United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
___________ FILED
November 11, 2022
No. 21-10556 Lyle W. Cayce
___________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Joshua Seekins,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-563-1
______________________________
ON PETITION FOR REHEARING EN BANC
Before Stewart, Elrod, and Graves, Circuit Judges.
Per Curiam:
Treating the petition for rehearing en banc as a petition for panel re-
hearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is DE-
NIED. The petition for rehearing en banc is DENIED because, at the re-
quest of one of its members, the court was polled, and a majority did not vote
in favor of rehearing (Fed. R. App. P. 35 and 5th Cir. R. 35).
No. 21-10556
In the en banc poll, seven judges voted in favor of rehearing (Jones,
Smith, Willett, Ho, Duncan, Engelhardt, and Oldham), and nine voted
against rehearing (Richman, Stewart, Dennis, Elrod, Southwick, Haynes,
Graves, Higginson, and Wilson).
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No. 21-10556
James C. Ho, Circuit Judge, joined by Smith and Engelhardt,
Circuit Judges, dissenting from denial of rehearing en banc:
In a country populated by well over 300 million people, we’re bound
to vociferously disagree on a wide range of issues. Indeed, the Anti-
Federalists opposed the proposed United States Constitution and the
creation of our national government for that very reason.
As the Anti-Federalists explained, “[h]istory furnishes no example of
a free republic, any thing like the extent of the United States.” Brutus I
(Oct. 18, 1787), in 2 The Complete Anti-Federalist 368 (Herbert
J. Storing ed. 1981). That’s because, they cautioned, “a free republic cannot
succeed over a country of such immense extent, containing such a number of
inhabitants, . . . as that of the whole United States.” Id. They warned that
“[t]he laws and customs of the several states are, in many respects, very
diverse, and in some opposite.” Id. at 370. They feared that the proposed
United States “would not only be too numerous to act with any care or
decision, but would be composed of such heterogenous and discordant
principles, as would constantly be contending with each other.” Id. They
worried that republics could prosper only if “the manners, sentiments, and
interests of the people should be similar,” as would only exist if the republic
were “confined to a single city” or over a “small” territory. Id. at 369.
The Federalists, of course, prevailed. They predicted that we would
be better off if we could come together as a single, unified country—that
enormous diplomatic, military, economic, and other benefits would
inevitably flow from scale. See, e.g., The Federalist No. 14, at 99 (James
Madison) (Clinton Rossiter ed., 1961) (“We have seen the necessity of the
Union, as our bulwark against foreign danger, as the conservator of peace
among ourselves, as the guardian of our commerce and other common
interests.”). And they promised that we would come together, and that Anti-
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Federalist fears would not become reality, because our new national
government would be one of limited powers—one that would respect our
great diversity of viewpoints, by preserving community differences and local
rules. See, e.g., id. at 102 (“[T]he general government is not to be charged
with the whole power of making and administering laws. Its jurisdiction is
limited to certain enumerated objects, which concern all the members of the
republic, but which are not to be attained by the separate provisions of any.
The subordinate governments, which can extend their care to all those other
subjects which can be separately provided for, will retain their due authority
and activity.”).
But constitutional limits on governmental power do not enforce
themselves. They require vigilant—and diligent—enforcement.
For too long, our circuit precedent has allowed the federal
government to assume all but plenary power over our nation. In particular,
our circuit precedent licenses the federal government to regulate the mere
possession of virtually every physical item in our nation—even if it’s
undisputed that the possession of the item will have zero impact on any other
state in the union. The federal government just has to demonstrate that the
item once traveled across state lines at some point in its lifetime, no matter
how distant or remote in time. See United States v. Rawls, 85 F.3d 240, 242–
43 (5th Cir. 1996).
That is no limit at all. If the only thing limiting federal power is our
ability to document (or merely speculate about) the provenance of a
particular item, the Founders’ assurance of a limited national government is
nothing more than a parchment promise.
Rehearing this case en banc would have given us an ideal vehicle and
welcome opportunity to reconsider our mistaken circuit precedent. I dissent
from the denial of rehearing en banc.
