IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-40237
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MASONTAE HICKMAN; MARKUS D CHOPANE; JYI R MCCRAY;
EDWIN T LIMBRICK; EDMOND GASAWAY,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
June 21, 1999
Before KING, Chief Judge, and POLITZ, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.
PER CURIAM:
By reason of an equally divided en banc court, we affirm all
the counts of conviction against all appellants, and we affirm
the sentences of all appellants except Chopane. For the reasons
relating to Chopane’s sentence set out in the panel opinion, see
United States v. Hickman, 151 F.3d 446, 460-62 (5th Cir. 1998),
reh’g granted and opinion vacated, 165 F.3d 1020 (5th Cir. 1999),
we unanimously vacate Chopane’s sentence and remand for
resentencing.
2
HIGGINBOTHAM, Circuit Judge, with whom JOLLY, JONES, SMITH,
DUHE’, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges,
join, dissenting.
Between March and June 1994, various combinations of the
appellants robbed a Subway Sandwich Shop in Beaumont of $230, a
Church’s Chicken restaurant in Jasper of $1848, an AutoZone
automobile parts store in Beaumont of at least $1300, a Church’s
Chicken restaurant in Beaumont of $1160, a Dairy Queen restaurant
in Silsbee of $1300, and a Hardee’s restaurant in Beaumont of
$2000. An additional robbery was unsuccessful. When the
robberies escalated to a killing, they drew attention in deep
East Texas. Although state charges were filed, the United States
Attorney obtained federal indictments. The state charges were
then not pursued. Equally divided, the court today affirms
convictions under the Hobbs Act for these purely local robberies.
I
We believe that the Hobbs Act prosecutions exceeded
Congress’s authority, and we respectfully dissent from this
aspect of the court’s judgment.1 Our concern today is not with
the settled principle that Congress may regulate criminal conduct
with a substantial effect on interstate commerce. Our difficulty
1
We have no quarrel with the court’s decision to follow the
panel opinion by vacating Chopane’s sentence and remanding for
resentencing.
3
is rather with what counts in determining substantial effect. We
would hold that substantial effects upon interstate commerce may
not be achieved by aggregating diverse, separate individual
instances of intrastate activity where there is no rational basis
for finding sufficient connections among them. Of course,
Congress may protect, enhance, or restrict some particular
interstate economic market, such as those in wheat, credit,
minority travel, abortion service, illegal drugs, and the like,
and Congress may regulate intrastate activity as part of a
broader scheme. The Hobbs Act is not a regulation of any
relevant interstate economic market, nor are there other rational
connections among nationwide robberies that would entitle
Congress to make federal crimes of them all.
The Hobbs Act does not target any class of product, process,
or market, or indeed even commercial victims. It facially
applies to any robbery, or its attempt, of any person or entity.
Taking a child’s lemonade is as potentially covered as any other
robbery, at least as long as we are free to aggregate all
robberies. The Hobbs Act offers no “regulatory scheme” which
“could be undercut” if individual robberies were not aggregated.
United States v. Lopez, 514 U.S. 549, 561 (1995). Thus, putting
aside robberies as part of an effort to regulate particular
interstate markets such as guns, drugs, or organized crime
syndicates, a local robbery spree can be within Congress’s power
only if it by itself has a substantial effect.
4
If one could aggregate robberies under the Hobbs Act to
satisfy the constitutional demand of a substantial effect on
commerce, there would be no reason one could not aggregate
murders, or other felonies, to sustain general federal
jurisdiction over all crimes. A great reduction in crimes
generally would obviously have a cumulatively large effect on
interstate commerce. As Chief Justice Marshall said in Cohens v.
Virginia, 19 U.S. (6 Wheat) 264 (1821), however, “Congress has .
. . no general right to punish murder committed within any of the
states,” and “[i]t is clear, that Congress cannot punish felonies
generally.” Id. at 426, 428. Without some judicially
enforceable outer limits to the aggregation theory, “it is
difficult to perceive any limitation on federal power, even in
areas such as law enforcement . . . where States historically
have been sovereign.” Lopez, 514 U.S. at 566.
The government offers no assistance in any effort to locate
the limits of its power. The Solicitor General did not offer in
brief or oral argument any principled limit upon federal
authority to prosecute local robbery or the taking of money by
force – even from a hypothetical five-year-old’s lemonade stand.
Although the government conceded that the Supreme Court
reaffirmed in Lopez that there are limits, it claimed to be
unable to locate those limits beyond the redoubt that at some
point the nexus to interstate commerce becomes too attenuated.
5
We think that the tie that binds together disparate
activities must be made of stronger stuff. Aggregation demands
connection. The principles that we are about to describe are no
more than the underlying theme of past decisions, the by-product
of an effort to find a coherent path that connects them and would
justify myriad federal regulatory schemes. Its modesty aside, we
believe that it offers a principled and judicially enforceable
limit.
II
As the Supreme Court summarized in Lopez, there are “three
broad categories of activity that Congress may regulate under its
commerce power.” 514 U.S. at 558. “First, Congress may regulate
the use of the channels of interstate commerce.” Id. This power
is inapplicable here. A robbery victim, unlike a river or
highway, does not ordinarily provide a means by which goods can
move. “Second, Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities.” Id. This is also inapplicable, because
even when a robbery victim is a store, a store is not an
instrumentality of commerce, like a boat or a car, and, though it
does business in interstate commerce, it is not itself in
interstate commerce.
