[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 10, 2005
Nos. 01-14872 and 01-15080
THOMAS K. KAHN
________________________ CLERK
D. C. Docket Nos. 99-00026-CR-01-2
and 01-00032-CR-01-2-WCO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAY SCOTT BALLINGER,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(January 10, 2005)
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR
and HILL *, Circuit Judges.
*
Honorable James C. Hill, elected to participate in this decision pursuant to 28 U.S.C.
§46(c).
MARCUS, Circuit Judge:
Jay Scott Ballinger appeals his convictions for five counts of destruction of
religious property on account of their religious character, in violation of 18 U.S.C.
§ 247. Ballinger claims that § 247 is an unconstitutional exercise of Congress’
commerce power, both facially and as applied to his offenses. Moreover, he argues
that § 247 does not, by its express terms, reach his conduct, which involved
traveling by car on the interstate highways and crossing the borders of four states
for the purpose of burning churches. After reviewing the substance of Congress’
commerce power, we have little trouble concluding that § 247, both facially and as
applied to Ballinger, is a constitutional expression of Congress’ well-established
power to regulate the channels and instrumentalities of interstate commerce in
order to prevent their use for harmful purposes. Furthermore, the well-settled
meaning of the “in commerce” jurisdictional language employed by Congress in §
247 leads us to conclude that Ballinger’s conduct falls squarely within the scope of
the statute. Accordingly, we affirm.
I.
A.
On April 20, 1999, a federal grand jury in the Northern District of Georgia
returned an indictment charging Jay Scott Ballinger with three counts of
2
intentionally destroying religious property, in violation of 18 U.S.C. § 247, and
three counts of using fire to commit those offenses, in violation of 18 U.S.C. §
844(h). One month later, on May 20, 1999, a federal grand jury in the Middle
District of Georgia indicted Ballinger on two additional counts of intentionally
destroying religious property, in violation of 18 U.S.C. § 247, and two additional
counts of using fire to commit those offenses, in violation of 18 U.S. C. § 844(h).
On December 14, 2000, Ballinger moved to dismiss the indictment in the Northern
District of Georgia on the ground that the alleged offenses lacked a sufficient
nexus with interstate commerce, and the United States Magistrate Judge
recommended that the motion be denied.
Four months later, Ballinger entered a negotiated guilty plea in the United
States District Court for the Northern District of Georgia. Ballinger pled guilty to
the three counts of intentionally destroying religious property in violation of 18
U.S.C. § 247 charged in the Northern District of Georgia, and, pursuant to Federal
Rule of Criminal Procedure 20, he pled guilty to the two counts of violating § 247
charged in the Middle District of Georgia. As part of the plea agreement, Ballinger
expressly preserved “the right to appeal the constitutionality of § 247 under the
Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, both on its face and as applied to
him.” The magistrate judge recommended that the district court accept Ballinger’s
3
guilty plea, and in an order issued July 13, 2001, the district court approved and
adopted the magistrate’s Report and Recommendation in its entirety, concluding
that § 247 was constitutional both facially and as applied. Thereafter, the district
court sentenced Ballinger to life imprisonment on the count of violating § 247 that
had resulted in the death of a volunteer firefighter who fought the blaze at one of
the burned churches, and to 240 months’ imprisonment, to run concurrently, on
each of the four remaining counts.
Ballinger appealed on Commerce Clause grounds, and a divided panel of
this Court reversed his convictions. The panel held that although § 247 was a
constitutional exercise of the commerce power, Ballinger’s conduct did not fall
within the ambit of the statute. United States v. Ballinger, 312 F.3d 1264, 1276
(11th Cir. 2002). On May 12, 2004, this Court vacated the panel opinion and
directed that the case be heard en banc. United States v. Ballinger, 369 F.3d 1238
(11th Cir. 2004) (en banc).
B.