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No. 21-10556
***
The Constitution creates a federal government of enumerated
powers. See U.S. Const. art. I, § 8. And those powers are “few and
defined.” United States v. Lopez, 514 U.S. 549, 552 (1995) (citing The
Federalist No. 45, at 292–93 (James Madison) (Clinton Rossiter ed.,
1961)). See also Marbury v. Madison, 1 Cranch 137, 176 (1803) (“The powers
of the legislature are defined, and limited; and that those limits may not be
mistaken, or forgotten, the constitution is written.”). This enumeration
ensures “a healthy balance of power between the States and the Federal
Government [and] reduce[s] the risk of tyranny and abuse from either front.”
Lopez, 514 U.S. at 552 (cleaned up).
But now consider the facts presented in this case: The federal
government seeks to incarcerate a homeless man (and previously convicted
felon) for possessing two shotgun shells that he found in a dumpster.
It’s hard to imagine a more local crime than this. There’s no record
evidence that his possession of these items will have any impact on any other
state. There’s no record evidence of any commercial transaction of any kind
involving the shells—or even that the shells traveled across state lines at any
particular moment in time. All that’s here is testimony that the manufacturer
of shells that match the items possessed by Seekins manufactured those
shells in another state.
A panel of this court was duty-bound to uphold the conviction as a
matter of circuit precedent. United States v. Seekins, 2022 WL 3644185, *2
(5th Cir. 2022). Accordingly, Seekins argues that Rawls and its progeny
warrant en banc review because they are “premised on serious error” and
are contrary to structural limits on the federal government’s power under the
Commerce Clause.
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I agree. There must be some limit on federal power under the
Commerce Clause. But our circuit precedent fails to recognize this. Our
precedent on felon-in-possession statutes allows the federal government to
regulate any item so long as it was manufactured out-of-state—without any
regard to when, why, or by whom the item was transported across state lines.
But that would mean that the federal government can regulate virtually every
tangible item anywhere in the United States. After all, it’s hard to imagine
any physical item that has not traveled across state lines at some point in its
existence, either in whole or in part.
The Supreme Court has repeatedly warned us that the Commerce
Clause power “must be read carefully to avoid creating a general federal
authority akin to the police power.” NFIB v. Sebelius, 567 U.S. 519, 536
(2012). Yet our circuit precedent would allow just that. If it’s enough that
some object (or component of an object) at some unknown (and perhaps
unknowable) point in time traveled across state lines to confer federal
jurisdiction, it’s hard to imagine anything that would remain outside the
federal government’s commerce power. There is no plausible reading of the
Commerce Clause, as originally understood by our Founders, that could
possibly give the federal government such reach. See, e.g., Lopez, 514 U.S. at
585–587 (Thomas, J., concurring) (discussing the original meaning of the
Commerce Clause). See also Randy E. Barnett, The Original Meaning of the
Commerce Clause, 68 U. Chi. L. Rev. 101, 146 (2001) (“The most
persuasive evidence of original meaning . . . strongly supports Justice
Thomas’s and the Progressive Era Supreme Court’s narrow interpretation
of the Congress’s power [under the Commerce Clause].”); William J.
Seidleck, Originalism and the General Concurrence: How Originalists Can
Accommodate Entrenched Precedents While Reining in Commerce Clause
Doctrine, 3 U. Pa. J. L. & Pub. Affs. 263, 269 (2018) (“The founding
generation understood the term ‘commerce’ to mean only ‘trade or exchange
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of goods.’ . . . The writings of the framers and the purpose behind the creation
of the Commerce Clause also confirm its intended narrow scope.”).
Indeed, every member of the panel in Rawls recognized this problem.
The entire panel specially concurred, noting that “one might well wonder
how it could rationally be concluded that mere possession of a firearm in any
meaningful way concerns interstate commerce simply because the firearm
had, perhaps decades previously before the charged possessor was even born,
fortuitously traveled in interstate commerce.” 85 F.3d at 243 (Garwood, J.,
specially concurring).