The third category is the one we must address with the
greatest care here. The grant of authority to Congress, by the
6
Commerce Clause, “includes the power to regulate those activities
having a substantial relation to interstate commerce, i.e., those
activities that substantially affect interstate commerce.” Id. at
558-59 (citation omitted). Yet it is not always necessary that
the activities of the parties to the litigation themselves
substantially affect commerce. Since Wickard v. Filburn, 317
U.S. 111 (1942), the Supreme Court has recognized an aggregation
principle, by which Congress may reach an instance of an activity
that itself does not “substantially affect” commerce if a myriad
of such instances in the aggregate have a substantial effect.
This principle, though, does not explain what activities can
be aggregated when we are to add the effects of discrete acts.
We recognize the dangers of undue abstraction, but without some
account of what it means to aggregate, the aggregation principle
becomes disconnected from the root idea that some individual acts
can be regulated because they are meaningfully part of some
greater whole. We would hold that activities may be aggregated
where the interactive play of their effects is such that
regulation requires the ability to reach individual instances of
the activity to be effective.
The keystone is not similarity in some essentialist sense.
Whatever the strength of Professor Westen’s observations about
the concept of equality, the concept of similarity is “both empty
and confusing: ‘empty’ in that it derives its entire meaning from
normative standards that logically precede it; ‘confusing’ in
7
that it obscures the content of the normative standards that
logically precede it.” Peter Westen, The Meaning of Equality in
Law, Science, Math, and Morals: A Reply, 81 Mich. L. Rev. 604,
604 (1983). Merely because one robbery is similar to another in
that both are members of the legislatively-selected class of
activities that constitute robbery does not mean that we should
examine all robberies as a group for constitutional purposes.
Rather, at the least, individual acts cannot be aggregated
if their effects on commerce are causally independent of one
another. That is, if the effect on interstate commerce directly
attributable to one instance of an activity does not depend in
substantial part on how many other instances of the activity
occur, there is an insufficient connection – in other words, an
interactive effect – and the effect of different instances cannot
be added. If, on the other hand, the occurrence of one instance
of the activity makes it substantially more or less likely that
other instances will occur, then there is an interactive effect
and the effects of different instances can be added. It is this
principle that we believe is meant when the Supreme Court speaks
of a “class of activities.” E.g., Perez v. United States, 402
U.S. 146, 154 (1971) ("Where the class of activities is regulated
and that class is within the reach of federal power, the courts
have no power to excise, as trivial, individual instances of the
class.") (internal quotation marks omitted). As we will see,
there are no such interactive effects for robbery. When someone
8
steals $100, the effect attributable solely to that robbery on
interstate commerce does not depend on how many other robberies
occurred last year, nor will it determine or effect how many
other robberies will occur.
Ordinarily, we would not say always, the interactive effects
will be the supply-and-demand tugs of economic activity. Where
Congress has sought to regulate – protect, enhance, or restrict –
some particular market such as wheat, credit, minority travel, or
abortion service, it has pointed the way to a rational
aggregation test. It has identified those things that affect
that market, things which if not all subject to the regulation
would erode the effort. Intrastate production and sales can be
aggregated, because the prices of goods and services are
determined in interstate markets. If, for example, the federal
government enacts a price control to ensure sufficient income for
producers, it will be thwarted if consumers switch to buying
goods in intrastate commerce or produce the goods themselves.
Because the instances of economic activity are intimately
connected and in the aggregate substantially affect commerce,
Congress can regulate such activity.
We will focus on the distinction between economic and
noneconomic activity. The distinction is not conjured to limit
the commerce power arbitrarily. It is precisely to the contrary.
It follows directly from the notion of causal interdependence –
9
ultimately from an insistence that aggregation rest on a rational
principle.
A
Lopez is a useful starting point. Its reasoning suggests a
distinction between commercial and noncommercial activity. The
Lopez Court struck down the Gun-Free School Zones Act of 1990, 18
U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V). The Act made it a
crime “for any individual knowingly to possess a firearm at a
place that the individual knows, or has reasonable cause to
believe, is a school zone.”
In analyzing its prior approvals of congressional authority,
the Lopez Court emphasized the economic nature of the activity in
those cases. The Court noted, for example, that “we have upheld
a wide variety of congressional Acts regulating intrastate
economic activity where we have concluded that the activity
substantially affected interstate commerce.” Id. at 559 (emphasis
added). Wickard, for example, “involved economic activity in a
way that the possession of a gun in a school zone does not.” 514
U.S. at 560.
Finally, the Court explained, “The possession of a gun in a
local school zone is in no sense an economic activity that might,
through repetition elsewhere, substantially affect any sort of
interstate commerce.” Id. at 567. This statement is important
because it characterizes the aggregation principle as applying to
“economic activity.” Cf. Gerald Gunther & Kathleen M. Sullivan,
10
Constitutional Law 191 (13th ed. 1997) (noting the possibility
that the aggregation principle applies only to economic activity,
without expressing a position on the issue). Though the Court did
not explicitly state that only economic (or other interactive)
activities can be aggregated, it is telling that the Court
avoided characterizing possession as “an activity that might,
through repetition elsewhere, substantially affect any sort of
interstate commerce.”2
Justice Breyer’s dissenting statement of the aggregation
principle differed critically from the majority’s. “In
determining whether a local activity will likely have a
significant effect upon interstate commerce, a court must
consider, not the effect of an individual act (a single instance
of gun possession), but rather the cumulative effect of all
similar instances,” the dissent stated. Id. at 616 (Breyer, J.,
dissenting). From this statement, notably not restricted to a
“local economic activity,” the rest of the dissent’s argument
2
A concurring opinion also suggested a distinction between
commercial and noncommercial activities, though it did not link
this distinction to the aggregation principle. See id. at 577
(Kennedy, J., concurring, joined by O’Connor, J.) (“Were the
Federal Government to take over the regulation of entire areas of
traditional state concern, areas having nothing to do with the
regulation of commercial activities, the boundaries between the
spheres of federal and state authority would blur and political
responsibility would become illusory.”); id. at 583 (“The statute
now before us . . . regulat[es] an activity beyond the realm of
commerce in the ordinary and usual sense of that term.”). A
second concurrence rejected the aggregation principle directly.