The parties to this case stipulated to the following essential facts 1 as part of
the negotiated plea agreement. Ballinger is a practicing “Luciferian,” and considers
1
We do not summarize a substantial body of stipulated facts regarding the burned
churches’ involvement in commerce because we have no occasion today to reach the issue of
whether the churches engaged in or otherwise substantially affected interstate commerce.
4
himself a missionary of Lucifer. He has expressed hostility toward organized
Christianity, and describes the burning of churches as his “work” and his
“business.”
In December 1998, Ballinger and his girlfriend, Angela Wood, left Indiana
in Ballinger’s Indiana-registered van, partly out of concern about a call to
Ballinger’s parents’ Indiana home by an FBI agent. Ballinger and Wood traveled
in Ballinger’s van to Georgia, passing through Kentucky and Tennessee, and using
interstate highways, purchasing gasoline and other goods, and staying in hotels all
along the way. On the way to Georgia, Ballinger deliberately set fire to three
churches in three states: the Mt. Eden Christian Church in Scottsburg, Indiana, on
or about December 20, 1998; the Bolton Schoolhouse Missionary Baptist Church
in Bonnieville, Kentucky, on or about December 21, 1998; and the Little Hurricane
Primitive Baptist Church in Manchester, Tennessee, on or about December 22,
1998.
Ballinger arrived in Dalton, Georgia on December 22, 1998, and checked
into the Best Inns of America Hotel. At 7:10 p.m., he used his Indiana Visa card to
purchase a plastic gas can from the Dalton K-Mart store. At approximately 1:30
a.m. on December 23, 1998, Ballinger drove his van to the Amazing Grace Baptist
Church, broke a church window using a tool he had brought from Indiana, poured
5
gasoline into the broken window, and set fire to the church with a cigarette lighter.
The fire completely destroyed the Amazing Grace Baptist Church. After setting
that fire, Ballinger drove his van back to the Dalton Best Inns of America Hotel,
where he spent the night.
The following night, Ballinger drove his van to the Mountain View Baptist
church and deliberately burned its fellowship hall at approximately 1:09 a.m. on
December 24, 1998. Again, Ballinger used a tool from his van to break a window,
poured gasoline into the broken window, and set fire to the church, before driving
away. The fire badly damaged the church’s fellowship hall.
Ballinger and Wood checked out of the Dalton Best Inns of America Hotel
and drove Ballinger’s van to the Athens, Georgia area, where they checked into the
Perimeter Inn on December 26, 1998. Along the way, Ballinger drove to the
Sardis Full Gospel Church in Walton County and burned its fellowship hall, too, at
approximately 12:53 a.m. on December 25, 1998, utterly destroying the building.
Again, Ballinger started the fire by breaking a church window and pouring in
gasoline. Ballinger then stayed at the Perimeter Inn in Athens until January 16,
1999. During his stay, shortly before 9:15 a.m. on December 31, 1998, Ballinger
drove his van to the New Salem United Methodist Church in Banks County,
Georgia. Again, he broke a window using a tool from his van, poured in gasoline,
6
and set fire to the church. Before destroying the church completely, the fire caused
the roof to collapse, killing volunteer firefighter Loy Williams and injuring three
other volunteer firefighters.
Ballinger returned to the Perimeter Inn, where he stayed until approximately
11:30 p.m., when he drove to the Johnson United Methodist Church in Oconee
County, Georgia. Once again, Ballinger used a tool from his van to break a church
window, poured in gasoline, and set fire to the church, before driving back to his
hotel. The fire badly damaged the church.