Rawls nevertheless affirmed the constitutionality of the conviction
under the Commerce Clause because the panel believed that Supreme Court
precedent required them to do so. In Scarborough v. United States, 431 U.S.
563 (1977), the Supreme Court held the then-operative felon-in-possession
statute was satisfied merely by the firearm’s transportation, at some point in
time, across state lines. 431 U.S. 563, 577 (1977).
But our reliance on Scarborough was erroneous for at least two reasons.
First, the Court’s holding in Scarborough was statutory, not constitutional.
See Scarborough, 431 U.S. at 567, 569–77. See also J. Richard Broughton, The
Ineludible (Constitutional) Politics of Guns, 46 Conn. L. Rev. 1345, 1360
(2014). Second, Scarborough pre-dates Lopez, where the Court cabined the
constitutional power of the federal government under the Commerce Clause.
See 514 U.S. at 568.
A number of circuit judges nationwide have noted the fundamental
inconsistency between Lopez and Scarborough. See, e.g., United States v.
Kuban, 94 F.3d 971, 977–78 (5th Cir. 1996) (DeMoss, J., dissenting) (“[T]he
precise holding in Scarborough is in fundamental and irreconcilable conflict
with the rationale of the United States Supreme Court in United States v.
Lopez[.] . . . The mere fact that a felon possesses a firearm which was
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No. 21-10556
transported in interstate commerce years before the current possession
cannot rationally be determined to have a substantial impact on interstate
commerce as of the time of current possession.”) (quotation omitted);
United States v. Alderman, 565 F.3d 641, 648–650 (9th Cir. 2009) (Paez, J.,
dissenting) (arguing the majority’s upholding of the felon-in-possession-of-
body-armor statute inappropriately extends Scarborough beyond the limits
imposed by Lopez, United States v. Morrison, 529 U.S. 598 (2000), and
Gonzales v. Raich, 545 U.S. 1 (2005)).
Moreover, Justice Thomas has criticized the misapplication of
Scarborough to constitutional challenges under the Commerce Clause:
“[Y]ears ago in Lopez, [the Supreme Court] took a significant step toward
reaffirming th[e] Court’s commitment to proper constitutional limits on
Congress’ commerce power. If the Lopez framework is to have any ongoing
vitality, it is up to th[e] Court to prevent it from being undermined by a 1977
precedent that does not squarely address the constitutional issue.” Alderman
v. United States, 131 S. Ct. 700, 703 (2011) (Thomas, J., dissenting from the
denial of the petition for writ of certiorari). “[P]ermit[ting] Congress to
regulate or ban possession of any item that has ever been offered for sale or
crossed state lines” would be “[s]uch an expansion of federal authority” as
to “trespass on state police powers.” Id. at 703.
In sum, our circuit precedent dramatically expands the reach of the
federal government under the Commerce Clause. No Supreme Court
precedent requires it. And no proper reading of the Commerce Clause
permits it. We should have granted en banc rehearing to reconsider circuit
precedent that—from its inception—circuit judges across the country have
criticized for contravening our Constitution’s limits on federal power.
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No. 21-10556
***
Americans disagree passionately over a wide range of issues—
including a variety of criminal justice issues, such as whether felons should
be punished for possessing firearms. Compare, e.g., Dru Stevenson, In
Defense of Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573, 1577
(2022), with Conor Friedersdorf, The Anti-gun Laws That Make Progressives
Uneasy, The Atlantic, Feb. 10, 2022 (noting that “recent criminal-
justice reform[er]s” seek to “avoid prosecuting people for gun possession
unless they were actually involved in violent crime”); Robert Weiss,
Rethinking Prison for Non-Violent Gun Possession, 112 J. Crim. L. &
Criminology 665 (2022); Zack Thompson, Is it Fair to Criminalize
Possession of Firearms by Ex-Felons?, 9 Wash. U. Juris. Rev. 150 (2016).
In these sharply divided times, I can think of no better moment to
reaffirm our Founders’ respect for diverse viewpoints and restore the proper
constitutional balance between our national needs and our commitment to
federalism.
I dissent from the denial of rehearing en banc.
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