See id. at 600 (Thomas, J., concurring). Justices Kennedy,
O’Connor, and Thomas also joined the majority opinion.
11
followed. Guns cause violence, violence hurts education, and
ignorance hinders commerce. See id. at 618-25.
The Lopez majority rejected this position by referring to
the danger of sliding down the proverbial slippery slope: “[I]f
we were to accept the Government’s arguments, we are hard pressed
to posit any activity by an individual that Congress is without
power to regulate.” Id. at 564 (majority opinion). In rejecting
the dissent’s mode of analysis, the Court did not announce a new
analytic framework in an express test. It made unmistakable,
however, that the proper framework must distinguish economic from
noneconomic activity. The Court did so while offering the
following concession: “Admittedly, a determination whether an
intrastate activity is commercial or noncommercial may in some
cases result in legal uncertainty.” Lopez, 514 U.S. at 566.
This does not mean that Congress cannot regulate
noncommercial activity that by itself substantially affects
commerce. Rather, we conclude that the Court demands recognition
of that distinction, or the more expansive one concerning
interactive effects that it symbolizes, in the context of the
aggregation principle itself. The Court implied that besides gun
possession in a school zone, school curriculum design and child
rearing were areas beyond Congress’s control. See id. at 565-66.
As noneconomic activities, these cannot be aggregated, and
individual instances of them can be reached only if they
individually have a substantial effect on interstate commerce.
12
B
A rule that noneconomic activities cannot be aggregated,
where there are no other relevant interactive effects among those
activities, would be consistent with Supreme Court precedents
besides Lopez. The Lopez Court in particular explained how
Wickard, “perhaps the most far reaching example of Commerce
Clause authority over intrastate activity,” id. at 560, is
properly seen as considering economic activity. “The Act was
designed to regulate the volume of wheat moving in interstate and
foreign commerce in order to avoid surpluses and shortages, and
concomitant fluctuation in wheat prices, which had previously
obtained.” Id. Congress was attempting to regulate a market,
and it was essential to reach the discrete components of the
market.
The Wickard Court emphasized the farmer’s role as a player
in an economic system. See id. (“‘[I]f we assume that [wheat] is
never marketed, it supplies a need of the man who grew it which
would otherwise be reflected by purchases in the open market.’”)
(quoting Wickard, 317 U.S. at 128). Wickard led many to suspect
that the Court was prepared to uphold any congressional
legislation whatsoever. We think Wickard fits comfortably with
our insistence upon interactive effects – indeed it is a
compelling example. At the least, there is sufficient ambiguity
over whether the conduct was truly economic, that it offers
13
little or no support for a principle that allows noneconomic
activity to be aggregated.
Other Supreme Court decisions allowing congressional
authority are also consistent. The Lopez Court, indeed, listed
several examples of cases that involve economic activity: Hodel
v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S.
264 (1981) (coal mining); Perez v. United States, 402 U.S. 146
(1971) (credit transactions); Katzenbach v. McClung, 379 U.S. 294
(1964) (restaurants); Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241 (1964) (inns and hotels). See Lopez, 514
U.S. at 559-60.
We are told that our approach runs afoul of Russell v.
United States, 471 U.S. 858 (1985), in which the Court upheld a
federal conviction for conduct amounting to arson. That brief
unanimous opinion of the Court, however, did not confront a
constitutional challenge. Rather it was an effort at statutory
construction. See Russell, 471 U.S. at 862 (alluding to the
aggregation principle only in a paragraph beginning by examining
the “terms [of] the statute”). See also United States v.
Russell, 738 F.2d 825 (7th Cir. 1984), aff’d, 471 U.S. 862 (1985)
(treating directly only the statutory issue). At best, the
government can claim that the litigants assumed the interpretive
issue was dispositive, and Justice Stevens’s opinion for the
Court did no more than settle disagreements among the lower
14
courts over the meaning of the statute. He did not venture to
explore the aggregation thicket.
Here, Congress has merely identified a class of
objectionable conduct – robbery and extortion – and has sought to
regulate such conduct as far as possible. See 18 U.S.C. § 1951;
Stirone v. United States, 361 U.S. 212, 215 (1960) (finding in
the Hobbs Act “a purpose to use all the constitutional power
Congress has to punish interference with interstate commerce by .
. . robbery”). Without identification of a market or specific
property that Congress wishes to protect, it is difficult at best
to assess whether Congress had a rational basis for reaching acts
that are insubstantial when viewed alone. The relevant
constitutional inquiry turns on congressional purpose. See Hodel,
452 U.S. at 276 (“The court must defer to a congressional finding
that a regulated activity affects interstate commerce, if there
is any rational basis for such a finding.”).