Ballinger checked out of the Perimeter Inn on January 16, 1999, and drove
his van back to Indiana. Again he used the interstate highways, purchased gasoline
and other goods, and stayed in hotels throughout the trip. Along the way back, he
set fire to three more churches: the Cedar Grove Baptist Church in Franklin,
Kentucky, on January 17, 1999; the Pleasant Hill Methodist Church in Elkton,
Kentucky, on January 17-18; and the New Harmony Baptist Church in Beaver
Dam, Kentucky, on January 18, 1999. During his travels, Ballinger crossed
interstate borders six times, traveling from Indiana into Kentucky, from Kentucky
into Tennessee, from Tennessee into Georgia, and then from Georgia back to
Tennessee, then Kentucky, and finally Indiana. He burned a total of eleven
churches during the course of this single arson spree.
7
II.
Ballinger was convicted under Title 18 U.S.C. § 247, which provides in
relevant part:
(a) Whoever, in any of the circumstances referred to in subsection (b) of
this section--
(1) intentionally defaces, damages, or destroys any religious real
property, because of the religious character of that property, or
attempts to do so; or
(2) intentionally obstructs, by force or threat of force, any person in
the enjoyment of that person's free exercise of religious beliefs,
or attempts to do so;
shall be punished as provided in subsection (d).
(b) The circumstances referred to in subsection (a) are that the offense is
in or affects interstate or foreign commerce.
We understand Ballinger as having made three separate, though overlapping
arguments for overturning his convictions under § 247. First, Ballinger says that §
247 is facially unconstitutional -- that is, under no circumstances does Congress
have the commerce power to proscribe the intentional destruction of religious
property in or affecting commerce. Second, Ballinger claims that § 247 is
unconstitutional as applied to his conduct -- that is, even if Congress has the power
to reach some offenses, it is not empowered to reach conduct like Ballinger’s.2
2
Although Ballinger purports to be making a facial as well as an as-applied challenge,
see, e.g., Appellant’s Panel Br. at 17, we read him as making the latter more than the former.
For one thing, the Appellant described to the en banc Court at oral argument types of conduct
that he believed would fall within the permissible scope of the statute, a position wholly
inconsistent with facial unconstitutionality. See United States v. Salerno, 481 U.S. 739, 745, 107
S. Ct. 2095, 95 L. Ed. 2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the
8
Finally, the argument that Ballinger has cast as an as-applied challenge to the
constitutionality of § 247 seems really to raise a question of statutory construction -
- namely, whether, by its specific terms, § 247 covers Ballinger’s conduct. The
substance of the argument is that “there was insufficient evidence to show that the
offenses in this case were ‘in or affecting commerce,’” Appellant’s Panel Br. at 16,
raising the issue of whether the statutory language contemplates offenses like
Ballinger’s. The first two questions are easily resolved, and we address them at the
outset; the third is more involved, and is at the heart of this case.
A.
We review the constitutionality of a statute de novo. United States v. Scott,
263 F.3d 1270, 1271 (11th Cir. 2001). To determine whether § 247 is a valid
exercise of Congress’ commerce power, we begin with an overview of the nature
of that power. Article I, § 8 of the United States Constitution provides that “The
Congress shall have the Power . . . To regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8,
cls. 1 & 3.
most difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.”). Moreover, the Appellant’s brief to
the panel in fact argued that “[t]he ‘offense’ of burning a religious structure can ‘affect interstate
commerce’ only if the structure is in that same commerce,” Appellant’s Panel Br. at 44, again
suggesting that there are, indeed, some church burnings that § 247 may constitutionally reach.
9
The Supreme Court’s landmark decision in United States v. Lopez, 514 U.S.
549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), which issued shortly before
Congress amended § 247 in 1996, synthesized more than a century of Commerce
Clause activity into a definitive description of the commerce power. In Lopez, the
Court addressed the constitutionality of the Gun-Free School Zones Act of 1990,
18 U.S.C. § 922(q) (1988 ed., Supp. V), which prohibited possession of a firearm
within a thousand feet of a school. Because the statute criminalized intrastate
conduct without including any jurisdictional hook to “ensure, through case-by-case
inquiry, that the firearm possession in question affects interstate commerce,”
Lopez, 514 U.S. at 561, the Court found that it exceeded the scope of Congress’
commerce power. In reaching this conclusion, Chief Justice Rehnquist, writing for
the Court, laid out “three broad categories of activity that Congress may regulate
under its commerce power”: “First, Congress may regulate the use of the channels
of interstate commerce. 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.
