bodily injury
to [Tibbs] by assaulting [Tibbs], including by punching [Tibbs], because of
[Tibbs’s] actual and perceived sexual orientation, namely that he is gay;
and that, in connection with the offense, [Defendant] [1] interfered with
commercial and other economic activity in which [Tibbs] was engaged at
the time of the conduct, and which offense [2] otherwise affected interstate
and foreign commerce.

J.A. 19.

Defendant moved to dismiss the indictment, arguing in relevant part that Section

249(a)(2) of the Hate Crimes Act, on its face and as applied to him, exceeded Congress’s

power under the Commerce Clause. The district court agreed with Defendant’s as-

5
applied challenge and dismissed the indictment. 2 United States v. Hill, 182 F. Supp. 3d

546, 555–56 (E.D. Va. 2016). The Government appealed the district court’s dismissal.

In an unpublished opinion, a divided panel of this Court reversed and remanded

the district court’s decision with directions to reinstate the indictment. United States v.

Hill, 700 F. App’x 235 (4th Cir. 2017). The majority opinion stated that “[o]n its face,

the indictment is legally sufficient and does not present an unconstitutional exercise of

Congressional power.” Id. at 236–37. However, because the case presented an as-

applied challenge, the majority opinion further concluded that it was “premature to

determine the constitutional issues” because “whether [Defendant’s] conduct sufficiently

affects interstate commerce as to satisfy the constitutional limitations placed on

Congress’ Commerce Clause power may well depend on a consideration of facts, and

because the facts proffered here may or may not be developed at trial.” Id. at 237.

Therefore, the majority opinion did not resolve the merits of Defendant’s Commerce

Clause challenge.

On remand, the Government dropped reliance on the statutory element that the

offense “otherwise affect[ed] interstate or foreign commerce.” 18

U.S.C. § 249(a)(2)(B)(iv)(II). Instead, the Government relied exclusively on the theory

that Defendant’s assault of Tibbs “interfere[d] with commercial or other economic

2
The district court did not address Defendant’s facial challenge to the Hate
Crimes Act. Because the parties have not briefed the issue of whether the Act is facially
valid, we also decline to decide this issue.

6
activity in which the victim [was] engaged at the time of the conduct.” Id.

§ 249(a)(2)(B)(iv)(I); J.A. 440.

The district court held a two-day jury trial beginning on January 22, 2018. The

district court instructed the jury that the Government must prove beyond a reasonable

doubt that (1) Defendant caused bodily injury to Tibbs; (2) Defendant did so willfully; (3)

Defendant did so because of Tibbs’s actual or perceived sexual orientation; and (4)

Defendant’s conduct “interfered with the commercial or economic activity in which

Tibbs was engaged at the time of the conduct.” J.A. 541. The jury found Defendant

guilty.

Thereafter, pursuant to Federal Rule of Criminal Procedure 29, Defendant moved

for judgment of acquittal, arguing that the Hate Crimes Act is unconstitutional as applied

to his assault of Tibbs. The district court granted Defendant’s motion, concluding that

the Hate Crimes Act as applied exceeds Congress’s Commerce Clause authority.

Specifically, the district court held that the Hate Crimes Act as applied does not regulate

activity that substantially affects interstate commerce. The Government timely appealed

the district court’s judgment of acquittal.

II.

On appeal, the Government argues that the district court erred in granting

Defendant’s motion for judgment of acquittal on grounds that the Hate Crimes Act, as

applied to Defendant’s conduct, exceeds Congress’s authority under the Commerce

Clause. We review de novo a district court’s award of judgment of acquittal. United

States v. Singh, 518 F.3d 236, 246 (4th Cir. 2008). To the extent that there are factual

7
disputes, we view “the evidence in the light most favorable to the Government,” which

prevailed at trial. Id. at 252.

A.

It “is a well-worn yet ever-vital maxim that the Constitution creates a Federal

Government of enumerated powers.” United States v. Bollinger, 798 F.3d 201, 208 (4th

Cir. 2015) (alterations and internal quotation marks omitted) (quoting United States v.

Lopez, 514 U.S. 549, 552 (1995)). Among these enumerated powers, the Commerce

Clause permits Congress “[t]o regulate Commerce with foreign Nations, and among the

several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.

Under the Supreme Court’s modern Commerce Clause jurisprudence, “Congress is

limited to regulating three broad categories of interstate activity: (1) ‘the use of the

channels of interstate commerce,’ (2) ‘the instrumentalities of interstate commerce, or

persons or things in interstate commerce,’ and (3) ‘activities that substantially affect

interstate commerce.’” Bollinger, 798 F.3d at 209 (quoting Lopez, 514 U.S. at 558–59).

In limiting federal authority to these categories, the Supreme Court has consistently

invoked themes of federalism and its view that “Congress’s interstate power must be

‘read carefully to avoid creating a general federal authority akin to the police

power.’” Id. at 211 (quoting Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536

(2012)).

Congress paid close attention to the scope of its authority under the Commerce

Clause when it enacted the Hate Crimes Act, which was designed to strengthen federal

efforts to combat violent hate crimes—crimes targeting victims based on certain

8
enumerated characteristics. National Defense Authorization Act for Fiscal Year

2010, Pub. L. 111-84, §§ 4701–13, 123 Stat. 2190, 2835–44 (2009). The statute’s

substantive provisions are preceded by congressional findings regarding the prevalence

and impact of violent hate crimes throughout the country, as well as Congress’s intent to

assist state and local efforts to combat such violence. Id. § 4702.

Distinguishing hate crimes from other violent crimes—over which, Congress

emphasized, States continue to retain exclusive prosecutorial authority—Congress

concluded that violent hate crimes “substantially affect[] interstate commerce in many

ways.” Id. § 4702(6). Among these effects, Congress explained that:

(A) The movement of members of targeted groups is impeded, and
members of such groups are forced to move across State lines to
escape the incidence or risk of such violence.

(B) Members of targeted groups are prevented from purchasing goods
and services, obtaining or sustaining employment, or participating in
other commercial activity.

(C) Perpetrators cross State lines to commit such violence.

(D) Channels, facilities, and instrumentalities of interstate commerce are
used to facilitate the commission of such violence.

(E) Such violence is committed using articles that have traveled in
interstate commerce.

Id. As such, Congress concluded that “[f]ederal jurisdiction over certain violent crimes

motivated by bias enables Federal, State, and local authorities to work together as

partners in the investigation and prosecution of such crimes.” Id. § 4702(9).

To achieve this state-federal collaboration, the Hate Crimes Act created several

federal criminal offenses arising out of violent acts undertaken with animus towards

9
various actual or perceived personal characteristics of the victim. Of particular relevance,

the statute provides that any person who, under certain specified circumstances,

“willfully causes bodily injury to any person . . . because of the actual or perceived

religion, national origin, gender, sexual orientation, gender identity, or disability of any

person . . . shall be imprisoned not more than 10 years.” 18 U.S.C. § 249(a)(2)(A)(i).

Such conduct may be prosecuted under the statute when it, inter alia, “interferes with

commercial or other economic activity in which the victim is engaged at the time of the

conduct.” Id. § 249(a)(2)(B)(iv)(I).

In adopting the Hate Crimes Act, Congress sought to “invoke the full scope of [its]

Commerce Clause power, and to ensure that hate crimes prosecutions brought under [§

249(a)(2) would] not be mired in constitutional litigation.” H.R. Rep. No. 111–86, at

15 (2009). To ensure that conduct criminalized under the statute would have “the

requisite connection to interstate commerce,” Congress adverted to several Supreme

Court decisions setting forth the outer limits of Congress’s authority under the Commerce

Clause—including United States v. Lopez, in which the Supreme Court held that a federal

statute proscribing possession of guns in school zones violated the Commerce Clause,

514 U.S. at 567, and United States v. Morrison, in which the Supreme Court held that a

federal statute providing a civil remedy for victims of gender-motivated violence violated

the Commerce Clause, 529 U.S. 598, 601–02 (2000), see id. (“To avoid constitutional

concerns arising from the decision in [Lopez], the bill requires that the Government prove

beyond a reasonable doubt, as an element of the offense, a nexus to interstate commerce

in every prosecution brought under one of the newly created categories of 18 U.S.C.

10
249(a)(2).”); see also id. (explaining that the interstate commerce element was “drawn to

comport with Supreme Court guidance in Lopez and [Morrison]”); id. (explaining that

“[t]he interstate commerce nexus required by the bill is analogous to that required in

other Federal criminal statutes,” such as the Church Arson Prevention Act of 1996, 18

U.S.C. § 247). Without question, the Hate Crimes Act reflects Congress’s carefully

considered judgment that the scope of the statute complies with Congress’s authority

under the Commerce Clause, as that authority has been understood by the Supreme

Court.

Here, the Commonwealth’s Attorney in Chesterfield County recognized that

Defendant could not be prosecuted for a hate crime in Virginia for his admission of

having assaulted Tibbs because he is gay. That is because the Virginia assault statute that

includes enhancements for hate crimes does not include increased punishment for crimes

involving sexual orientation. Va. Code Ann. § 18.2–57 (covering assaults and batteries

resulting in bodily injury committed because of race, religious conviction, color, or

national origin).

But because Tibbs was assaulted while preparing packages for interstate sale and

shipment, the Commonwealth’s Attorney’s Office in Chesterfield County decided to

specifically refer this case to the U.S. Attorney’s Office for the Eastern District of

Virginia. Following the U.S. Attorney General’s certification that prosecuting Defendant

at the federal level is in the public interest and is necessary to secure substantial justice,

the Government indicted Defendant under the Hate Crimes Act. Defendant’s prosecution

therefore additionally reflects the considered judgment of both the Attorney General and

11
Commonwealth of Virginia that the statute’s scope neither exceeds Congress’s

Commerce Clause authority nor interferes with the Commonwealth’s police power.

B.

Against this legal backdrop, the Government contends that the district court erred

in holding that Defendant’s assault and battery of Tibbs lacked sufficient connection to

interstate commerce to support Defendant’s conviction under the Hate Crimes Act.

Specifically, the Government emphasizes that the jury found that the assault and

battery—which occurred while Tibbs was working as an Amazon employee and

preparing packages for interstate sale and shipment—“interfere[d] with commercial or

other economic activity in which [Tibbs was] engaged at the time of the [assault].” 18

U.S.C. § 249(a)(2)(B)(iv)(I). According to the Government, that finding renders

Defendant’s conviction consistent with Congress’s Commerce Clause authority.

Whether the Hate Crimes Act may be constitutionally applied to an unarmed

assault of a victim engaged in commercial activity at his place of work appears to be an

issue of first impression in this Circuit or any other. See, e.g., United States v. Miller,

767 F.3d 585, 589, 602 (6th Cir. 2014) (reversing Hate Crimes Act convictions due to

erroneous jury instructions and declining to consider an as-applied challenge to the

prosecution of a series of assaults on Amish men); United States v. Mason, 993 F. Supp.

2d 1308, 1317 (D. Or. 2014) (rejecting an as-applied challenge involving an assault with

a weapon, but noting that “it might be unconstitutional to apply the [Hate Crimes Act] . . .

if the weapon [the defendant] used had not traveled in interstate or foreign commerce, or

if he had not used any weapon at all”); United States v. Jenkins, 909 F. Supp. 2d 758,

12
764, 773 (E.D. Ky. 2012) (concluding, albeit reluctantly, that the Hate Crimes Act is

constitutional as applied to defendants who kidnapped and transported the victim along a

federal highway).

Despite this lack of precedential guidance, the parties agree that Defendant’s

conviction is constitutional, if at all, as an effort to regulate “activities that substantially

affect interstate commerce.” Bollinger, 798 F.3d at 209 (internal quotation marks

omitted). The Government argues that, by “interfering” with Tibbs’s packaging and

shipping of products, Defendant’s conduct “substantially affect[ed] interstate commerce,”

as that phrase has been interpreted in decisions upholding federal prosecutions for

robbery and extortion under the Hobbs Act, 18 U.S.C. § 1951(a), and arson under 18

U.S.C. § 844(i). We agree.

Similar to the Hate Crimes Act, the Hobbs Act includes an interstate commerce

element, establishing a federal crime for robbery or extortion that “in any way or degree

obstructs, delays, or affects commerce or the movement of any article or commodity in

commerce.” 18 U.S.C. § 1951(a); see also Taylor v. United States, 136 S. Ct. 2074, 2080

(2016) (“[T]he Hobbs Act . . . contains such a[] [jurisdictional] element—namely, the

conduct criminalized must affect or attempt to affect commerce in some way or

degree.”). The Supreme Court addressed a Commerce Clause challenge to the Hobbs Act

in Taylor, which involved the prosecution of a defendant who attempted to steal

marijuana and cash from two drug dealers. 136 S. Ct. at 2078–79. The Court held that

the defendant’s prosecution complied with the Commerce Clause, characterizing its

holding as “straightforward and dictated by [the Court’s] precedent.” Id. at 2077.