Significantly, we cannot invent rational bases that Congress
might have identified. Cf. United States v. Bass, 404 U.S. 336,
349 (1972) (“[U]nless Congress conveys its purpose clearly, it
will not be deemed to have significantly changed the federal-
state balance.”). Hypothetical purposes supplied by counsel or
the judiciary have no place in such a sensitive area of
constitutional balance.
C
15
Though Lopez focuses on economic activity, there is a strong
argument that some of the cases upholding congressional power may
also be explained as resting upon aggregation of noneconomic
activities interacting in other ways. The Perez Court, for
example, emphasized the connections between loan sharking and
organized crime. See 402 U.S. at 155-56. An individual offense
committed by an organized crime group is not isolated from other
offenses committed by that group, and indeed the commission of
one offense promotes the others. Loan sharking was seen as an
important part of the organized whole. For regulation to be
effective, the government may need to be able to prosecute
various intrastate offenses that individually do not have a
substantial effect on interstate commerce.
The Supreme Court expressly noted, “In the setting of the
present case there is a tie-in between local loan sharks and
interstate crime.” Id. at 155. Likewise, if an organized crime
group committed various robberies that together substantially
affected commerce, we would not doubt Congress’s ability to
prosecute a member of the group for one of them pursuant to an
appropriate statute. Such prosecution would be an essential part
of a larger regulatory scheme. For now, though, we need not
venture beyond our principle of economic interdependence. Loan
sharking was seen as the financial life blood of organized crime.
It is suggested that the civil rights cases turning on the
Commerce Clause, Heart of Atlanta and McClung, can be understood
16
to have aggregated discrete acts of discrimination. To be sure,
the Court expressly applied the aggregation principle to the
affected businesses’ economic activity. See, e.g., McClung, 379
U.S. at 300-01. Justice Clark pointed to the testimony before
Congress of the clog upon interstate travel worked by the virtual
apartheid of racial discrimination. See id. at 209-301. The
Court, however, also specifically noted that “while the focus of
the legislation was on the individual restaurant’s relation to
interstate commerce, Congress appropriately considered the
importance of that connection with the knowledge that the
discrimination was but representative of many others throughout
the country.” Id. at 301 (internal quotation marks omitted).
That this economic regulation also had the goal – even a
larger goal – of undermining a racist social norm does not defeat
its constitutionality. Cf. Lawrence Lessig, The Regulation of
Social Meaning, 62 U. Chi. L. Rev. 943, 965-67 (1995) (explaining
that the Civil Rights Act of 1964 served to change the social
meaning ascribed to the serving by a white person of a black
person). Banning particular acts of discrimination may be
ineffectual in changing attitudes and perceptions in the absence
of a blanket ban. Of course, we do not mean that Congress has
the power to regulate an activity whenever it believes that it
can change a social norm. The simple fact is that in the context
of discrimination a local restaurant resisting a norm of racism
would lose to its competitors who did not change. It is thus
17
once again economic regulation that finds its sustenance in the
commerce power. When Congress enacted the public accommodations
provision it confronted acts of discrimination, each with
cumulative economic effect. Only because these acts were
directly connected and interlaced could they form a wall of
resistance, sometimes cemented by state laws that perpetuated
such discrimination.
D
Catching the government’s train of unyielding creative
defenses of its power, one might argue that each incident of
robbery hardens society and makes it more likely that other
robberies will occur. Accepting this argument would allow
congressional regulation of any disfavored activity – quite close
to the government’s argument in this case. Though an individual
act of robbery may make us more resigned to the inevitability of
crime, diverse robberies cannot rationally be said to be causally
dependent on one another. Thus, if various robberies are to be
aggregated, they would need to constitute economic activity. We
would hold that they do not.
Perhaps the most plausible argument that robbery is economic
activity is that it has an effect on prices of goods sold on
interstate markets. Because some robberies increase the cost of
doing business, the argument goes, robbery causes all prices to
rise and is thus economic. This argument, however, is circular.
It seeks to aggregate robberies on the basis that if those
18
robberies were aggregated, a substantial effect on commerce can
be discerned. The question, under our approach, is whether
robberies interact with one another in a way that makes it
rational to sum their effects in Hobbs Act cases. One might
argue that each robbery causes victims to take additional
security precautions, thus making other robberies harder to
commit. This type of effect, however, seems to “pile inference
upon inference,” Lopez, 514 U.S. at 567, and concluding that
because one robbery deters another, Congress can aggregate them,
seems downright bizarre.
One might argue that robbery is economic because it involves
the transfer of money or property from the victim to the robber.
On this account, any such transfer interacts with all other
activity in the economic system and is thus aggregable. While to
the eyes of the economist, the world, like the law, is a seamless
web, we must separate activity that is properly considered
economic from other activity that while having some connection to
economic activity is not properly considered a part of the
economic system itself. We must thus look beyond our definition
of interactivity to develop an account of what “economic
activity” is, without embracing here the suggestions of Gary
Becker and other economists that all activity is in one way or
another “economic.” Economic theory informs and assists in the
development of constitutional doctrine – but it is not and does
not claim to be an organic limit of government.