Finally, Congress’ commerce authority 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 (citations omitted); see
10
also, e.g., United States v. Morrison, 529 U.S. 598, 608-09, 120 S. Ct. 1740, 146 L.
Ed. 2d 658 (2000) (reiterating these categories); Scott, 263 F.3d at 1271-72
(reiterating the Lopez categories).
Channels of commerce are “the interstate transportation routes through
which persons and goods move.” Morrison, 529 U.S. at 613 n.5 (quoting United
States v. Lankford, 196 F.3d 563, 571-572 (5th Cir. 1999)). These channels
include highways,3 see, e.g., Pierce County v. Guillen, 537 U.S. 129, 147, 123 S.
Ct. 720, 154 L. Ed. 2d 610 (2003); United States v. Pappadopoulos, 64 F.3d 522,
527 (9th Cir. 1995); United States v. New Buffalo Amusement Corp., 600 F.2d
368, 391 n.4 (2d Cir. 1979), railroads, navigable waters, and airspace, see, e.g.,
Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 516-18, 61 S. Ct.
1050, 85 L. Ed. 1487 (1941); Escanaba & Lake Mich. Transp. Co. v. City of
Chicago, 107 U.S. 678, 682, 17 Otto 678, 2 S. Ct. 185, 27 L. Ed. 442 (1883);
United States v. Ho, 311 F.3d 589, 597 (5th Cir. 2002); Ickes v. FAA, 299 F.3d
3
We characterize highways as channels of commerce, since they are routes for the
interstate transportation of people and goods. However, it bears noting that roads resemble
instrumentalities of commerce in certain respects as well (for example, unlike oceans and
airways, they are artificially constructed and -- albeit at some cost -- moveable); thus, the
Supreme Court has variously labeled highways both as channels and as instrumentalities.
Compare Pierce County, 537 U.S. at 147 (channels); and Oklahoma ex rel. Phillips, 313 U.S. at
518 (channels), with Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 197, 95 S. Ct. 392, 42 L.
Ed.2 d 378 (1974) (instrumentalities); Alstate Const. Co. v. Durkin, 345 U.S. 13, 16, 73 S. Ct.
565, 97 L. Ed. 745 (1953) (instrumentalities); Overstreet v. N. Shore Corp, 318 U.S. 125, 129-
30, 63 S. Ct. 494, 87 L. Ed. 656 (1943) (instrumentalities); and Monongahela Navigation Co. v.
United States, 148 U.S. 312, 342, 13 S. Ct. 622, 37 L. Ed. 463 (1893) (instrumentalities).
11
260, 263 (3d Cir. 2002); Gibbs v. Babbitt, 214 F.3d 483, 490-91 (4th Cir. 2000), as
well as telecommunications networks, see, e.g., Ho, 311 F.3d at 597; Gibbs, 214
F.3d at 490-91, and national securities markets, see, e.g., Riley v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 292 F.3d 1334, 1347 (11th Cir. 2002).
Instrumentalities of interstate commerce, by contrast, are the people and
things themselves moving in commerce, including automobiles, airplanes, boats,
and shipments of goods. See, e.g., Perez v. United States, 402 U.S. 146, 150, 91 S.
Ct. 1357, 28 L. Ed. 2d 686 (1971); United States v. Hickman, 179 F.3d 230, 232
(5th Cir. 1999); United States v. Cobb, 144 F.3d 319, 322 (4th Cir. 1998); United
States v. McHenry, 97 F.3d 125, 126 (6th Cir. 1996); United States v. Bishop, 66
F.3d 569, 588 (3d Cir. 1995); United States v. Oliver, 60 F.3d 547, 550 (9th Cir.