13
Specifically, the Court explained that Congress’s authority to regulate purely intrastate

production, possession, and sale of marijuana—due to the aggregate effect of those

activities on interstate commerce—compelled the conclusion that Congress may likewise

regulate conduct that interferes with or affects such activities. See id. at 2080.

Taylor, the Supreme Court held, was controlled by the Court’s decision in

Gonzales v. Raich, 545 U.S. 1 (2005). In Raich, the Supreme Court analyzed Congress’s

authority to regulate the marijuana market, concluding that Congress may “regulate

purely local activities that are part of an economic ‘class of activities’ that have a

substantial effect on interstate commerce.” Taylor, 136 S. Ct. at 2080 (quoting Raich,

545 U.S. at 17). The Taylor Court explained that its holding “require[d] no more than

that we graft our holding in Raich onto the commerce element of the Hobbs Act.” Id..

Because “the activity at issue [in Taylor], the sale of marijuana, is unquestionably an

economic activity . . . [i]t therefore follows as a simple matter of logic that a robber who

affects or attempts to affect even the intrastate sale of marijuana . . . affects or attempts to

affect commerce over which the United States has jurisdiction.” Id. (emphasis added).

Notably, the Court explained that the Government did not need to provide evidence of the

robbery’s impact on interstate commerce because “[b]y targeting a drug dealer in this

way, a robber necessarily affects or attempts to affect commerce over which the United

States has jurisdiction”—namely, the sale of marijuana. Id. at 2078.

Taylor, therefore, establishes that, pursuant to its power under the Commerce

Clause, Congress may proscribe violent conduct when such conduct interferes with or

14
otherwise affects commerce over which Congress has jurisdiction. 3 See id. Importantly,

Congress may regulate violent conduct interfering with interstate commerce even when

the conduct itself has a “minimal” effect on such commerce. Id. at 2079, 2081; see also

United States v. Williams, 342 F.3d 350, 354 (4th Cir. 2003) (noting that Lopez and

Morrison “do not disturb our continued application of this ‘minimal effects’ standard [to

3
Our dissenting colleague suggests that Taylor’s analysis as to the scope of
Congress’s authority under the Commerce Clause to proscribe violent conduct is sui
generis—that it extends only to “Hobbs Act robberies in which a defendant targets drugs
or drug proceeds.” Post at 56. But contrary to that assertion, Taylor expressly followed
the Supreme Court’s decision in Raich—a decision which places itself in the mainstream
of the Supreme Court’s “modern-era Commerce Clause jurisprudence” and which is
unrelated to the Hobbs Act. 545 U.S. at 23. This Court does not have license to reject
the generally applicable reasoning set forth in a Supreme Court opinion. See Surefoot LC
v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008) (Gorsuch, J.) (“[O]ur job as a
federal appellate court is to follow the Supreme Court’s directions, not pick and choose
among them as if ordering from a menu.”). Additionally, any holding that Taylor’s
construction of the scope of Congress’s authority under the Commerce Clause extends
only to a subset of Hobbs Act cases would amount to an impermissible policy decision by
the judiciary to favor one class of violent offenders—individuals, like Defendant, who
engage in bias-motivated workplace violence—over another class of violent offenders—
individuals who rob drug dealers. The Constitution assigns that policy choice to the
political branches, not the courts. See Dowling v. United States, 473 U.S. 207, 214
(1985) (“It is the legislature, not the Court, which is to define a crime, and ordain its
punishment.” (quoting United States v. Wiltberger, 5 Wheat. 76, 95 (1820)).

The dissenting opinion further states that unlike Taylor, which involved “purely
intrastate activities that can be regulated as part of the comprehensive regulation of an
interstate economic market,” this case does not involve an “interstate economic market.”
Post at 56. To the contrary, the Hate Crimes Act does not criminalize all intrastate hate
crimes, but rather only those hate crimes that interfere with an employee’s ongoing
commercial and economic activity. Here, there is no question that workers, like Tibbs,
are part of the “interstate economic market[s]” for labor and retail goods. And, in this as-
applied challenge, there also is no question that Defendant’s assault of Tibbs interfered
with his preparation of goods for interstate sale and shipment.

15
Hobbs Act prosecutions]”); id. (collecting circuit cases that have “uniformly held that the

Hobbs Act’s jurisdictional predicate still requires only a minimal effect on commerce”).

Like the Hobbs Act and the Hate Crimes Act, the federal arson statute includes an

interstate commerce element, establishing a federal crime for burning “any . . . property

used in interstate or foreign commerce or in any activity affecting interstate or foreign

commerce.” 18 U.S.C. § 844(i). Thus was found to be so in Russell v. United States, 471

U.S. 858 (1985), in which the Supreme Court unanimously held that the Government

constitutionally applied the arson statute to prosecute a defendant who set fire to a two-

unit apartment building. Id. at 858–62.

In reaching that conclusion in Russell, the Court noted that the statute’s broad

phrasing—covering any property used in an activity affecting interstate commerce—was

intended to “protect all business property, as well as some additional property that might

not fit that description.” Id. at 862. The rental property at issue was “unquestionably”

covered by the statute, the Court explained, because “the local rental of an apartment unit

is merely an element of a much broader commercial market in rental properties,” and

“[t]he congressional power to regulate the class of activities that constitute the rental

market for real estate includes the power to regulate individual activity within that

class.” Id. As in Taylor, the Court thus held that Congress may regulate violent conduct

when such conduct interferes with or affects commerce subject to congressional

regulation—there, the commercial market in rental properties. See United States v.

Garcia, 768 F.3d 822, 829–30 (9th Cir. 2014) (“[T]he congressional power to regulate

16
the class of activities that constitute the rental market for real estate includes the power to

regulate individual activity within that class.” (quoting Russell, 471 U.S. at 862)).

The Supreme Court again addressed the constitutional sweep of the federal arson

statute in Jones v. United States, 529 U.S. 848 (2000). There, the Court construed the

statute to permit the Government to pursue a prosecution only when a defendant’s

conduct affects “property currently used in commerce or in an activity affecting

commerce,” thereby excluding private residences lacking a nexus to interstate commerce.

529 U.S. at 859. In so doing, the Court sought to avoid the potential constitutional

concerns that may have arisen had Congress sought to “render . . . traditionally local

criminal conduct . . . a matter for federal enforcement.” Id. at 858 (internal quotation

marks omitted). As in Russell, the Court’s analysis in Jones makes plain that when a

defendant’s conduct interferes with or otherwise affects commerce subject to

congressional regulation, that conduct may be federally regulated under the Commerce

Clause.

Following Jones, this Circuit has affirmed federal arson convictions in cases

involving defendants who set fires to a restaurant and a church providing daycare

services because those buildings were “actively engaged in commercial activity.” See

United States v. Terry, 257 F.3d 366, 370 (4th Cir. 2001) (“Regardless of the [church’s]

effect on interstate commerce, the daycare center’s presence transformed the building

into one that was being actively employed for commercial purposes”); United States v.

Aman, 480 F. App’x 221, 223 (4th Cir. 2012) (noting, in a case dealing with the arson of

a restaurant, that the federal arson statute’s “jurisdictional hook as interpreted

17
in Jones serves the purpose of limiting the statute to arson cases where there really was a

substantial and non-attenuated effect on interstate commerce” (citations and alterations

omitted)). Therefore, the arson cases, like the Hobbs Act cases, establish that when

Congress may regulate the commercial activities taking place in a building, it also can

criminalize activities that interfere with those properties. 4

Taken together, the Supreme Court’s decisions in Taylor, Russell, Jones, and this

Circuit’s decisions in Terry and Aman, establish that when Congress may regulate an

economic or commercial activity, it also may regulate violent conduct that interferes with

or affects that activity. Hence, if individuals are engaged in ongoing economic or

commercial activity subject to congressional regulation—as Tibbs was at the time of the

assault—then Congress also may prohibit violent crime that interferes with or affects

such individuals’ ongoing economic or commercial activity, including the type of bias-

motivated assaults proscribed by the Hate Crimes Act. 5

4
We also note that other circuits have upheld arson convictions with less direct
connection to commercial activity than the assault at issue here. See, e.g., United States
v. Craft, 484 F.3d 922, 928 (7th Cir. 2007) (upholding a conviction for the arson of
temporarily unoccupied rental properties because the properties had not been
“permanently remove[d] . . . from the stream of commerce.”); United States v. Jimenez,
256 F.3d 330, 334 (5th Cir. 2001) (upholding a conviction for the arson of a home office
within a family home).
5
The dissenting opinion maintains that because Section 249(a)(2)(B)(iv)(I) does
not include the term “interstate,” it “does not require that the class of activities the victim
was engaged in substantially affect[] interstate commerce, nor does it limit the class of
activities regulated to commerce over which Congress has the authority to regulate.”
Post at 49. This is incorrect. As Raich established, Congress may “regulate purely local
activities that are part of an economic ‘class of activities’ that have a substantial effect on
interstate commerce.” 545 U.S. at 17 (citations omitted). To that end, the Hate Crimes
(Continued)
18
 Defendant does not dispute—apparently for the good reason that it is beyond

dispute—that Congress enjoys the authority to regulate the underlying commercial

activity Tibbs was engaged in at the time of the assault—the preparation of goods for sale

and shipment across state lines. See United States v. Darby, 312 U.S. 100, 113 (1941)

(noting that “the shipment of manufactured goods interstate is such [interstate]

commerce”). Thus, upholding Defendant’s conviction “requires no more than that we

graft [the Supreme Court’s] holding in [Darby] onto the commerce element of the [Hate

Crimes] Act.” Taylor, 136 S. Ct. at 2080. Because Tibbs’ activity—preparing packages

for interstate sale and shipment—“is unquestionably an economic activity . . . [i]t

therefore follows as a simple matter of logic that a [defendant] who affects or attempts to

affect even the intrastate” preparation of packages for interstate sale and shipment

“affects or attempts to affect commerce over which the United States has jurisdiction.”

Id.

Act, as applied, permits the prosecution of an intrastate hate crime only when it interferes
with the victim’s ongoing commercial and economic activities—here, the preparation of
packages for interstate sale and shipment. Contrary to the dissenting opinion’s assertion,
post at 49–50, in drafting the Hate Crime Act’s interstate commerce jurisdictional
elements, Congress invoked the “full scope of [its] Commerce Clause power” and drew
the legislation to comport with Lopez and Morrison, which “set[] forth outer reaches of
[Congress’s] commerce power.” H.R. Rep. No. 111–86, at 15. That power extends to
intrastate violent conduct that interferes with commercial or economic activity over
which Congress has regulatory power—here the interstate markets for labor and retail
goods. Defendant’s prosecution, therefore, falls squarely within Congress’s authority to
regulate intrastate activities when they interfere with interstate commerce that Congress
may permissibly regulate. Accordingly, the dissenting opinion errs in concluding that the
jury failed to convict Defendant of a crime with a “stated interstate or foreign commerce
jurisdictional basis.” Post at 49–50.

19
 Here, the evidence introduced at trial provided a more-than-adequate basis for the

jury to find that Tibbs’ assault “interfered” with or “affected” Defendant’s preparation of

packages for interstate sale and shipment, and therefore “affect[ed] commerce over which

the United States has jurisdiction.” Id. At the time of the physical assault, Tibbs was

pulling boxes and packaging them for interstate shipment. As a result of the assault, the

packages prepared by Tibbs flew into the air and onto the ground. After the assault,

Amazon closed the entire area where Tibbs and Defendant were working so that Tibbs’s

blood could be cleaned off the floor. And because of the assault, Tibbs missed the rest of

his shift, and his work had to be absorbed by other facility employees.

That Amazon was able to absorb the impact of Tibbs’ absence without missing

any key shipping deadlines and that the fulfillment center’s performance during the shift

impacted by Tibbs’ assault was in-line with its performance during other shifts does not

call into question this determination. On the contrary, the Supreme Court and this Court

repeatedly have clarified that Congress may regulate interference with commerce, even if

the effect of the interference on interstate commerce in an individual case is “minimal.”