19
The original understanding of “commerce” provides one source
for such an account. As Justice Thomas persuasively argued,
“[a]t the time the original Constitution was ratified, ‘commerce’
consisted of selling, buying, and bartering, as well as
transporting for these purposes.” Lopez, 514 U.S. at 585 (Thomas,
J., dissenting). Of course, the Supreme Court’s understanding of
“commerce” has grown to include production, entailing
manufacture, agriculture, and services, all of which are
unquestionably economic activities. While the original
understanding must yield to the Supreme Court’s jurisprudence,
where they are aligned, we ought to be wary of choosing a
different path.
There is no basis either in the original understanding or in
the case law for including robbery in economic activity. Robbery
is not selling, buying, or bartering, and it does not produce
anything. It effects only the transfer of resources, and an
involuntary transfer at that. It makes sense that the Framers
wanted Congress to be able to strike against balkanization in
regulating commerce, for in legislating, Congress sets the terms
for economic interaction. Robbery does not implicate such terms,
for robbery is everywhere the unlawful decision by a single party
to deprive another involuntarily of his property. The essence of
commerce is “commercial intercourse,” Gibbons v. Ogden, 22 U.S.
(9 Wheat.) 193 (1824), yet in robbery there is no exchange.
20
These are all strong reasons to conclude that robbery is not
economic activity in the relevant sense, but we arguably do not
need this analysis today. The Supreme Court in Lopez accepted,
indeed took for granted, that education and family law were not
within commerce. See 514 U.S. at 565-66. Along with regulation
of crimes such as firearm possession, control over these areas
traditionally falls under the police power of the states. The
majority believed it necessary to distinguish “between what is
truly national and what is truly local,” id. at 567-68, and the
police power provides a rough guide. Cf. Stone v. Mississippi,
101 U.S. 814, 818 (1879) (noting that it is conceptually far
easier to determine whether an activity falls within the police
power than it is to provide an accurate definition of the police
power). We would hold that robbery is likewise in the realm of
the police power.
The federalization of criminal law is a recent innovation.
See, e.g., Task Force on the Federalization of Criminal Law,
American Bar Ass’n, The Federalization of Criminal Law 7-9
(1998). The police power may include some regulation of criminal
economic activity, and such activity could be aggregated. But
where there is ambiguity as to whether certain activity is
economic, whether that activity would be within the police power
is an informing means of resolving the ambiguity. Because
robbery’s “economic” status is at best uncertain, that robbery is
a traditional target of the police power buttresses our
21
conclusion that robbery is not economic and thus that robberies
cannot be aggregated. This is a qualitative judgment, true
enough. Yet the never-ending task of protecting our federalist
government would be sorely weakened by a purchase only of a
quantitative set.
III
We pause to consider other possible interpretive approaches
to the Commerce Clause and to explain our preference. Other
circuits have held, even after Lopez, that a de minimis effect on
commerce under the Hobbs Act is constitutionally sufficient.
Some of their reasoning is conclusory. See, e.g., United States
v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir. 1995) (stating that the
“Hobbs Act . . . is aimed at a type of economic activity,
extortion,” without explaining why extortion should count as
“economic activity”); United States v. Farmer, 73 F.3d 836, 843
(8th Cir. 1996) (“We have no doubt of the power of Congress to
protect from violence businesses that are part of an interstate
chain.”); cf. United States v. Atcheson, 94 F.3d 1237 (9th Cir.
1996) (assuming, without explanation, that “the Hobbs Act is
directly aimed at economic activities”).
Other cases simply assume that aggregation applies to all
activities, without acknowledging that Lopez approvingly
discussed the aggregation principle only in conjunction with
economic activity. See, e.g., United States v. Bolton, 68 F.3d
396, 399 (10th Cir. 1995) (“if a statute regulates an activity
22
which, through repetition, in aggregate has a substantial affect
[sic] on interstate commerce . . .”) (emphasis added). None
answers the question of who decides what to count in the sums
game.
A panel of this circuit, in United States v. Robinson, 119
F.3d 1205, 1210-15 (5th Cir. 1997), properly recognized that the
ultimate test is whether there was a rational basis for
congressional action. See id. at 1210. Though characterizing
this standard as “deferential,” the panel recognized that
"’[d]eference is not acquiescence.’" Id. (quoting United States
v. Knutson, 113 F.3d 27, 29 (5th Cir. 1997) (per curiam)). The
panel, however, failed to recognize that when applied to the
conceptual question of what effects may be summed, a rationality
test can have bite. In the instant case, the panel acknowledged
that “local robberies are not the sort of economic activity that
can legitimately be viewed in the aggregate for traditional
economic impact analysis purposes,” 151 F.3d at 456, but was
bound by Robinson.
In any event, we will not fight straw men. Rather, we will
examine the five alternative interpretive approaches that we
believe offer the most promise in upholding Hobbs Act convictions
for local robberies. Each of these approaches takes comfort in
one or more of the cases, but we nonetheless find each wanting.
We believe that our approach both fairly treats the cases and
23
offers a clearer basis for delineating the reach of Congress’s
power.
A
The most ambitious defense of Congress’s power here denies
that there must be connections among discrete activities for
those activities to be aggregated. Lopez, on this view,
announces a sort of proximate cause test, permitting regulation
of activities that when aggregated have an effect on commerce
that is perceptible without “pil[ing] inference upon inference.”
See, e.g., Deborah Jones Merritt, Commerce!, 94 Mich. L. Rev.
674, 679 (1995) (arguing that Lopez can be read as shifting
Commerce Clause jurisprudence from a purely quantitative test to
a more qualitative one). The connection between guns in schools
and commerce can be perceived only through the series of
inferences that Justice Breyer offered.