1995). Instrumentalities of commerce include, as well, “pagers, telephones, and
mobile phones.” United States v. Pipkins, 378 F.3d 1281, 1295 (11th Cir. 2004).
Plainly, congressional power to regulate the channels and instrumentalities
of commerce includes the power to prohibit their use for harmful purposes, even if
the targeted harm itself occurs outside the flow of commerce and is purely local in
nature. See, e.g., Lopez, 514 U.S. at 558-59; Brooks v. United States, 267 U.S.
432, 436, 45 S. Ct. 345, 69 L. Ed. 699 (1925) (“Congress can certainly regulate
interstate commerce to the extent of forbidding and punishing the use of such
12
commerce as an agency to promote immorality, dishonesty, or the spread of any
evil or harm to the people of other states from the state of origin.”); Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S. Ct. 348, 13 L. Ed. 2d
258 (1964) (“[T]he authority of Congress to keep the channels of interstate
commerce free from immoral and injurious uses has been frequently sustained, and
is no longer open to question.” (quoting Caminetti v. United States, 242 U.S. 470,
491, 37 S. Ct. 192, 61 L. Ed. 442 (1917))). Congress has repeatedly used this
power to reach criminal conduct in which the illegal acts ultimately occur
intrastate, when the perpetrator uses the channels or instrumentalities of interstate
commerce to facilitate their commission. Title 18 U.S.C. § 1952, for example,
reaches a broad range of purely intrastate criminal conduct -- including extortion,
bribery, drug distribution, prostitution, and, indeed, arson -- when the offender
travels in or uses the facilities of interstate commerce. See 18 U.S.C. § 1952(a)-
(b); see also, e.g., 18 U.S.C. § 1951 (prohibiting robbery and extortion that “in any
way or degree obstructs, delays, or affects commerce”); 18 U.S.C. § 1958
(prohibiting travel in or the use of any facility of interstate commerce to commit
murder for hire).
Congress’ power to regulate activities that “affect” commerce enables it to
reach wholly intrastate conduct -- that is, conduct that utilizes neither the channels
13
nor the instrumentalities of interstate commerce -- but only when it has “a
substantial relation to” (meaning it “substantially affect[s]”) interstate commerce.
Lopez, 514 U.S. at 558-59. This third Lopez prong is the broadest expression of
Congress’ commerce power. See, e.g., Mandeville Island Farms, Inc. v. Am.
Crystal Sugar Co., 334 U.S. 219, 232 & n.11, 68 S. Ct. 996, 92 L. Ed. 1328 (1948).
B.
The constitutional issue this case raises is whether the Commerce Clause,
found in Article I, § 8, clauses 1 and 3 of the United States Constitution, permits
Congress to proscribe the conduct of an arsonist who travels by car on the
interstate highways through four states, apparently for no other purpose than to
burn churches to the ground. We need not and do not reach the question of
whether § 247 constitutes a permissible regulation under the third Lopez prong of
activity affecting commerce,4 since the statute falls squarely within Congress’
power under the first two Lopez prongs to regulate the channels and
instrumentalities of commerce. Ballinger set fire to at least eleven churches in four
states during the course of his interstate arson spree. This is precisely the sort of
4
Accordingly, we offer no opinion as to whether the church burnings in this case affected
interstate commerce, either because the churches were engaged in commerce prior to their
destruction or because their activities were sufficiently interstate in nature that they otherwise
substantially affected interstate commerce. Moreover, we need not and do not address the
question -- briefed to the en banc Court by both parties -- of whether any effects the church
burnings might have on commerce may be aggregated for purposes of the Lopez analysis.