See Taylor, 136 S. Ct. at 2081 (“It makes no difference under our cases that any actual or

threatened effect on commerce in a particular case is minimal.”). Put otherwise, when

Congress may permissibly regulate a class of activities, the “courts have no power ‘to

excise, as trivial, individual instances’ of the class.” Id. (quoting Perez v. United States,

402 U.S. 146, 154 (1971).

Similarly, this Court has held that, in as-applied Commerce Clause challenges,

“the relevant question . . . is not whether one particular offense has an impact on

20
interstate commerce, but whether the class of acts proscribed has such an impact.”

United States v. Gibert, 677 F.3d 613, 627 (4th Cir. 2012); see also Terry, 257 F.3d at

370 (affirming an arson conviction and holding that “[i]t is not dispositive that the

commercial activity of providing daycare services took place entirely within the city of

Raleigh”); Aman, 480 F. App’x at 225 (affirming an arson conviction even though the

arson did not individually have a substantial effect on interstate commerce).

In essence, when a defendant interferes with economic or commercial activity—be

it by robbing an individual or entity engaged in commercial activity, burning down a

building used in commerce, battering an employee engaged in commercial activity, or

some other manner—whether the defendant’s conduct substantially affects interstate

commerce is not measured against the scope of the commercial enterprise subject to

interference. That is because Congress has no less authority to criminalize interference

with economic or commercial activity at large enterprises like Amazon—which are more

easily able to absorb productivity losses—than it does at sole proprietorships or “mom

and pop” establishments with only a handful of employees—for which a 45-minute halt

in activity could constitute a substantial loss. Indeed, Taylor establishes that Congress

has the power to proscribe violent conduct even “when any actual or threatened effect on

commerce in a particular case is minimal,” 136 S. Ct. at 2081, regardless of whether the

actual or threatened effect is to the business of a multi-national corporation or a local

enterprise.

Accordingly, that Defendant’s assault of Tibbs may have “minimal[ly]” impacted

Amazon’s business—and interstate commerce generally—does not render Defendant’s

21
prosecution unconstitutional. Id. Rather, it is sufficient that Congress could reasonably

determine that the aggregate effect of assaults on individuals engaged in ongoing

economic or commercial activity—like Defendant’s assault of Tibbs while he was

preparing packages for interstate sale and shipment—amounts to a “substantial effect” on

interstate commerce. 6 Just as Taylor concluded that the aggregate effect of marijuana

robbery was sufficient to satisfy the Commerce Clause, even though the defendant stole

only a single “marijuana cigarette,” id. at 2078, so too the aggregate effect of assaulting

workers preparing packages for interstate shipment satisfies the Commerce Clause, even

though the immediate warehouse area where Tibbs was assaulted was closed for at most

45 minutes and Tibbs missed only a single shift.

C.

Nevertheless, Defendant argues that his prosecution violates the Commerce Clause

for four reasons: (1) his conduct did not “substantially affect” interstate commerce, as the

Supreme Court construed that requirement in Lopez and Morrison; (2) robbery and arson,

unlike bias-motivated assaults, are “inherently economic crimes”; (3) unlike robbery and

arson, bias-motivated assaults do not “further an economic interest”; and (4) robbery and

6
We also note that in “assessing the scope of Congress’ Commerce Clause
authority” under the Hate Crimes Act, we “need not determine whether [the regulated
conduct], taken in the aggregate, substantially affect[s] interstate commerce in fact, but
only whether a ‘rational basis’ exists for so concluding.” Raich, 545 U.S. at 22. We
readily determine that a rational basis exists to conclude that bias-motivated assaults that
interfere with ongoing commercial activity have a substantial effect on interstate
commerce in the aggregate.

22
arson are crimes against “property,” not crimes against persons. Appellee’s Br. at 18–21.

As explained below, none of these arguments is persuasive.

First, Defendant argues—and the district court held—that his assault of Tibbs does

not fall under Congress’s authority to regulate activities that “substantially affect”

interstate commerce, as the Supreme Court construed that requirement in Lopez and

Morrison. We disagree.

In Lopez, the Supreme Court considered a challenge to the Gun-Free School Zones

Act, in which Congress established a federal criminal offense prohibiting possession of a

firearm near a school. 514 U.S. at 551. There, the defendant, a twelfth-grade student,

was charged with carrying a concealed .38-caliber handgun on school property. Id. The

Supreme Court held that the statute exceeded Congress’s authority under the Commerce

Clause because it had “nothing to do with ‘commerce’ or any sort of economic enterprise,

however broadly one might define those terms.” Id. at 561. The Court further

emphasized that the statute lacked an interstate-commerce jurisdictional element and

explained that it could not be “sustained under . . . cases upholding regulations of

activities that arise out of or are connected with a commercial transaction, which viewed

in the aggregate, substantially affects interstate commerce.” Id. Finally, the Court

rejected the Government’s argument that the statute was constitutional because

possession of firearms in school zones may lead to violent crimes which have substantial

societal and economic costs. Id. at 563–64. Accepting such a “costs of crime” argument

would permit Congress to “regulate not only all violent crime, but all activities that might

lead to violent crime, regardless of how tenuously they relate to interstate commerce,” the

23
Court said, which would unconstitutionally “‘obliterate the distinction between what is

national and what is local.’” Id. at 564, 567 (quoting A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 554 (1935) (Cardozo, J., concurring)).

Morrison involved a challenge to a provision in the Violence Against Women Act,

which established a federal civil remedy for the victims of gender-motivated violence.

529 U.S. at 601–02. The Supreme Court held that the statute exceeded Congress’s power

under the Commerce Clause, emphasizing that “[g]ender-motivated crimes of violence

are not, in any sense of the phrase, economic activity.” Id. at 613. “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,” the

Court explained. Id. at 618. The Court also emphasized that the Violence Against

Women Act, like the Gun-Free School Zones Act, did not have an interstate-commerce

jurisdictional element. Id. at 613. Finally, the Court rejected “the argument that

Congress may regulate noneconomic, violent criminal conduct based solely on that

conduct’s aggregate effect on interstate commerce.” Id. at 617; see also id. at 618

(“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.”).

For several reasons, Lopez and Morrison are readily distinguishable from

Defendant’s prosecution under the Hate Crimes Act. To begin, whereas the Lopez and

Morrison Courts found it significant that the statutes at issue had no interstate-commerce

jurisdictional element, the provision in the Hate Crimes Act under which the jury

24
convicted Defendant expressly includes such an element. That element requires that, to

convict a defendant under the Hate Crimes Act, both a court and a fact-finder must

determine, in each case, that the defendant’s conduct “interfere[d] with commercial or

other economic activity in which the victim is engaged at the time of the conduct.” 18

U.S.C. § 249(a)(2)(B)(iv)(I). Notably, Defendant has not identified any case—nor have

we found any such case—in which a federal criminal statute including an interstate

commerce jurisdictional element has been held to exceed Congress’s authority under the

Commerce Clause. Cf. United States v. Coleman, 675 F.3d 615, 620 (6th Cir. 2012)

(“[W]e regard the presence of such a jurisdictional element [that ensures case-by-case

analysis that the violation in question affects interstate commerce] as the touchstone of

valid congressional use of its Commerce Clause powers to regulate non-commercial

activity.”).

Importantly, the Hate Crime Act’s interstate commerce element precludes the

Government from prosecuting all bias-motivated crimes, “regardless of how tenuously

they relate to interstate commerce” based on the theory that such crimes, in the aggregate,

may have substantial downstream effects on interstate commerce—in other words, the

“costs of crime” approach rejected in Lopez, 514 U.S. at 564. Rather, the Hate Crimes

Act authorizes prosecution of only those bias-motivated violent crimes that interfere with

or otherwise affect ongoing economic or commercial activity, as the jury found

Defendant’s assault of Tibbs did here. Put differently, the Hate Crimes Act’s interstate

commerce element ensures that the statute regulates only economic, violent criminal

25
conduct, not the type of “noneconomic, violent criminal conduct” at issue in Morrison,

529 U.S at 617 (emphasis added).

The specific conduct at issue in Lopez and Morrison illustrates the meaningful

constraint imposed by the Hate Crimes Act’s interstate commerce element. The conduct

giving rise to the prosecutions at issue in Lopez and Morrison—possessing a handgun on

a school campus and domestic violence—did not, under the facts of those cases, interfere

with ongoing interstate commerce or economic activity. By contrast, a jury found that

Defendant’s assault of Tibbs interfered with ongoing commercial activity by preventing

Tibbs from continuing to prepare packages for interstate sale and shipment. The Lopez

Court itself recognized this critical distinction, stating that “Congress is empowered to

regulate and protect . . . persons or things in interstate commerce, even though the threat

may come only from intrastate activities.” 514 U.S. at 558 (emphasis added).

Additionally, the slippery-slope concern animating the Lopez Court’s holding—

that allowing Congress to regulate the possession of guns in school zones would give

Congress unfettered authority to regulate wholly intrastate conduct traditionally subject to

regulation by the States—is not present here. Section 249(a)(2)(B)(iv)(I) of the Hate

Crimes Act authorizes federal prosecution of a hate crime only when the crime “interferes

with commercial or other economic activity in which the victim is engaged at the time of

the conduct,” which does not give the federal Government general license to punish

crimes of violence motivated by discriminatory animus.

And contrary to the district court’s reasoning, our conclusion that the Government

lawfully prosecuted Defendant does not mean “Congress can regulate all workplace

26
conduct” or that it can intrude into private homes. J.A. 39. Rather, we hold that

Defendant’s prosecution complied with the Commerce Clause because his assault of

Tibbs interfered with ongoing commercial activity. That holding in no way usurps the

States’ authority to regulate violent crimes—including hate crimes—unrelated to ongoing

interstate commerce.

For example, if Defendant had assaulted Tibbs at a private residence while Tibbs

was not engaged in activity related to interstate commerce, then Defendant would not be

subject to prosecution under the Hate Crimes Act. Therefore, the Hate Crimes Act’s

jurisdictional element ensures, “through case-by-case inquiry,” that federal charges will

arise only where a defendant’s conduct has “the requisite nexus with interstate

commerce.” Lopez, 514 U.S. at 561–62. Because conduct criminalized under the Hate

Crimes Act necessarily “relates to an activity that has something to do with commerce or

any sort of economic enterprise,” Gibert, 677 F.3d at 624 (internal quotation marks

omitted), the statute does not open the door to pervasive federal regulation of violent hate

crimes.

Second, Defendant argues—and the district court agreed—that the Supreme

Court’s Hobbs Act and arson precedent is inapplicable because bias-motivated assaults,

unlike robbery and arson, are not “inherently economic crimes.” Appellee’s Br. at 21.

Defendant is correct that there is nothing “inherently” economic about bias-motivated

assaults. But Defendant’s argument rests on the incorrect premise that the actus reus

proscribed by a federal criminal statute must be “inherently economic” in order for the

statute to comply with the Commerce Clause. Contrary to Defendant’s reasoning,

27
whether the application of a federal statute proscribing violent crime complies with the

Commerce Clause does not turn on whether the act proscribed by the statute is

“economic” or “non-economic.” The Hobbs Act and the federal arson statute comply

with the Commerce Clause when they proscribe conduct interfering with or affecting

interstate commerce not because robbery and arson are “inherently economic,” but rather

because those statutes contain jurisdictional elements that limit the statutes’ reach to

those robberies and arsons that interfere with or affect interstate commerce. See United

States v. Carr, 652 F.3d 811, 813 (7th Cir. 2011) (“Although robbery itself is not

necessarily economic activity, [the defendant]’s crime targeted a business engaged in

interstate commerce. And unlike the statutes at issue in Lopez and Morrison, the Hobbs

Act contains a jurisdictional element which requires the Government to prove the

interstate nexus.” (emphasis added)); United States v. Wang, 222 F.3d 234, 238 (6th Cir.

2000) (reversing a Hobbs Act robbery conviction where the “criminal act [was] directed

at a private citizen” and the “connection to interstate commerce [was] much more

attenuated”).

Recall that in the case of the arson statute, for example, the Supreme Court in

Jones construed the statute to apply only to those properties “currently used in commerce

or in an activity affecting commerce”—and not to private residences not used for

commercial activity. 529 U.S. at 859; see also United States v. Patton, 451 F.3d 615, 633

(10th Cir. 2006) (“In Jones, therefore, the jurisdictional hook served the purpose of

limiting the statute to arson cases where there really was a substantial and non-attenuated

effect on interstate commerce.”). If arson is “inherently economic” and therefore subject

28
to congressional regulation—as Defendant’s argument presupposes—then any arson

would fall under Congress’s Commerce Clause authority. But that is not the case. See,

e.g., United States v. Lamont, 330 F.3d 1249, 1257 (9th Cir. 2003) (holding that the

federal arson statute cannot ordinarily be applied to a church, “at least in the absence of

some unusual connection to interstate commerce”).