We do not claim that this is an unsupportable reading of
Lopez. Certainly, the Court was concerned with connections
between activities and commerce that seem too attenuated, and the
Lopez Court, see 514 U.S. at 566, quoted its earlier remark in
Jones & Laughlin Steel, 301 U.S. 1, 37 (1937), that congressional
power under the Commerce Clause “is necessarily one of degree.”
We think the interpretation has trouble making sense of the
Supreme Court’s signal that courts will need to distinguish
between commercial and noncommercial activity. In the end,
though, we agree that when the Supreme Court has not explicitly
24
announced a test, finding majestic pronouncements in a sentence
or two of its arguments has the earmark of a Rudyard Kipling
“just so” story.
Our concern about this approach is that it is not a line or
a test. At best it is descriptive of an outcome that lacks an
identifying supporting principle. Any contrary suggestion is an
illusion. A domestic homicide can be made a federal crime any
time the victim is a wage earner. Battery within five hundred
yards of a store doing business in interstate commerce also might
be regulated. Perhaps even adultery in a hotel room rented in
interstate commerce could be made a federal crime. A court might
find that these go too far, the connection too attenuated. But
we cannot be sure why beyond the conclusion that they “know it
when they see it.”
Indeed, the approach is so ill-defined that it is not even
clear that it should allow prosecution of the robberies here.
Such robberies have been prosecuted under the depletion-of-assets
theory, the notion that robbery victims will have less money with
which to make purchases in interstate commerce. This effect,
while not absurd, is at best probabilistic, and victims without
severe liquidity problems might well write off the loss and buy
as before.
There is another problem. The proximate cause approach
applies its limits after aggregation. This seems to imply that
anything can be aggregated. Can all crimes of violence be
25
aggregated together? How about all crimes? It takes no leap, no
inference upon inference, to conclude that crime as a whole has a
substantial effect on commerce. Surely such an approach does not
give Congress the right to regulate all crime. But what is magic
about robberies that allows all of them to be lumped together,
rather than grouped into subclasses depending on any of a number
of variables? A proximate cause approach ultimately needs to be
supplemented by some test limiting the scope of what can be
aggregated.
Proximate cause is an appropriate creature for tort law.
Because legislatures and judges cannot precisely define the
contours of liability, we leave it to juries to supply common
sense to vague legal standards, with occasional judicial
intervention. What works for torts does not necessarily work for
constitutional law. If we leave proximate cause determinations
to Congress, then it will be able to find some justification for
virtually any legislation. And if we leave such determinations
to courts, then we can give little advance guidance to Congress.
With any rule, of course, some case-by-case interpretation is
inevitable. But some tests are clearer than others.
B
Another argument that would find federal prosecution of
local robberies reachable under the Commerce Clause appears in
United States v. Harrington, 108 F.3d 1460 (D.C. Cir. 1997), and
again in United States v. Farrish, 122 F.3d 146 (2d Cir. 1997).
26
The argument avoids the puzzlement of aggregation, maintaining
that because the Hobbs Act has a jurisdictional element, any
concrete effect on interstate commerce is sufficient.
Where a statute has a jurisdictional element, this argument
maintains, “each case stands alone on its evidence that a
concrete and specific effect does exist, and we can find no
controlling authority suggesting that courts must require that,
as to each factual scenario, a ‘substantial’ rather than a
‘concrete’ effect on interstate commerce must be shown.”
Harrington, 108 F.3d at 1467. Indeed, the Lopez Court noted that
the Gun-Free School Zones Act “has no express jurisdictional
element which might limit its reach to a discrete set of firearm
possessions that . . . have an explicit connection with or effect
on interstate commerce,” 514 U.S. at 561, omitting the
requirement that the effect be “substantial.”
As a preliminary matter, we do not think scaling back to an
insubstantial but concrete effect could make a difference here.
The jury was allowed to convict based on any indirect effect on
commerce, and there was no evidence of any concrete effect. More
significantly, the Harrington conclusion that only a concrete
effect on commerce need be shown mistakes the Supreme Court’s
failure to mouth “substantial” repeatedly as a subtle limitation
on the holding. The Court explicitly held that “the proper test
requires an analysis of whether the regulated activity
27
‘substantially affects’ interstate commerce,” Lopez, 514 U.S. at
559, without mentioning the aggregation principle.
Indeed, this approach threatens to reintroduce the
discredited direct-indirect distinction into Commerce Clause
jurisprudence, albeit in a new guise. It would allow direct
effects that are not substantial, while requiring indirect
effects to be substantial. A pickpocket who steals a subway
token, causing his victim to walk home, could potentially be
federally prosecuted, while someone who lifts $100 from an owner
too rich to change his spending patterns as a result could not.
There is no reason to think the Supreme Court intended anything
of the kind.
A jurisdictional element by itself cannot save a statute
that exceeds congressional authority. The jurisdictional element
must in some way be meaningful, and the Supreme Court has
specified a condition for meaningfulness in its substantial
effects test. The Court noted that Ҥ 922(q) has no express
jurisdictional element which might limit its reach,” id. at 562
(emphasis added), but never stated that any jurisdictional
element with the words “affecting commerce” would succeed in
limiting its reach adequately.