14
conduct that may be regulated under Congress’ well-established power to forbid or
punish the use of the channels and instrumentalities of interstate commerce “to
promote . . . the spread of any evil or harm to the people of other states from the
state of origin.” Brooks, 267 U.S. at 436. The Commerce Clause contemplates
congressional efforts “to keep the channels of interstate commerce free from
immoral and injurious uses.” Heart of Atlanta, 379 U.S. at 256 (quoting Caminetti,
242 U.S. at 491). Surely, utilizing the channels and instrumentalities of commerce
to facilitate a prolonged, multistate church-burning spree qualifies as an “injurious
use” that Congress may proscribe pursuant to its commerce power.
The Appellant argues, nevertheless, that Congress’ power over the channels
and instrumentalities of commerce authorizes it to proscribe only those harmful
activities whose ultimate actus reus occurs within a channel of commerce, see
Appellant’s Panel Br. at 38-40, or constitutes an attack on an instrumentality of
commerce, see id. at 29-30, 35-38. Ballinger says that Congress’ power to regulate
the channels of commerce does not authorize it to regulate “an activity that merely
implicates or invokes the use of the channels of commerce,” id. at 39; arson, the
argument continues, is an act consummated outside the channels of commerce, and
thus beyond the reach of the commerce power. Nor, the Appellant asserts, does
Congress’ power to regulate the instrumentalities of commerce authorize § 247,
15
because the statute regulates church buildings, which do not themselves constitute
instrumentalities of commerce. Id. at 29-30.
These arguments misconceive the nature of Congress’ commerce authority.
The commerce power has always been construed by the Supreme Court to include
the power to prohibit the use of the channels or instrumentalities of interstate
commerce “to promote immorality, dishonesty, or the spread of any evil or harm to
the people of other states from the state or origin.” Brooks, 267 U.S. at 436
(emphasis added). An act that promotes harm, not the harm itself, is all that must
occur in commerce to permit congressional regulation. In fact, it is a “well-settled
principle that Congress may impose relevant conditions and requirements on those
who use the channels of interstate commerce in order that those channels will not
become the means of promoting or spreading evil, whether of a physical, moral or
economic nature.” United States v. Orito, 413 U.S. 139, 144, 93 S. Ct. 2674, 37 L.
Ed. 2d 513 (1973) (quoting N. Am. Co. v. SEC, 327 U.S. 686, 705, 66 S. Ct. 785,
90 L. Ed. 945 (1946)) (emphasis added); see also Am. Power & Light Co. v. SEC,
329 U.S. 90, 99, 67 S. Ct. 133, 91 L. Ed. 103 (1946) (emphasis added); Ky. Whip
& Collar Co. v. Ill. Cent. R.R. Co., 299 U.S. 334, 347, 57 S. Ct. 277, 81 L. Ed. 270
(1937) (“The anticipated evil or harm may proceed from something inherent in the
subject of transportation as in the case of diseased or noxious articles, which are
16
unfit for commerce. Or the evil may lie in the purpose of the transportation, as in
the case of lottery tickets, or the transportation of women for immoral purposes.”
(emphasis added)).
These precedents leave no doubt that the commerce power contemplates
congressional regulation of the channels and instrumentalities of commerce in
order to prevent their use to facilitate harmful acts, which may be consummated --
and whose effects ultimately may be felt -- outside the flow of commerce. In
enacting § 247, Congress was attempting to do just that -- to prevent what it
characterized as the evil of church burnings, which had become a national
epidemic, from spreading from state to state through the channels and
instrumentalities of interstate commerce. See H.R. Rep. No. 104-621, at 2,
reprinted in 1996 U.S.C.C.A.N. 1082, 1083.
Congress acted well within the bounds of its commerce power when it
enacted legislation to prevent conduct like Ballinger’s, which entailed weeks of
travel in a van (an instrumentality of commerce) along interstate highways (a
channel of commerce) and at least six separate interstate border crossings, all for
the specific purpose of spreading the evil of church burning through four different
states. As the dissent from the earlier panel opinion put it: “Ballinger’s actions
placed him squarely within the bounds of Congress’s power to regulate because he
17
used interstate commerce as an agency to promote criminal acts of arson. In
addition to the obvious fact that it was necessary for him to travel across state lines
in order to commit arson in Georgia (as well as Tennessee and Kentucky), the
immediacy with which he set out to destroy churches once he arrived and the
absence of any indication that he had other business in Georgia demonstrate that he
used the channels of interstate commerce for the purpose of committing arson.”