Defendant’s economic/non-economic actus reus distinction also runs contrary to

decisions by the Supreme Court, this Court, and other circuits regarding the

constitutionality of federal laws proscribing the possession of firearms in certain

locations or by certain classes of persons. 18 U.S.C. § 922 (q)(2)(A). Emphasizing that

the “possession” of a firearm is “in no sense an economic activity that might, through

repetition elsewhere, substantially affect any sort of interstate commerce,” the Lopez

court struck down the first version of the Gun-Free School Zones statute. 514 U.S. at 567

(emphasis added).

Following Lopez, Congress reenacted the statute, this time with an interstate

commerce element requiring that the Government prove the firearm at issue “has moved

in or . . . otherwise affects interstate or foreign commerce.” 18 U.S.C. § 922 (q)(2)(A).

Notably, numerous courts have concluded that Congress’s addition of the interstate

commerce element remedied the Commerce Clause problem identified in the earlier

version of the statute. See United States v. Dorsey, 418 F.3d 1038, 1045 (9th Cir. 2005)

(“The Lopez decision did not alter this rule that a jurisdictional element will bring a

federal criminal statute within Congress’s power under the Commerce Clause.”),

abrogated on other grounds by Arizona v. Gant, 556 U.S. 332 (2009); United States v.

29
Danks, 221 F.3d 1037, 1038 (8th Cir. 1999) (rejecting the argument that the “mere

insertion of a ‘commerce nexus’ does not cure the original Act’s defect”).

Likewise, this Court—along with every other circuit to have considered the

issue—has upheld other federal statutes criminalizing firearm possession when the

firearm in question moved in interstate commerce. See, e.g., United States v. Gallimore,

247 F.3d 134, 138 (4th Cir. 2001); see also United States v. Nathan, 202 F.3d 230, 234

(4th Cir. 2000) (explaining that the jurisdictional element “requires a case-by-case

inquiry into the connection with commerce”). Accordingly, notwithstanding that the

actus reus in these firearms statutes—possession—is “in no sense an economic activity,”

Lopez, 514 U.S. at 567, this Court and other courts have concluded the interstate

commerce element rendered the statute constitutional. What renders the Hobbs Act, the

arson statute, and the firearm possession statutes—and, therefore, Defendant’s

prosecution of the Hate Crimes Act—constitutional is not the economic nature of the act

proscribed, but rather Congress’s express requirement that the act at issue, violent or

otherwise, interfered with or affected interstate commerce.

The distinction Defendant would have us draw between “inherently economic”

and non-economic acts also would lead to any number of anomalous results. For

example, under Defendant’s reasoning, the Commerce Clause would not permit federal

authorities to prosecute an individual who—like Defendant—attacked a coworker

engaged in the packing and shipment of a product across state lines. However, if that

shipped product was a firearm and the recipient sat on a park bench within 1,000 feet of a

public school while in possession of that firearm—be it the following day or seventeen

30
years later—the recipient’s conduct would have a sufficient effect on interstate commerce

to support the recipient’s conviction under the Commerce Clause. See United States v.

Crump, 120 F.3d 462, 466 n.2 (4th Cir. 1997); see also United States v. Roseby, 454 Fed.

App’x 186, 188 (4th Cir. 2011). It can hardly be gainsaid that the possession of a firearm

outside a school bears any more obvious a relationship to interstate commerce than

interfering with the actual shipment of the same firearm across state lines.

Third, Defendant argues that Defendant’s prosecution under the Hate Crimes Act

differs from the Supreme Court’s Hobbs Act and arson cases because Defendant did not

assault Tibbs “in order to further an economic interest.” Appellee Br. at 19. But the

Supreme Court has recognized that the economic or non-economic nature of proscribed

conduct turns on whether the conduct can be shown to interfere with or affect economic

activity subject to congressional regulation—and therefore interstate commerce—and not

whether the perpetrator of the conduct was motivated by economic interest. See Jones,

529 U.S. at 854 (requiring courts to consider the commercial function, if any, of

destroyed property to determine whether its destruction may be prosecuted under the

federal arson statute). That is why this Court consistently has rejected the argument that

a defendant must intend for his criminal conduct to affect interstate commerce for such

conduct to be susceptible to congressional regulation under the Commerce Clause. See,

e.g., Williams, 342 F.3d at 354 (holding that the Hobbs Act “does not require proof that a

defendant intended to affect commerce or that the effect on commerce was certain; it is

enough that such an effect was the natural, probable consequence of the defendant’s

actions”).

31
 For example, this Court and other circuits have concluded that federal arson

statutes may be applied against defendants who set fire to property used in interstate

commerce, notwithstanding that such defendants were motivated by purely personal

reasons, and not any economic interest. See, e.g., United States v. Ballinger, 395 F.3d

1218, 1223 (11th Cir. 2005) (en banc) (upholding the conviction of a defendant, a self-

proclaimed practicing “Luciferian,” who set fire to numerous churches because of his

“hostility toward organized Christianity”); United States v. Cristobal, 293 F.3d 134, 137,

144–46 (4th Cir. 2002) (upholding a federal arson conviction where the defendant

targeted victims based on suspicions regarding his wife’s philandering and planted car

bombs on vehicles driven by victims and owned by the victims’ employers); United

States v. Grassie, 237 F.3d 1199, 1205, 1211–12 (10th Cir. 2001) (upholding the

conviction of the defendant who set fire to a truck used to haul fruits of annual harvest,

even though the defendant set fire to the truck because the victim’s mother had broken

off a relationship with the defendant). Accordingly, that Defendant’s assault of Tibbs

was motivated by a non-economic interest did not render Defendant’s prosecution

unconstitutional because “the natural, probable consequence of the defendant’s

actions”—assaulting an individual engaged in packaging products for interstate

shipment—interfered with ongoing commercial activity. Williams, 342 F.3d at 354.

Fourth, Defendant argues that his prosecution violated the Constitution because

the Commerce Clause permits Congress to regulate only violent crimes against property,

not crimes against persons. Under Defendant’s reasoning, therefore, Congress could hold

criminally accountable individuals who damage real property owned by a

32
business, see Terry, 257 F.3d at 369–71, but not individuals who assault an employee

actively working for that business. Yet there is no constitutional or logical basis to

conclude that the Commerce Clause authorizes Congress to regulate interference with

one factor of production (capital, in the form of real property), but not another (labor).

On the contrary, the Supreme Court’s longstanding recognition that Congress may

pervasively regulate the labor market and the terms and conditions of employment

indicates that Congress may proscribe conduct that interferes with labor as well as

capital. See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30–32 (1937)

(rejecting Commerce Clause challenge to the National Labor Relations Act).

The fallacy underlying this distinction is even more evident in light of the rising

tide of automation throughout much of the American economy. See generally Cynthia

Estlund, What Should We Do After Work? Automation and Employment Law, 128 Yale

L.J. 254, 258 (2018) (noting that “[r]obotic and digital production of goods and services,

coupled with advances in AI and machine learning, is poised to take over both routine or

repetitive tasks and some more advanced tasks”). Under the rule proposed by Defendant,

Congress would have less authority to protect flesh-and-blood workers employed in

interstate commerce than machines performing the very same tasks as those workers. We

see no constitutional basis for embracing such a rule, and Defendant has pointed to none.

In sum, it is irrelevant that a bias-motivated “punch in the face” is non-economic,

standing alone. Appellee’s Br. at 22. It is not the violent act itself, or the motivation

behind that act, that triggers Congress’s regulatory authority under the Commerce Clause,

but the effect of that act on interstate commerce that renders it susceptible to federal

33
regulation. Although “a jurisdictional hook is not . . . a talisman that wards off [all]

constitutional challenges,” the Hate Crimes Act’s interstate commerce element ensures

that each prosecution under the Hate Crimes Act will bear the necessary relationship to

commerce that renders the crime within Congress’s purview. Patton, 451 F.3d at 632.

III.

In the alternative, Defendant argues that the district court reversibly erred in

refusing to give the jury Defendant’s proposed instructions regarding the Hate Crime

Act’s interstate commerce element. 7 We review a district court’s decision not to grant a

particular jury instruction for abuse of discretion and review de novo whether a jury

instruction incorrectly states the law. United States v. Miltier, 882 F.3d 81, 89 (4th Cir.

2018). “A refusal to grant a requested instruction is only reversible error if the

instruction (1) was correct; (2) was not substantially covered by the court’s charge to the

jury; and (3) dealt with some point in the trial so important, that failure to give the

requested instruction seriously impaired the defendant’s ability to conduct his defense.”

United States v. Patterson, 150 F.3d 382, 388 (4th Cir. 1998) (citations omitted).

Defendant asked the district court to instruct the jury that “in connection with the

offense, the Defendant interfered with the commercial or other economic activity in

7
The Government argues that Defendant’s objection to the district court’s charge
is not properly before us because Defendant did not cross-appeal the judgment. See JH
ex rel. JD v. Henrico Cty. Sch. Bd., 326 F.3d 560, 567 n.5 (4th Cir. 2003). As the
Government acknowledges, however, the cross-appeal rule is not jurisdictional, Tug
Raven v. Trexler, 419 F.2d 536, 548 (4th Cir. 1969), and we may reach Defendant’s
objections in our discretion. Because Defendant’s objection rests entirely on the merits
of his constitutional challenge, judicial economy favors the exercise of our discretion
here.

34
which [Tibbs] was engaged at the time of the conduct; and that the Defendant’s conduct

substantially affected interstate or foreign commerce.” Appellee’s Br. at 40; J.A. 138.

According to Defendant’s proposed instructions, for Defendant’s conduct to have

“substantially affected interstate . . . commerce,” “the Government must prove that the

violence caused a relatively significant disruption to commerce.” Appellee’s Br. at 40;

J.A. 140. Rather than using Defendant’s proposed instructions, the district court

instructed the jury that, to convict, it had to find that Defendant’s conduct “interfered

with the commercial or economic activity in which Tibbs was engaged at the time of the

conduct.” 8 J.A. 541.

The district court did not reversibly err in refusing to give Defendant’s proposed

instructions as to the interstate commerce element. Defendant’s requested instruction

requiring the jury to find that his conduct “caused a relatively significant disruption to

commerce” constituted an incorrect statement of law. As explained previously, the

Supreme Court and this Court repeatedly have held that Congress may regulate

interference with commerce, even if the effect of the interference on interstate commerce

in an individual case is “minimal.” See supra Part II.A (quoting Taylor, 136 S. Ct. at

2081); see also, e.g., Terry, 257 F.3d at 367 (rejecting Commerce Clause challenge to

8
18 U.S.C. § 249 (a)(2)(B)(iv) requires that crimes prohibited in the Act (I)
“interfere[] with commercial or other economic activity in which the victim is engaged at
the time of the conduct; or (II) otherwise affect[] interstate or foreign commerce.” Id.
(emphasis added). Defendant was convicted under (I) but argues on appeal that the
statute requires that both subclauses have a substantial effect on interstate commerce.
But this position transforms the “or” separating the subclauses into an “and.” We decline
to distort the plain meaning of the statute.

35
federal arson statute as-applied to burning of a church even though the commercial

activity at church—day care services—took place entirely within North Carolina).

Because Defendant’s proposed instruction was incorrect, the district court did not

reversibly err in refusing to provide it. See Miltier, 882 F.3d at 89.

Rather than providing Defendant’s errant instruction, the district court properly

instructed the jury regarding the Hate Crimes Act’s interstate commerce element in

accordance with that provision’s plain language. Accordingly, we reject Defendant’s

challenge to the district court’s jury instructions.

IV.

In sum, the Hate Crimes Act as applied required the Government to prove beyond

a reasonable doubt that Defendant’s assault on Tibbs “interfere[d] with commercial or

other economic activity in which the victim [was] engaged at the time of the conduct.”

18 U.S.C. § 249(a)(2)(B)(iv)(I). The evidence introduced by the Government at trial

provided the jury with a more-than-adequate basis to make such a finding.

In establishing that Congress has the authority to proscribe Defendant’s assault of

Tibbs, we simply follow the decisions of the Supreme Court and this Court regarding the

constitutionality of prosecutions under the Hobbs Act and the federal arson statute. And

there is no good reason to carve out a special exception to allow criminals who commit

sexual orientation hate crimes under similar circumstances to avoid these well-established

precedents.

Accordingly, we reverse the district court’s judgment of acquittal and remand for

reinstatement of the jury’s guilty verdict.

36
 REVERSED AND REMANDED

37
AGEE, Circuit Judge, dissenting:

Like the majority, I believe that the proper outcome in this case naturally flows

from the Supreme Court’s Commerce Clause precedent and the terms of 18 U.S.C.