C
We also reject the suggestion of the government that the
convictions can be upheld based on the second of the three
categories identified in Lopez, the power “to regulate and protect
28
the instrumentalities of interstate commerce, or persons or things
in interstate commerce, even though the threat may come only from
intrastate activities.” 514 U.S. at 558. The government’s theory
is that the victims were “in interstate commerce” because they
purchased inventory and supplies from outside Texas. We view this
category as encompassing only vehicles that move or could move in
interstate commerce and people or goods traveling in commerce. See
id. at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914);
Southern R. Co. v. United States, 222 U.S. 20 (1911)).
The United States maintains that United States v. Robertson,
514 U.S. 669 (1995) (per curiam), decided just days after Lopez,
supports its analysis. Robertson involved the illegal investment
of narcotics proceeds, and both investment and narcotics
trafficking are undoubtedly economic. The Court held, however,
that it did not need to consider the “affecting commerce”
jurisprudence because the commercial activities Robertson was
engaged in were themselves interstate activities. See id. at 671.
Instead, the Court concluded that Robertson had “engaged in
commerce” within the meaning of 18 U.S.C. § 1962(a). But this
conclusion does not mean that Robertson is a category two case.
Whether one is “engaged in commerce” under a statute is different
from whether one is “in commerce” for constitutional purposes.
Even if the Court’s references to its Commerce Clause
jurisprudence mean that Robertson is to be seen as offering an
implicit constitutional holding, this holding is better interpreted
29
as reaffirming the first category of Lopez, the power to “regulate
the use of the channels of interstate commerce,” 514 U.S. at 558,
than as dramatically expanding the second. The Court offered
several examples of how Robertson conducted activities using the
channels of interstate commerce. For example, “[O]n more than one
occasion, Robertson sought workers from out of state and brought
them to Alaska to work in the mine.” 514 U.S. at 671. Moreover, the
activity that violated the statute was an investment of money in
one state for equipment that was transported to another state. See
id. at 670.
D
Category one, which the government does not press, also does
not apply in this case. The strongest argument for application of
this category is that the government may prosecute someone for
“receiv[ing] . . . in commerce or affecting commerce” a firearm “if
it demonstrates that the firearm received has previously traveled
in interstate commerce.” Bass, 404 U.S. at 350; United States v.
Scarborough, 431 U.S. 563 (1977). These cases, however, are also
exercises in statutory, not constitutional, interpretation.
There is anyway a difference between banning possession of an
item that has traveled in commerce and protecting a person or
business that purchases items in interstate commerce. While we
need not here develop a test for category one, it suffices to note
that if the latter nexus were enough, then Congress could regulate
the activities, say, of people wearing clothes purchased in
30
interstate commerce. Category one, as expressed in Lopez, notably
does not entitle Congress to protect or otherwise regulate those
who from time to time use the channels of commerce, and we see no
reason to read it so broadly.
E
We also would reject a rule that would allow Congress to have
its way, as long as it made sufficient legislative findings that
certain conduct affected commerce. The Supreme Court mentioned the
absence of legislative findings in the Gun-Free School Zones Act.
See Lopez, 514 U.S. at 562-63. But it did not promise that any
such findings of “substantial effect” would immunize legislation
from judicial scrutiny. It merely indicated that findings might
make a difference “to the extent that [they] would enable us to
evaluate the legislative judgment that the activity in question
substantially affected interstate commerce, even though no such
substantial effect was visible to the naked eye.” Id. at 563
(emphasis added). See also id. at 612-13 (Souter, J., dissenting)
(“The question for the courts, as all agree, is not whether as a
predicate to legislation Congress in fact found that a particular
activity substantially affects interstate commerce.”). Lopez tell
us that the Commerce Clause is not a political question wholly
committed to congressional discretion and that although
legislative findings are a useful prelude to a constitutional
analysis, at some point constitutional doctrine must take over.
IV
31
The government parades horribles, listing statutes that it
asserts would fall with our insistence upon rationality in
aggregation, from the federal arson statute, 18 U.S.C. § 844(I), to
the federal gambling statute, 18 U.S.C. § 1955; from the federal
money laundering statute, 18 U.S.C. § 1956, to the federal
carjacking statute, 18 U.S.C. § 2119; from the felon-in-possession
statute, 18 U.S.C. § 922(g)(1), to the federal machine-gun statute,
18 U.S.C. § 922(o). We disagree. Typical prosecutions for these
statutes are justifiable either under our test or under one of the
other branches of the commerce power. But in the Hobbs Act,
Congress has not identified, and probably cannot find, any rational
basis for aggregation that would entitle the federal government to
prosecute purely local robberies. In demanding that Congress
accommodate the qualitative principle of our federalism that local
crime be left to the states, we do no more today than insist that
Congress identify a non-pretextual, rational basis for concluding
that there are sufficient interactive effects among activities to
allow them to be aggregated. Lopez says there is a line. Today
we must draw that line.
Until recently, fifty years of judicial deference committed to
the political branches the power to define the limits of their
power under the Commerce Clause. To be sure, the judiciary has
occasionally claimed a role, but its grasp on each occasion has
slipped away. See, e.g., National League of Cities v. Usery, 426
U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit
32
Auth., 469 U.S. 528 (1985). Even today, the government in effect
says that the power of Congress is what Congress and the President
say it is, subject only to the most vague and thin constraints.
This judicial repair to the sidelines has left Congress to
police itself. With the increased federalization of traditional
state crimes, the consequence of this acquiescence of the judiciary
looms large. Not surprisingly, the increased overlapping of
traditional state criminal statutes taxes the institution of
Article III courts.