Ballinger, 312 F.3d at 1278 (Hall, J., dissenting).5
5
Contrary to the suggestion in Judge Birch’s dissent, the question before us is not whether
Congress has the power to proscribe purely intrastate acts of arson. The statute that Judge Birch
would condemn as an unconstitutional intrusion on state authority is not a flat proscription on
church arson. Rather, § 247 contains an explicit requirement of an appropriate nexus with
interstate commerce, so that church arson may be prosecuted only when “the offense is in or
affects interstate or foreign commerce.” § 247(b). Chief Justice Rehnquist, writing for the Court
in Lopez, made it abundantly clear that a federal criminal statute that contains “an express
jurisdictional element” capable of “limit[ing] its reach to a discrete set of [offenses] that
additionally have an explicit connection with or effect on interstate commerce” is substantially
different from a statute that contains no such jurisdictional element, and must be treated
differently. See Lopez, 514 U.S. at 561 (contrasting the statute at issue in that case, which
contained no jurisdictional element, with the statute at issue in United States v. Bass, 404 U.S.
336, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971), which did have such a component). When a statute
expressly requires that the proscribed conduct have an appropriate nexus with interstate
commerce, courts can “ensure, through case-by-case inquiry,” that each application of the statute
is constitutional, and thus the statute should not be struck down as being facially
unconstitutional. See id. (observing that the Bass Court appropriately “set aside the [firearm
possession] conviction because . . . the Government . . . had failed ‘to show the requisite nexus
with interstate commerce,’” and thereby “interpreted the statute to reserve the constitutional
question whether Congress could regulate, without more, the ‘mere possession’ of firearms”)
(citing United States v. Five Gambling Devices, 346 U.S. 441, 448, 74 S. Ct. 190, 98 L. Ed. 179
(1953) (plurality opinion) (“The principle is old and deeply imbedded in our jurisprudence that
this Court will construe a statute in a manner that requires decision of serious constitutional
questions only if the statutory language leaves no reasonable alternative.”)).
Congress drafted the amended § 247 to include, as an element of the statutorily defined
crime, the requirement that the offense occur in or affect commerce. To treat this statute as if it
contained no nexus to interstate commerce, but rather as if it simply proscribed wholly intrastate
18
Moreover, as the Appellant himself acknowledges, Congress has repeatedly
acted pursuant to its commerce power to regulate use of the channels and
instrumentalities of commerce to proscribe criminal conduct. Ballinger himself
cites numerous statutes that prohibit movement through the channels of commerce
and/or use of the instrumentalities of commerce for various purposes, including: 18
U.S.C. § 43 (to engage in animal enterprise terrorism); 18 U.S.C. § 228 (to avoid
paying child support); 18 U.S.C. § 1073 (to avoid prosecution); 18 U.S.C. § 1074
(to avoid prosecution for destroying property); 18 U.S.C. § 1231 (to engage in
strikebreaking); 18 U.S.C. § 1958 (to commit murder for hire); 18 U.S.C. § 2101
(to cause a riot); 18 U.S.C. § 2118 (to engage in robbery involving controlled
substances); 18 U.S.C. § 2261 (to commit domestic violence); 18 U.S.C. § 2261A
(to commit stalking); 18 U.S.C. § 2262 (to violate a domestic protective order); 18
U.S.C. § 2423 (to provide minors for sex). These statutes clearly illustrate
Congress’ power to punish offenders like Ballinger, who rely on the channels and
acts of church arson, would require us to ignore the explicit interstate commerce language
contained in the statute. If Congress had asserted its commerce power to proscribe church
burnings without requiring that the offenses occur in or affect interstate commerce, the resulting
legislation would have raised a substantial constitutional question. However, that question is not
present here since we cannot discard the jurisdictional language that Congress, mindful of
Lopez, employed for the express purpose of situating § 247 within the constitutional bounds of
its commerce power. See H.R. Rep. No. 104-621, at 7, reprinted in 1996 U.S.C.C.A.N. 1082,
1088. By giving proper effect to the statute’s jurisdictional element, we preserve our tradition of
federalism and Congress’ longstanding Article I commerce power, both of which have deep
roots in the Constitution.