§ 249(a)(2)(B)(iv)(I). Unlike the majority, I conclude that Congress’ power under the

Commerce Clause does not permit Hill’s prosecution under that statute. This is so for two

principal reasons. First, unlike the other provisions of § 249(a)(2)(B)—and, indeed,

unlike “jurisdictional elements” in other statutes—§ 249(a)(2)(B)(iv)(I) does not limit the

class of activities being regulated to acts that fall under Congress’ Commerce Clause

power. Second, the root activity § 249(a)(2) regulated in this case—a bias-motivated

punch—is not an inherently economic activity and therefore not within the scope of

Congress’ Commerce Clause authority. For the reasons expounded below, I would affirm

the district court’s decision to vacate Hill’s conviction and respectfully dissent.

I.

A.

The district court held that § 249(a)(2) was unconstitutional as applied to Hill in

this case. I agree. And while my analysis of § 249(a)(2)(B)(iv)(I) would likely implicate

other prosecutions brought under this particular provision, it is sufficient in this case to

determine that the statute operated in a way that was unconstitutional as applied to Hill.

See Seling v. Young, 531 U.S. 250, 271 (2001) (“[A]n ‘as-applied’ challenge is a claim

that a statute, by its own terms, infringes constitutional freedoms in the circumstances of

a particular case.” (alterations, emphasis, and internal quotation marks omitted)).

38
 B.

“[T]he Constitution creates a Federal Government of enumerated powers,”

reserving, among other functions, general police powers to the sovereign States. United

States v. Lopez, 514 U.S. 549, 552 (1995). An enumerated power the Constitution

specifically delegates to Congress is the ability to “regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes.” U.S. Const. Art. I,

§ 8, cl. 3. This case implicates Congress’ power to regulate commerce “among the

several States.” Id. The Supreme Court has recognized that this power to regulate

interstate commerce consists of “three broad categories”: first, “the use of the channels of

interstate commerce”; second, “the instrumentalities of interstate commerce, or persons

or things in interstate commerce”; and third, “those activities having a substantial relation

to interstate commerce, i.e., those activities that substantially affect interstate commerce.”

Lopez, 514 U.S. at 558–59 (citation omitted). This case involves only the third category:

“activities that substantially affect interstate commerce.” Id. at 559.

When “a general regulatory statute bears a substantial relation to commerce, the de

minimis character of individual instances arising under that statute” does not deprive

Congress of the ability to regulate that activity. Gonzales v. Raich, 545 U.S. 1, 17 (2005)

(quoting Lopez, 514 U.S. at 558). It follows from this principle that legislation regulating

activities substantially affecting interstate commerce is deemed a proper exercise of

Congress’ Commerce Clause power even when the statute’s scope regulates purely

intrastate economic activity, Lopez, 514 U.S. at 559–60, but only so long as the regulated

activities “are part of an economic ‘class of activities’ that have a substantial effect on

39
interstate commerce,” Raich, 545 U.S. at 17; Wickard v. Filburn, 317 U.S. 111, 125

(1942) (“[E]ven if [an] activity be local and though it may not be regarded as commerce,

it may still, whatever its nature, be reached by Congress if it exerts a substantial

economic effect on interstate commerce . . . .”). The Supreme Court has permitted such

aggregation of individual instances to create the requisite substantial effect on interstate

commerce “only where [the regulated] activity is economic in nature.” Taylor v. United

States, 136 S. Ct. 2074, 2079–80 (2016) (quoting United States v. Morrison, 529 U.S.

598, 613 (2000)).

In determining whether a statute substantially affects interstate commerce, the

Supreme Court has looked to four factors: (1) Is the regulated activity inherently

economic?; (2) Are there legislative findings that reveal why something that does not

appear to substantially affect interstate commerce actually does so?; (3) Does the statute

contain a jurisdictional element that limits the statute’s reach to acts that “have an explicit

connection with or effect on interstate commerce”?; and (4) Is the link between the

regulated activity and interstate commerce attenuated? Lopez, 514 U.S. at 559–63; see

Morrison, 529 U.S. at 610–17.

II.

A.

A distinguishing factor between this statute and those at issue in Lopez and

Morrison is that § 249(a)(2)(B) includes a so-called “jurisdictional element” purporting

to require a connection between the regulated activity—here, bias-motivated assaults—

40
and Congress’ Commerce Clause power. In Lopez and Morrison, the Supreme Court held

that the presence of a jurisdictional element “would ensure, through case-by-case inquiry,

that the [activity being regulated] affects interstate commerce.” Lopez, 514 U.S. at 561;

see also Morrison, 529 U.S. at 611–13 (observing that the Violence Against Women Act

“contains no jurisdictional element establishing that the federal cause of action is in

pursuance of Congress’ power to regulate interstate commerce”). To effectuate its

intended purpose, a jurisdictional element must “limit [the statute’s] reach to a discrete

set of [activities being regulated] that additionally have an explicit connection with or

effect on interstate commerce.” Lopez, 514 U.S. at 562. Put another way, when a

jurisdictional element is the sole basis for concluding that a particular statute is

constitutional, it must independently accomplish what nothing else in the statute does:

compel the Court to conclude that the activity being regulated falls within Congress’

Commerce Clause power.

The Supreme Court ably described this relationship between the substantive and

jurisdictional elements of an offense in Torres v. Lynch, 136 S. Ct. 1619 (2016):

In our federal system, Congress cannot punish felonies generally; it may
enact only those criminal laws that are connected to one of its
constitutionally enumerated powers, such as the authority to regulate
interstate commerce. As a result, most federal offenses include, in addition
to substantive elements, a jurisdictional one . . . . The substantive elements
primarily define the behavior that the statute calls a violation of federal
law . . . . The jurisdictional element, by contrast, ties the substantive
offense . . . to one of Congress’s constitutional powers . . ., thus spelling out
the warrant for Congress to legislate.

Id. at 1624 (alterations, citations, and internal quotation marks omitted).

41
 Likewise, § 249(a)(2) contains both jurisdictional and substantive elements,

requiring the Government to prove both that a person “willfully cause[d] bodily injury to

any person . . . because of the actual or perceived religion, national origin, gender, sexual

orientation, gender identity, or disability of any person,” § 249(a)(2)(A), and one of the

following:

(i) the conduct described . . . occurs during the course of, or as the result of,
the travel of the defendant or the victim—
(I) across a State line or national border; or
(II) using a channel, facility, or instrumentality of interstate or foreign
commerce;
(ii) the defendant uses a channel, facility, or instrumentality of interstate or
foreign commerce in connection with the conduct described . . .;
(iii) in connection with the conduct described . . ., the defendant employs a
firearm, dangerous weapon, explosive or incendiary device, or other
weapon that has traveled in interstate or foreign commerce; or
(iv) the conduct described . . .—
(I) interferes with commercial or other economic activity in which the
victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.

§ 249(a)(2)(B) (emphases added). For purposes of Hill’s prosecution, the Government

charged that Hill

willfully cause[d] bodily injury to C.T. by assaulting [him], including by
punching C.T., because of C.T.’s actual and perceived sexual
orientation . . .; and that, in connection with the offense, [Hill] interfered
with commercial and other economic activity in which C.T. was engaged at
the time of the conduct, and which offense otherwise affected interstate and
foreign commerce.

J.A. 19; Cf. J.A. 21. For reasons known only to the Government, it struck the language

charging Hill under § 249(a)(2)(B)(iv)(II), that Hill’s offense “otherwise affected

interstate . . . commerce,” from the indictment. J.A. 21. Instead, the Government relied

42
solely on § 249(a)(2)(B)(iv)(I), the only provision in the statute with no nexus to

interstate or foreign commerce.

As the above-emphasized language reflects, the text of § 249(a)(2)(B)(iv)(I)

substantially differs from all of the other ways the Government can prove this element of

the offense. The other subsections directly refer to “interstate” travel or commerce;

further, they track the broad categories of activities the Supreme Court has identified as

falling within Congress’ power to regulate under the Commerce Clause. Cf. Lopez, 514

U.S. at 558–59 (identifying (1) “the use of the channels of interstate commerce”; (2) “the

instrumentalities of interstate commerce, or persons or things in interstate commerce”;

and (3) “activities that substantially affect interstate commerce”). Thus, the other

subsections of the statute expressly incorporate within their text Congress’ constitutional

authority under the Commerce Clause.

In contrast, § 249(a)(2)(B)(iv)(I) is a distinct outlier without an interstate or

foreign commerce statutory nexus. Nor is the unrestricted phrase “commercial or other

economic activity” one of the categories the Supreme Court has identified as an area

Congress can regulate under its Commerce Clause power. By § 249(a)(2)(B)(iv)(I)’s

plain terms, it contains no jurisdictional nexus to Congress’ authority under the

Commerce Clause and thus fails under Lopez to be a “jurisdictional element” that has “an

explicit connection with or effect on interstate commerce.” Id. at 562. This textual

difference is meaningful: as set out in the analysis that follows, § 249(a)(2)(B)(iv)(I)

encompasses conduct that falls outside Congress’ Commerce Clause authority.

43
 In this regard, § 249(a)(2)(B)(iv)(I)’s text is unusual, if not unique, not just within

§ 249(a)(2)(B), but also within statutory language the Supreme Court and this Court have

analyzed since Lopez and Morrison. 9 The plain text of those jurisdictional elements

9
Given the unusual language used here and that this case is the first to address this
provision of § 249(a)(2), it is of no consequence that no other cases have concluded that a
federal statute with such a non-distinct jurisdictional element has exceeded Congress’
Commerce Clause power. See supra [23–24].
What’s more, regardless of how particular cases have turned out, circuit courts
have uniformly recognized that the mere presence of a jurisdictional element is not
dispositive to the Commerce Clause inquiry. E.g., United States v. Durham, 902 F.3d
1180, 1212 (10th Cir. 2018) (“Although the presence of a jurisdictional element is neither
necessary nor sufficient, it is certainly helpful in determining whether the prohibited
activity has a substantial effect on [interstate] commerce.” (internal quotation marks
omitted)); United States v. Alderman, 565 F.3d 641, 648 (9th Cir. 2009) (acknowledging
that “a jurisdictional hook is not always a talisman that wards off constitutional
challenges” and concluding that the court must look to whether “the jurisdictional hook
together with additional factors, such as congressional findings” demonstrate a
substantial effect on interstate commerce (emphasis added) (internal quotation marks
omitted)), cert. denied, 562 U.S. 163 (2011); United States v. Morales-de Jesus, 372 F.3d
6, 13 (1st Cir. 2004) (“Although [a statute’s] jurisdictional element ensures that any
prosecuted conduct has a minimal nexus with interstate commerce, that minimal nexus
may not meet the substantial effect requirement of Morrison.”); Norton v. Ashcroft, 298
F.3d 547, 557 (6th Cir. 2002) (“[A] jurisdictional element may establish that the
enactment is in pursuance of Congress’ regulation of interstate commerce. By the same
measure, a jurisdictional element does not guarantee that a particular enactment will pass
muster.” (citations and internal quotation marks omitted)); United States v. Rodia, 194
F.3d 465, 472 (3d Cir. 1999) (“A hard and fast rule that the presence of a jurisdictional
element automatically ensures the constitutionality of a statute ignores the fact that the
connection between the activity regulated and the jurisdictional hook may be so
attenuated as to fail to guarantee that the activity regulated has a substantial effect on
interstate commerce.”); United States v. Wilson, 73 F.3d 675, 685 (7th Cir. 1995) (“In
discussing the lack of a jurisdictional element in Lopez, the [Supreme] Court simply did
not state or imply that all criminal statutes must have such an element, or that all statutes
with such an element would be constitutional . . . .”). And even the outlier circuit court
that indicated the presence of a jurisdictional element is dispositive was referring to a
provision in 18 U.S.C. § 922(g) that the court concluded performed its necessary role of
ensuring that all prosecutions under the provision fell within Congress’ Commerce
Clause power. See United States v. Cunningham, 161 F.3d 1343, 1346 (11th Cir. 1998)
(Continued)
44
differs fundamentally from the provision at issue in this case because they—like the other

subsections of § 249(a)(2)(B)—use language directly implicating Congress’ authority to

regulate interstate commerce. For example, in Jones v. United States, 529 U.S. 848

(2000), and Russell v. United States, 471 U.S. 858 (1985), the Supreme Court considered

the scope of the federal arson statute, which prohibits damaging or destroying (or their

attempt), “by means of fire or an explosive, any . . . property used in interstate or foreign

commerce or in any activity affecting interstate or foreign commerce,” 18 U.S.C. § 844(i)

(emphases added). And in Taylor, 136 S. Ct. 2074, the Supreme Court reviewed the

Hobbs Act, in which Congress described the jurisdictional element as the requirement of

having “obstruct[ed], delay[ed], or affect[ed] commerce or the movement of any article

or commodity in commerce,” 18 U.S.C. § 1951(a). Significantly, though, Congress

defined “commerce” for purposes of the Hobbs Act to mean interstate commerce and “all

other commerce over which the United States has jurisdiction.” 18 U.S.C. § 1951(b)(3).