That the federal courts were created as courts of limited
jurisdiction is no historical happenstance, some quirk of Article
III without reflection elsewhere in the Constitution. Rather,
their limited jurisdiction, set against the general jurisdiction of
state courts, is integral to our federalism. It is in state courts
that the overwhelming percentage of all litigation has always been
conducted. Federal courts cannot play their vital historical role
if they are to be cast as major criminal courts, trying the
robberies, murders, assaults, and extortion historically the
province of the states. And reading (or not reading) the Commerce
Clause to support without locatable limits federal jurisdictional
overlap of these traditional state crimes inevitably breeds
federalization – checked only by the self-restraint of Congress,
here conspicuously absent. That crime is a serious social concern
does not mean that it is by that circumstance a federal matter.
33
Resisting this vertical movement from state to federal courts
in no way steps upon the congressional role in defining the
jurisdiction of federal courts, a role hammered from the Madisonian
Compromise. By design, Congress may expand and contract diversity
and federal question jurisdiction, and for the rawest of political
reasons. The Founders concerned about the vitality of state courts
could be confident in allowing Congress to define jurisdiction
because they knew that the organic external constraints of Article
I would cabin legislation and protect state courts. The problem
has not proved to be with the power of Congress to define the grant
to federal courts of federal question jurisdiction. Rather, it is
the absence of judicially enforceable limits upon the power of
Congress under the Commerce Clause to inject a federal question
into traditional bodies of state criminal law.
The ad hoc and random use of the Hobbs Act to prosecute local
robberies masks the dramatic reach of federal power required to
sustain them. The full force of the government’s assertion of
authority, and the irrationality of the summing of effects
undergirding it, is unmasked by the reality that if this
application of the Act were sustained, Congress could also grant
exclusive federal jurisdiction to all prosecution reachable by the
Act – by adding a single line. And by the government’s reasoning,
that includes virtually all robberies. We need not judge the
extent to which the commerce power remains yet a nigh political
question to conclude that rationality remains a gate to the
34
exercise of congressional power even if its authority be limited by
no more than its free political will.
We would reverse the Hobbs Act convictions.
35
DeMOSS, Circuit Judge, specially dissenting:
I join Judge Higginbotham’s dissenting opinion. He has heeded
the mandate of the Supreme Court in Lopez, and has undertaken the
arduous task of demarcating the “outer limits” of federal power, of
distinguishing between “what is truly national and what is truly
local.” United States v. Lopez, 514 U.S. 549, 566-68 (1995). The
interaction principle espoused in Judge Higginbotham’s opinion is
a much needed step toward injecting some measure of rationality
into that process.
I write separately, however, because the present debate over
the Hobbs Act extends well beyond the issue of whether the
robberies in this case may, as a conceptual matter, be aggregated
as a class. Aggregation is an important aspect of this case, to be
sure. But the truly determinative question, one which I fear may
be lost in the abstract debate over aggregation, interaction,
causal interdependence, and the like, is whether the conduct in
this case “substantially affects interstate commerce.” It is that
standard, after all, which is our constitutional touchstone, and
which should ultimately control the outcome of this case. Id. at
560.
In the past several years I have written at length as to why
local robberies of the present sort do not “substantially affect
interstate commerce.” United States v. Hebert, 131 F.3d 514 (5th
Cir. 1997) (DeMoss, J., dissenting in part); United States v.
Miles, 122 F.3d 235 (5th Cir. 1997) (DeMoss, J., specially
concurring). And the reasons I have offered bear repeating.
In determining whether a class of activities substantially
affects interstate commerce, we of course look to the legislative
record for evidence of congressional findings of such an effect.
Judge Higginbotham states in his dissent that Congress did not
identify the market it wished to protect by passing the Hobbs Act.
United States v. Hickman, ___ F.3d ___, ___ (5th Cir. 1999)
(Higginbotham, J., dissenting). But I beg to differ. The
legislative history of the Hobbs Act is replete with evidence that
Congress passed the statute to combat highway robberies by labor
union members which, at the rate of more than 1,000 per day, were
having a considerable impact on interstate commerce. Miles, 122
F.3d at 244 (DeMoss, J. dissenting). However, nothing in the
legislative history of the Hobbs Act indicates that Congress was
concerned with local robberies of retail establishments. There is
absolutely no legislative history suggesting that retail robberies
were having a substantial effect on interstate commerce.
Consequently, there is simply no rational basis for concluding that
Congress found that local robberies of retail stores, whether
aggregated or not, have a substantial affect on interstate
commerce.
37
In the absence of legislative history supporting the extension
of the Hobbs Act to local robberies, we are left with the plain
language of the statute. As I have explained in previous cases, it
is clear from the wording of the statute that “commerce” refers to
intercourse between the states. Hebert, 131 F.3d at 528-239;
Miles, 122 F.3d at 245. Congress thus meant "commerce" in the
ordinary sense, the flow of goods and people across state lines.
It surely did not intend some metaphysical interpretation, where
the taking of money from a cash register or attendant’s purse
becomes magically transformed into an economic event that bears on
our national commerce.
Thus, while I join Judge Higginbotham’s dissent, I reiterate
my continuing belief that the applicability of the Hobbs Act should
be determined with these more basic principles.
g:\opin\97-40237.dis 38
United States v. Hickman
Court: Court of Appeals for the Fifth Circuit
Date filed: 1999-06-21
Citations: 179 F.3d 230
Copy CitationsCombined Opinion