Read together, these two provisions in the Hobbs Act ensured that any finding as to the

jurisdictional element also satisfied Congress’ Commerce Clause power. Taylor, 136 S.

Ct. at 2079–80; see also Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56 (2003)

(analyzing the Federal Arbitration Act, which applies to “contract[s] evidencing a

transaction involving commerce,” 9 U.S.C. § 2 (emphasis added), and defines

(“[A] statute regulating noneconomic activity necessarily satisfies Lopez if it includes a
jurisdictional element which would ensure, through case-by-case inquiry, that the
defendant’s particular offense affects interstate commerce.” (emphasis in original)
(citations and internal quotation marks omitted)).

45
“commerce” to mean, in relevant part, “commerce among the several States,” 9 U.S.C.

§ 1 (emphasis added), as “words of art that ordinarily signal the broadest permissible

exercise of Congress’ Commerce Clause power”).

Similarly, this Circuit’s cases examining whether a jurisdictional element has

ensured that individual prosecutions fall within Congress’ Commerce Clause power—

regardless of any other factors that also did so—have all addressed statutory language

directly connecting the element to Congress’ constitutional authority. E.g., United States

v. Umana, 750 F.3d 320, 336 (4th Cir. 2014) (examining murder in aid of racketeering,

which requires a finding that an enterprise “engaged in, or the activities of which affect,

interstate or foreign commerce” (emphases added) (quoting 18 U.S.C. § 1959(b)(2)));

United States v. Gibert, 677 F.3d 613, 625–26 (4th Cir. 2012) (examining the federal

prohibition on animal fighting, which includes the requirement that the venture was “in

or affecting interstate or foreign commerce” (emphases added) (quoting 7 U.S.C.

§ 2156(g)(1)); United States v. Gould, 568 F.3d 459, 470–72 (4th Cir. 2009) (rejecting

Commerce Clause challenge to the Sex Offender Registration and Notification Act in part

because it contains the jurisdictional element of requiring that the defendant either have a

prior federal sex offense or “travel[ ] in interstate or foreign commerce,” 18 U.S.C.

§ 2250(a) (emphases added)); United States v. Buculei, 262 F.3d 322, 329 (4th Cir. 2001)

(observing that 18 U.S.C. § 2251 contained a jurisdictional element as contemplated in

Lopez because it required the jury to find that the defendant “knows or has reason to

know that [the child pornography at issue] will be transported in interstate or foreign

commerce or mailed” (emphasis added) (quoting 18 U.S.C. § 2251(a))); United States v.

46
Cobb, 144 F.3d 319, 321–22 (4th Cir. 1998) (holding, in relevant part, that the federal

carjacking offense was “a valid exercise of Congress’ authority under the Commerce

Clause” because an element of the offense was taking of motor vehicles that had been

“transported, shipped, or received in interstate or foreign commerce,” 18 U.S.C. § 2119

(emphases added)). 10

10
The federal offense of possession of a firearm or ammunition by a convicted
felon, 18 U.S.C. § 922(g), contains a jurisdictional element requiring proof that the
defendant “possess[ed] in or affecting commerce, any firearm or ammunition,” a phrase
unmodified by the word “interstate.” Id. Of course, most convictions for this offense rely
on a different jurisdictional element given that the Government can also show “that the
firearm traveled in interstate commerce at some point.” United States v. Hobbs, 136 F.3d
384, 390 (4th Cir. 1998). In any event, we have held that this commerce provision is a
valid exercise of Congress’ Commerce Clause authority because it “requir[es] the
Government to show that a nexus exists between the firearm and interstate commerce.”
United States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996) (emphasis added). Our analysis
relied in part on Scarborough v. United States, 431 U.S. 563 (1977), in which the
Supreme Court analyzed the predecessor statute to 18 U.S.C. § 922(g) and held that
Congress’ prohibition of firearm possession “in commerce or affecting commerce”
indicated its intent to regulate to the full scope of its power under the Commerce Clause.
Scarborough, 431 U.S. at 567, 575; see also United States v. Pierson, 139 F.3d 501, 503
(5th Cir. 1998) (“The words ‘affecting commerce’ are jurisdictional words of art,
typically signaling a congressional intent to exercise its Commerce Clause power
broadly, perhaps as far as the Constitution permits.” (alteration and internal quotation
marks omitted)). While some tension exists between Scarborough and the Supreme
Court’s decision in Lopez, the Supreme Court has not granted certiorari on a case that
would provide further guidance, see Alderman, 562 U.S. 1163 (mem.) (Thomas, J.,
dissenting from the denial of certiorari) (discussing this conflict), and circuit courts have
routinely relied on Scarborough as a basis for distinguishing Lopez in the context of
firearms-related offenses.
But Congress did not use these jurisdictional words of art in § 249(a)(2)(B)(iv)(I),
so this case does not require any reconciliation of Scarborough and Lopez. See, e.g.,
Jones, 529 U.S. at 854 (rejecting the Government’s argument that the federal arson
statute similarly indicated Congress’ intent “to invoke its full authority under the
Commerce Clause” because it “contains the qualifying words ‘used in’ a commerce-
affecting activity,” thus indicating that the crime is not arson of a building “whose
damage or destruction might affect interstate commerce,” but rather that the “destroyed
(Continued)
47
 No such corollary exists in § 249(a)(2)(B)(iv)(I): it does not require that the class

of the victim’s activities affected interstate commerce, nor does it limit the class of

regulated activities to commerce over which Congress has authority. Contrary to the

majority’s holding, Congress cannot regulate all “commercial or other economic activity”

in which a victim is engaged because Congress cannot generally regulate all commercial

and economic activities based on an unsubstantiated assumption that they will—at some

level of abstraction—affect interstate commerce. Lopez, 514 U.S. at 559 (holding that “in

order to be within Congress’ power to regulate it under the Commerce Clause,” an

activity must “substantially affect,” and not just “affect,” interstate commerce); see also

Raich, 545 U.S. at 22. Simply put, that the regulated activity interfered with someone

else’s “commercial” or “economic” activity is insufficient, else Lopez’s third category of

Commerce Clause power would have no meaning. Indeed, the Supreme Court has

expressly and repeatedly cautioned against conflating regular commerce and commerce

over which Congress has authority:

[T]he scope of the interstate commerce power must be considered in the
light of our dual system of government and may not be extended so as to
embrace effects upon interstate commerce so indirect and remote that to
embrace them, in view of our complex society, would effectually obliterate
the distinction between what is national and what is local and create a
completely centralized government.

Lopez, 514 U.S. at 557 (internal quotation marks omitted).

property must itself have been used in commerce or in an activity affecting commerce,”
requiring a two-step analysis, first “into the function of the building itself, and then [into]
whether that function affects interstate commerce”).

48
 Section 249(a)(2)(B)(iv)(I) does not ensure that prosecutions under it are

“sufficiently tied to interstate commerce [as opposed to regulating] a wider, and more

purely intrastate, body of violent crime.” Morrison, 529 U.S. at 613; see Lopez, 514 U.S.

at 562 (describing the requisite jurisdictional element as “limit[ing] [the statute’s] reach

to a discrete set of [regulated activities] that additionally have an explicit connection with

or effect on interstate commerce” (emphasis added)).

In sum, § 249(a)(2)(B)(iv)(I) does not require that the class of activities the victim

was engaged in substantially affected interstate commerce, nor does it limit the class of

activities regulated to commerce over which Congress has the authority to regulate. As

such, it does not do what it must do to “limit [the statute’s] reach to a discrete set of [acts]

that additionally have an explicit connection with or effect on interstate commerce.”

Lopez, 514 U.S. at 562. Therefore, § 249(a)(2)(B)(iv)(I) is not properly labeled a

“jurisdictional element” in the sense that Lopez and Morrison described as the means of

“ensur[ing], through case-by-case inquiry, that the [activity] in question affects interstate

commerce.” Id. at 561.

Applying this principle here, because § 249(a)(2)(B)(iv)(I) is not coextensive with

Congress’ Commerce Clause power, the jury’s finding that Hill’s conduct satisfied this

element of the offense did not demonstrate that Hill’s conduct is within the reach of

Congress’ constitutional authority. In short, Hill was not charged with (or later convicted

49
of) a crime with a stated interstate or foreign commerce jurisdictional basis. 11 The

practical consequence of this conclusion is that a prosecution under § 249(a)(2)(B)(iv)(I)

is a prosecution for an offense that does not have a constitutionally valid jurisdictional

element, just as the statutes at issue in Lopez and Morrison were similarly flawed.

B.

1.

To be a valid exercise of Congress’ Commerce Clause authority, the regulated

activity must have a substantial effect on interstate commerce. One way a statute can do

so is if the activity being regulated is economic in nature. Put another way, certain

functions can be clearly economic in nature so that a jurisdictional element is not

necessary to ensure that the activity being regulated falls within Congress’ Commerce

Clause power. United States v. Forrest, 429 F.3d 73, 77 n.1 (4th Cir. 2005) (“[A]n

effective jurisdictional element is certainly not required where . . . the statute directly

regulates economic activity.”).

When undertaking this review, Lopez and Morrison direct courts to look at the

root activity being regulated without regard for the jurisdictional element. The statutes at

issue in both of those cases lacked jurisdictional elements, and when discussing the

factors to be considered in determining whether the statutes were valid exercises of

Congress’ Commerce Clause power, the Supreme Court repeatedly cited the

11
As noted, the Government here affirmatively eliminated language representing
an interstate or foreign commerce jurisdictional nexus by striking the language of
§ 249(a)(2)(B)(iv)(II) from the indictment and charging Hill under § 249(a)(2)(B)(iv)(I)
alone.

50
noneconomic nature of the root activity regulated and then separately indicated that the

presence of a jurisdictional element might be a distinct ground for concluding a statute

regulating noneconomic activity could nonetheless be constitutional. E.g., Lopez, 514

U.S. at 561 (holding that knowing possession of a firearm in a school zone “by its terms

has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly

one might define those terms” and then “[s]econd” in its analysis observing that the

statute “contains no jurisdictional element which would ensure, through case-by-case

inquiry, that the firearm possession in question affects interstate commerce”); accord

Morrison, 529 U.S. at 613 (observing first that “[g]ender-motivated crimes of violence

are not, in any sense of the phrase, economic activity” and then separately observing that

the statute “contains no jurisdictional element establishing that the federal cause of action

is in pursuance of Congress’ power to regulate interstate commerce”). While the

inclusion of a proper jurisdictional element may ensure that the application of Congress’

regulation of the activity is a proper exercise of its Commerce Clause power, that is a

distinct question from considering whether the underlying activity being regulated is

economic or noneconomic in nature.

Subsequent Supreme Court and Fourth Circuit cases have followed Lopez and

Morrison, keeping separate the inquiry into the economic nature of the root activity being

regulated from the inquiry into the jurisdictional element’s effect on the statute’s

constitutionality. This understanding is consistent with the Supreme Court’s description

in Torres that the “substantive elements [of a federal offense] primarily define the

behavior that the statute calls a violation of federal law,” while the “jurisdictional

51
element . . . ties [that] offense . . . to one of Congress’s constitutional powers.” 136 S. Ct.

at 1624 (alterations and internal quotation marks omitted). And that view has been

implemented in cases like Raich, where the Supreme Court upheld the Controlled

Substances Act (“CSA”) based on the CSA being a comprehensive regulation of an

economic activity—the drug market—without reference to the Act’s jurisdictional

element. 545 U.S. at 25 (“[T]he activities regulated by the CSA are quintessentially

economic.”). And in Jones, when considering what the federal arson statute’s

jurisdictional element must mean so that a prosecution may be a valid exercise of

Congress’ Commerce Clause power, the Supreme Court operated from the premise—

though did not explicit decide—that arson as a root activity could not be regulated absent

that element. 529 U.S. at 850–59; see Russell, 471 U.S. at 858–62. Similarly, cases from

this Circuit have considered separately whether the root activity being regulated was

economic or noneconomic from whether the jurisdictional element would ensure the

statute’s constitutionality. E.g., Umana, 750 F.3d at 336–38; Gibert, 677 F.3d at 624–27.

In enacting 18 U.S.C. § 249(a)(2), Congress sought to regulate “hate crimes” by

prohibiting: “willfully caus[ing] bodily injury to any person” or attempting to do so

through various described means “because of the actual or perceived” protected

characteristics of the victim. § 249(a)(2). Put another way, the activity being regulated is

the substantive offense of “willfully caus[ing] bodily injury” to another person based on a

protected characteristic. Id. While the jurisdictional basis for Congress’ regulation of that

activity is an element of the offense, it is not part of the activity being regulated. It simply

52
ties the substantive offense to Congress’ Commerce Clause power. See Torres, 136 S. Ct.

at 1624.

The first and third subsections of § 249(a), which regulate the same root activity as

§ 249(a)(2), confirm this understanding of what Congress is regulating in this statute.

Subsection (a)(1) prohibits “willfully caus[ing] bodily injury to any person” or attempting

to do so through various described means “because of the actual or perceived” protected

characteristics of the victim. § 249(a)(1). The only difference in the two substantive

offenses under § 249(a)(1) and (2) is the covered protected characteristics of the victim.

That difference is tied to Congress’ stated constitutional grounds for enacting the two

separate statutory provisions: Congress cited its authority under the Thirteenth

Amendment to enact subsection (a)(1), and the protected characteristics of the victim

purportedly relate back to that authority (“race, color, religion, or national origin”), while

it cited its authority under the Commerce Clause to enact subsection (a)(2), where the

protected characteristics of the victim are not so restricted. See Matthew Shepard &

James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111–84, Div. E., § 4702, 123

Stat. 2190, 2836 (2009); see also United States v. Cannon, 750 F.3d 492, 497–505 (5th

Cir. 2014) (discussing Congress’ authority to enact legislation eliminating the badges and

incidents of slavery under the Thirteenth Amendment, and holding § 249(a)(1) to be a

constitutional exercise of Congress’ authority); United States v. Hatch, 722 F.3d 1193,

1196–1206 (10th Cir. 2013) (same); United States v. Maybee, 687 F.3d 1026, 1030–31

(8th Cir. 2012) (same). For this reason, too, subsection (a)(1) does not have a

jurisdictional element akin to subsection (a)(2)(B). Similarly, subsection (a)(3) prohibits

53
the same conduct described in subsection (a)(1) and (a)(2)(A) if that root regulated

activity occurred “within the special maritime or territorial jurisdiction of the United

States.” § 249(a)(3). By connecting the same root regulated activity to a different

jurisdictional element, Congress sought to ensure that offenses brought under subsection

(a)(3) were also within its enumerated powers to regulate. See U.S. Const. Art. I, § 8, cl.

10, 17; 18 U.S.C. § 7. In sum, in enacting § 249(a), Congress plainly intended to regulate

certain “hate crimes,” by criminalizing the willful infliction of bodily injury based on

certain protected characteristics but through distinctively separate jurisdictional grounds

of authority.

But the root activity § 249(a)(2) regulates is simply a subcategory of all assaults,

conduct that has no discernible connection to commercial or economic activity of any

sort, let alone the interstate variety. 12 See Morrison, 529 U.S. at 613 (“Gender-motivated

crimes of violence are not, in any sense of the phrase, economic activity.”); see also Bond

v. United States, 572 U.S. 844, 863 (2014) (rejecting an argument that a federal statute

“reache[d] the simplest of assaults” because that would “intrude upon the police power of

the States” to regulate “traditionally local criminal conduct”); Brzonkala v. Va.

Polytechnic Inst. & State Univ., 169 F.3d 820, 903 (4th Cir. 1999) (en banc) (Niemeyer,

J., concurring), aff’d sub nom. Morrison, 529 U.S. at 598 (“Because the general police

power is recognized to include the right of the States to promote the public health, safety,

12
In prosecuting Hill under § 249(a)(2)(B)(iv)(I), the Government sought to
punish him for the specific act of punching a co-worker because of that co-worker’s
actual or perceived sexual orientation, which is also simply a subset of all assaults.

54
welfare, and morals of the State, it is not disputed that redress for assault . . . traditionally

falls within the States’ police power.” (citation omitted)). Nor is § 249(a)(2) part of a

comprehensive scheme, such that regulation of both interstate and intrastate activities is

necessary to ensure that an interstate market is effectively regulated. See Lopez, 514 U.S.

at 561 (observing that the possession of a firearm offense was not “an essential part of a

larger regulation of economic activity, in which the regulatory scheme could be undercut

unless the intrastate activity were regulated”).

It’s also worth noting here that although the majority frames its analysis of

§ 249(a)(2)’s regulated activity to include the statute’s jurisdictional element, they agree

with the clear basic premise that “there is nothing ‘inherently’ economic about bias-

motivated assaults.” Ante at 27. Moreover, nothing in its subsequent discussion of the

Supreme Court’s cases conflicts with this fundamental understanding that certain acts—

infliction of bodily injury being one of them—are not inherently economic activities and

thus cannot be regulated absent some other means of connecting the activity to Congress’

Commerce Clause power. Therefore, the majority erred in failing to separate

§ 249(a)(2)’s root activity from the jurisdictional element for this inquiry, which led to its

equally erroneous designation of this statute as an economic regulation as opposed to a

noneconomic one: one that thus fails to fall within Congress’ Commerce Clause

authority.

2.

Given its centrality to the majority’s analysis, a brief discussion regarding the

Supreme Court’s decision in Taylor is warranted. The majority vastly overreads Taylor as

55
a basis for concluding that Congress has power under the Commerce Clause to regulate

the range of commercial and economic activity that § 249(a)(2)(B)(iv)(I) encompasses.

The Supreme Court explicitly limited its holding in Taylor to Hobbs Act robberies

in which a defendant targets drugs or drug proceeds; it did not purport to address the

Government’s burden for proving the jurisdictional element in other Hobbs Act cases, let

alone its burden of proof for the jurisdictional element of other statutes. I take the

Supreme Court at its word. See Taylor, 136 S. Ct. at 2082 (“Our holding today is limited

to cases in which the defendant targets drug dealers for the purpose of stealing drugs or

drug proceeds. We do not resolve what the Government must prove to establish Hobbs

Act robbery where some other type of business or victim is targeted.”). This limitation

was directed squarely at Justice Thomas’ dissenting opinion, which cautioned that the

majority’s “reasoning allows for unbounded regulation” akin to a general police power.

Id. at 2087 (Thomas, J., dissenting). Justice Thomas’ concerns have been borne out

today, as the majority has construed Congress’ authority under the Commerce Clause to

authorize prosecutions under a purported jurisdictional element requiring no nexus to

interstate commerce.

In addition, the majority overlooks that Taylor—and Raich—addressed a different

aspect of Congress’ authority to regulate under the Commerce Clause than what is at

issue in this case. Those cases specifically involved purely intrastate activities that can be

regulated as part of the comprehensive regulation of an interstate economic market. There

is no such market here.

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 The analysis and result in Taylor flowed directly from the Court’s analysis in

Raich. Id. at 2081 (“[O]ur decision in Raich controls the outcome here. As long as

Congress may regulate the purely intrastate possession and sale of illegal drugs, Congress

may criminalize the theft or attempted theft of those same drugs.”). In Raich, the

Supreme Court considered the constitutionality of the CSA, a comprehensive regulatory

scheme directed at an entire economic market. 545 U.S. at 5. Prohibiting regulation of

purely intrastate applications of the CSA could leave “a gaping [enforcement] hole” that

would undermine Congress’ ability to effectively regulate the underlying economic

activity of the interstate drug market. Id. at 22. But Raich’s holding was limited to that

context, which is inapplicable to the purely noneconomic, stand-alone statute in this case.

As the district court recognized, “[u]nlike the CSA, [§ 249(a)(2)(B)(iv)(I)] does

not regulate a commercial interstate market.” United States v. Hill, No. 3:16-cr-00009-

JAG, 2018 WL 3872315, at *6 n.6 (E.D. Va. Aug. 15, 2018). Instead, it falls on “the

opposite end of the regulatory spectrum” from the CSA, which was at issue in Raich, and

is instead the sort of “brief, single-subject statute” that was at issue in Lopez and

Morrison. Raich, 545 U.S. at 23–24. Raich distinguished Congress’ ability to regulate

intrastate commerce as part of comprehensive commercial market regulation from the

sort of statute at issue in Lopez. In doing so, the Court followed the same reasoning it had

used in Lopez, as both cases reiterated statutes that are not “an essential part of a larger

regulation of economic activity” cannot “be sustained under [Supreme Court] cases

upholding regulations of activities that arise out of or are connected with a commercial

transaction, which viewed in the aggregate, substantially affects interstate commerce.”

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Lopez, 514 U.S. at 561; accord Raich, 545 U.S. at 24. Taylor, in turn, merely “graft[ed]

[the] holding in Raich onto the commerce element of the Hobbs Act,” without

considering directly what the Commerce Clause would require of the Act’s jurisdictional

element in cases not involving robberies of “drug dealers for the purpose of stealing

drugs or drug proceeds.” Taylor, 136 S. Ct. at 2080, 2082. Consequently, it is error to

apply the principles governing when such comprehensive regulatory schemes are a valid

exercise of Congress’ Commerce Clause power to the question of whether

§ 249(a)(2)(B)(iv)(I) is a valid exercise of that power.

In sum, § 249(a)(2)(B)(iv)(I) cannot be sustained under Taylor and Raich (or the

earlier regulatory cases Lopez had distinguished) because all those cases involved the

regulation of purely intrastate activities that, as a necessary part of regulation of interstate

activities, plainly fell within Congress’ Commerce Clause power. See Lopez, 514 U.S. at

558. In holding otherwise, the majority divorces Raich and Taylor from their necessary

jurisprudential underpinnings. As a consequence, the majority wrongly construes Taylor

to read Congress’ authority under the Commerce Clause as the unrestricted power to

regulate all interference with individuals engaged in any ongoing commercial or

economic activity.

3.

As discussed in detail earlier, when examining whether prosecutions under

§ 249(a)(2)(B)(iv)(I) are sufficiently connected to interstate commerce to satisfy the

Constitution, the noneconomic nature of the root activity regulated by § 249(a)(2)

prohibits the Government from aggregating all bias-motivated assaults interfering with a

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victim’s commercial or economic activity to satisfy its burden to show that Hill’s

prosecution has the requisite nexus to Congress’ power under the Commerce Clause. 13 As

the Court recognized in Morrison, while it “need not adopt a categorical rule against

aggregating the effects of any noneconomic activity in order to decide these cases, thus

far in our Nation’s history [its] cases have upheld Commerce Clause regulation of

intrastate activity only where that activity is economic in nature.” 529 U.S. at 613; accord

Taylor, 136 S. Ct. at 2079–80 (reiterating and adhering to this principle). Because the

root activity the provision regulates is noneconomic, the Government cannot aggregate its

effects to satisfy the Commerce Clause’s requirements.

The reasons behind this constraining principle are simple: otherwise, Congress’

Commerce Clause power would be limitless. The Supreme Court has “reject[ed] the

argument that Congress may regulate noneconomic, violent criminal conduct based

solely on that conduct’s aggregate effect on interstate commerce.” Morrison, 529 U.S. at

617. This is so, in large part, because at some level of generality and aggregation, all

crime can be construed to affect commerce. See Lopez, 514 U.S. at 563–64 (rejecting the

Government’s argument that the costs of violent crime affect the national economy

because that would allow Congress to regulate “not only all violent crime, but all

13
Where a valid jurisdictional element exists, such that a “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.” Perez v. United States, 402 U.S. 146,
154 (1971) (emphasis added) (internal quotation marks omitted); see also Taylor, 136 S.
Ct. at 2081. But that’s not the case here, where prosecutions brought under
§ 249(a)(2)(B)(iv)(I) are not, as a class, activities Congress can regulate under its
Commerce Clause power.

59
activities that might lead to violent crime, regardless of how tenuously they relate to

interstate commerce”). Such a view would eliminate the necessary “distinction between

what is truly national and what is truly local.” Morrison, 529 U.S. at 617–18. As the

Court explained:

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.

Id. at 618 (citation omitted); see also Lopez, 514 U.S. at 564–65; Brzonkala, 169 F.3d at

839–40 (“Lopez clearly forecloses [looking to the aggregate effects of entire classes of

activities] to sustain congressional regulation of noneconomic activities . . . . To extend

such reasoning beyond the context of statutes regulating economic activities and uphold a

statute regulating noneconomic activity merely because that activity, in the aggregate, has

an attenuated, though real, effect on the economy, and therefore presumably on interstate

commerce, would be effectively to remove all limits on federal authority, and to render

unto Congress a police power impermissible under our Constitution.” (citations

omitted)). 14

14
The majority sidesteps this federalism mandate by observing that before the
Government can prosecute a defendant under § 249(a)(2), the Attorney General must
certify that the prosecution “is in the public interest and necessary to secure substantial
justice.” 18 U.S.C. § 249(b)(1)(D). It also notes that Virginia prosecutors contacted
federal law enforcement to request federal prosecution because Virginia’s statutes do not
enhance the penalties if an offense is motivated by the victim’s sexual orientation. Both
points are red herrings. Neither the Executive Branch’s view nor a state prosecutor’s zeal
can overcome the Constitution’s grant of limited and enumerated powers to the federal
(Continued)
60
 Hill’s prosecution is a prime example of the Supreme Court’s concern that

aggregating noneconomic crimes to arrive at the requisite connection to interstate

commerce would render the Commerce Clause meaningless and indistinguishable from

the constitutional defects in Lopez and Morrison. Hill’s punch had no discernible impact

on any commercial or economic activity scheduled to occur that day. Other workers at

the distribution center absorbed the men’s work, leading two witnesses to testify Hill’s

assault had no commercial impact whatsoever, let alone any effect on interstate

commerce. First, Gina Serafini, an Amazon assistant manager, testified that the assault

did not result in any missed critical pull times, or otherwise affect the ability to meet

those times, which indicate that packages were shipped in the time Amazon had promised

delivery. J.A. 420, 429. Second, expert witness Dr. Jonathan Whitaker testified that,

based on his review of Amazon’s shift performance statistics for the distribution center,

“Amazon’s financial and operational performance on that shift [during which the assault

occurred] was no different than any other shift.” 15 J.A. 448, 457–58.

To allow Congress to exercise its Commerce Clause power over the noneconomic

offense of a bias-motived punch would allow Congress to exercise its Commerce Clause

government. It is the Court’s responsibility to ensure that Congress has not overreached
in enacting § 249(a)(2)(B)(iv)(I) and that the Government has not overreached by
prosecuting a defendant under this provision when doing so would exceed Congress’
Commerce Clause power.
15
Specifically, he reported that Amazon’s records showed that the distribution
center shipped 99.9931% of their packages on time during the shift in which the assault
occurred, which was comparable to both the next shift (99.9932%) and the “average for
all the shifts during May for that facility” (99.9939%). J.A. 458–59.

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power based on such indirect—and often, as here, non-existent—connection to commerce

that it converts the Clause into a federal police power. Certainly, “congressional power

under the Commerce Clause is necessarily one of degree.” Lopez, 514 U.S. at 566

(internal quotation marks omitted). But at the same time, the Supreme Court has

recognized that some attempts to regulate activities affecting commerce are too remote to

be justified under the Commerce Clause:

There is a view of causation that would obliterate the distinction between
what is national and what is local in the activities of commerce. Motion at
the outer rim is communicated perceptibly, though minutely, to recording
instruments at the center. A society such as ours is an elastic medium which
transmits all tremors throughout its territory; the only question is of their
size.

Id. at 567 (internal quotation marks omitted) (quoting A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 554 (1935) (Cardozo, J., concurring)). Hill’s prosecution

under § 249(a)(2)(B)(iv)(I) is such a case.

I agree with the district court’s conclusion that allowing Hill’s conviction to stand

would mean that § 249(a)(2)(B)(iv)(I)’s scope “would barely have an end, as [it] could

cover any conduct that occurs anywhere, as long as the government can show that the

victim was ‘engaged’ in some sort of economic activity.” Hill, 2018 WL 3872315, at *9.

This unauthorized Commerce Clause expansion would result in a host of problems

including the federalization of commercial property, the regulation of all aspects of

employment and workplace conduct, and even the home, should individuals be engaged

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in work while there. 16 That “cast[s] a very large shadow, indeed, and very little activity

would remain in the exclusive province of the police powers of the state.” Id. (alterations

and internal quotation marks omitted). In sum, § 249(a)(2)(B)(iv)(I) regulates

noneconomic activity that cannot be aggregated to arrive at the requisite substantial effect

on interstate commerce to establish that it is a valid exercise of Congress’ Commerce

Clause power.

C.

Although legislative findings are not required in order to conclude that a statute

has a substantial effect on interstate commerce, the Supreme Court has repeatedly

recognized that such findings are relevant and often useful to a Commerce Clause

inquiry. Lopez, 514 U.S. at 563. In particular, legislative findings may allow courts to

identify a substantial effect that is not “visible to the naked eye.” Id. But because whether

a particular regulation sufficiently affects interstate commerce remains a question of law

for courts to decide, the mere existence of legislative findings containing Congress’ view

on the matter is not dispositive. As the district court succinctly observed: “Just because

Congress says something is so does not make it so.” Hill, 2018 WL 3872315, at *7;

accord Morrison, 529 U.S. at 614 (“[S]imply because Congress may conclude that a

particular activity substantially affects interstate commerce does not necessarily make it

16
While the majority purports to reject the view that § 249(a)(2)(B)(iv)(I) could be
applied wherever an individual is at work, it offers no limiting principle for why
interfering with an employee’s work would not always qualify as interfering with
“commercial or other economic activity,” whether it’s her own activities as an employee
or her employer’s activities as a member of the national market.

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so.” (alteration in original) (quoting Lopez, 514 U.S. at 557 n.2). Instead, courts look to

whether the findings demonstrate the requisite connection to interstate commerce that the

Constitution demands. Morrison, 529 U.S. at 614–15.

The Government cannot rely on the legislative findings underpinning § 249(a)(2)

any more than it could in Morrison. Allowing the requisite link to be established by such

generic boilerplate would, “[i]f accepted, . . . allow Congress to regulate any crime.” Id.

at 615. The preamble to the Hate Crimes Prevention Act identified several ways Congress

believed bias-motivated crimes substantially affected interstate commerce. See § 4702,

123 Stat. at 2836. Relevant here, Congress found “[t]he movement of members of

targeted groups is impeded, and members of such groups are forced to move across State

lines to escape the incidence or risk of such violence” and “[m]embers of targeted groups

are prevented from purchasing goods and services, obtaining or sustaining employment,

or participating in other commercial activity.” Id. In Morrison, however, the Supreme

Court rejected the sufficiency of nearly identically congressional findings with respect to

gender-motivated violent crimes—that they affected interstate commerce “by deterring

potential victims from traveling interstate, from engaging in employment in interstate

business, and from transacting with business, and in places involved in interstate

commerce; by diminishing national productivity, increasing medical and other costs, and

decreasing the supply of and the demand for interstate products.” 529 U.S. at 615

(internal quotation marks omitted). The Supreme Court has never retreated from this rule.

The same reasoning that led the Supreme Court to reject the sufficiency of the

legislative findings in Morrison compels rejection of the findings in § 249(a)(2) as well:

64
they offer no specific connection between the activity being regulated and interstate

commerce and instead point to general—and ultimately unworkable—principles tied to

the down-stream effects of certain crimes on interstate commerce, all of which the

Supreme Court has rejected. See id. To accept this sort of finding to establish federal

jurisdiction would “completely obliterate the Constitution’s distinction between national

and local authority” because findings offer no limiting principle. Id. If a subset of violent

crimes can be regulated based on their downstream economic effects, then Congress

could rely on the same finding to regulate all violent crime because “a subset of all

violent crime[ ] is certain to have lesser economic impacts than the larger class of which

it is a part.” Id.; see also Lopez, 514 U.S. at 563–64 (rejecting the Government’s “costs of

violent crime” and “national productivity” arguments to connect the regulated activity to

interstate commerce as insufficient because “if 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”).

For these reasons, Congress’ findings do not articulate the connection between a

bias-motivated punch and interstate commerce so as to be sufficient under the Commerce

Clause to allow Hill’s prosecution.

D.

The attenuated link between the regulated activity and interstate commerce here

demonstrates why Congress lacked the power under the Commerce Clause to regulate the

class of activities at issue in this case. Because no intuitive connection between bias-

motivated assaults and interstate commerce exists, it’s necessary to “pile inference upon

65
inference” to create one. Lopez, 514 U.S. at 567. And that’s precisely the sort of analysis

the Supreme Court rejected in Lopez and Morrison. See Morrison, 529 U.S. at 617–18

(reiterating that “[t]he Constitution requires a distinction between what is truly national

and what is truly local”).

III.

The analysis ends under the Lopez and Morrison factors as they clearly direct that

Hill’s prosecution under § 249(a)(2)(B)(iv)(I) does not fall within Congress’ enumerated

powers. Nonetheless, a few additional principles also support this conclusion: (1)

avoiding constitutional doubt; (2) federalism; and (3) the rule of lenity.

A.

“[W]here a statute is susceptible of two constructions, by one of which grave and

doubtful constitutional questions arise and by the other of which such questions are

avoided, our duty is to adopt the latter.” Jones, 529 U.S. at 857 (quoting United States ex

rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)). Justice Ginsburg,

writing for the Supreme Court in Jones, relied on this “guiding principle” to reject the

Government’s proposed “expansive interpretation” of the federal arson statute that would

have held that a building was “used in” interstate commerce because it had been used as

“collateral to obtain and secure a mortgage” from an out-of-state lender; used to obtain an

insurance policy from an out-of-state insurer; and used “to receive natural gas” from out-

of-state sources. Id. at 855, 857. The Court observed that under this view, “hardly a

building in the land would fall outside the federal statute’s domain.” Id. at 857. And, in

66
rejecting this interpretation, the Court observed that “it is appropriate to avoid the

constitutional question that would arise were we to read [the statute] to render the

traditionally local criminal conduct in which petitioner . . . engaged a matter for federal

enforcement.” Id. at 858 (internal quotation marks omitted).

As well illustrated by the foregoing discussion, the same concern cautions against

the broad view of Congress’ Commerce Clause power adopted by the majority in this

case. Following the admonition of Jones, we should abjure from the constitutionally

suspect approach and adopt an understanding that will avoid “grave and doubtful

constitutional questions.” Id. at 857.

B.

I also echo the concerns expressed by Justice Stevens in his concurrence in Jones

in that this case involves “the kinship between [the Court’s] well-established presumption

against federal pre-emption of state law, and [its] reluctance to believe Congress intended

to authorize federal intervention in local law enforcement in a marginal case such as

this.” Id. at 859 (Stevens, J., concurring) (citation and internal quotation marks omitted).

A defendant found liable of violating § 249(a)(2) is subject to a ten-year maximum

sentence, while the comparable state offense is a misdemeanor with a maximum sentence

of a year. See Va. Code § 18.2-57. “[A] criminal law like this . . . effectively displace[s] a

policy choice made by” Virginia both with respect to how to punish assaults and whether

to increase the penalty based on the motive for the assault. Jones, 529 U.S. at 859

(Stevens, J., concurring). While Congress unquestionably has the power to preempt state

law in lawful exercises of its constitutional powers, it cannot exceed that authority by

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using language that encompasses more than it can regulate. Because that is what would

occur if § 249(a)(2)(B)(iv)(I) were interpreted in a way to allow Hill’s conviction to

stand, I cannot join the majority’s opinion.

C.

Lastly, the majority’s broad reading of § 249(a)(2)(B)(iv)(I) to encompass Hill’s

conduct should have been avoided under the rule of lenity. The Supreme Court “ha[s]

instructed that ambiguity concerning the ambit of criminal statutes should be resolved in

favor of lenity.” Id. at 858 (internal quotation marks omitted). Put another way, “the tie

must go to the defendant.” United States v. Santos, 553 U.S. 507, 514 (2008). Because of

the grave constitutional doubts surrounding application of § 249(a)(2)(B)(iv)(I) to

punches that interfere with any commercial or economic activity in which a victim was

engaged, the rule of lenity further counsels against allowing Hill’s conviction to stand.

IV.

Although Hill’s prosecution under § 249(a)(2)(B)(iv)(I) exceeded Congress’

Commerce Clause power, no one condones Hill’s underlying conduct. Workplace

violence is inexcusable whatever its motive, and punches are well within a State’s general

police power to punish. But this case is not about the general immorality or criminality of

Hill’s conduct; it is about whether Congress can regulate that conduct under its power to

regulate activities that have a substantial effect on interstate commerce. For the reasons

set out above, Hill’s prosecution lacked the requisite connection to interstate commerce

68
to fall within Congress’ Commerce Clause power. I therefore respectfully dissent and

would affirm the judgment of the district court.

69