19
instrumentalities of commerce in committing criminal acts.6
Ballinger urges us to distinguish these statutes from § 247, suggesting that
they “are examples of proper use of the Commerce Clause by regulating an
instrumentality of or a thing in interstate commerce. In contrast, the language of §
247 does not require anything to move in commerce.” Appellant’s Panel Br. at 36-
37. The difference, according to the Appellant, is that these statutes “regulate
crime by focusing on the criminal’s movement in interstate commerce.” Id. at 36.
This analysis, however, conflates the constitutional question with the statutory
interpretation question. The question of whether Congress has the constitutional
authority to proscribe Ballinger’s conduct is entirely distinct from the question of
whether the statutory language Congress employed actually reached that conduct.
Appellant, in fact, seems to concede that Congress constitutionally could have
proscribed Ballinger’s offenses, simply by rewording the statute to “focus[]on the
6
The dissent from the panel opinion also cites a number of early Supreme Court cases
upholding similar congressional exercises of commerce power. See Ballinger, 312 F.3d at 1277
(Hall, J., dissenting) (citing Brooks v. United States, 267 U.S. 432, 45 S. Ct. 345, 69 L. Ed. 699
(1925), which upheld a statute prohibiting the transportation across state lines of stolen
automobiles; Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917),
which upheld a statute prohibiting the transportation of women across state lines for the purpose
of concubinage; Hoke v. United States, 227 U.S. 308, 33 S. Ct. 281, 57 L. Ed. 523 (1913), which
upheld a statute prohibiting inducing a woman to travel in interstate commerce for the purpose of
prostitution; and Champion v. Ames, 188 U.S. 321, 23 S. Ct. 321, 47 L. Ed. 492 (1903), which
upheld a statute barring the transportation across state lines of lottery tickets).
20
criminal’s movement in interstate commerce.” Id.7
Thus, for the purpose of determining the constitutionality of proscribing
Ballinger’s conduct, it is sufficient to say that Congress’ commerce authority
includes the power to punish a church arsonist who uses the channels and
instrumentalities of interstate commerce to commit his offenses. Given that
Congress has the power to proscribe Ballinger’s conduct, we turn to the remaining
question of whether, in enacting § 247, Congress actually did so.
7
Not all of the statutes the Appellant cites actually focus on the travel rather than on the
offense. Title 18 U.S.C. § 2118(a), for example, provides: “Whoever takes or attempts to take
from the person or presence of another by force or violence or by intimidation any . . . controlled
substance . . . shall . . . be fined . . . or imprisoned . . . if . . . (2) the person who engaged in such
taking or attempted such taking traveled in interstate or foreign commerce or used any facility in
interstate or foreign commerce to facilitate such taking or attempt.” Plainly, this provision is
worded to focus on punishing the act of taking property, not the travel in or use of a facility of
interstate commerce.
Other statutes further illustrate the formalistic nature of the Appellant’s suggestion that
Congress can only proscribe travel in commerce to commit a crime, not the crime itself. Thus,
for example, 21 U.S.C. § 331(k) prohibits “[t]he alteration, mutilation, destruction, obliteration,
or removal of the whole or any part of the labeling of, or the doing of any other act with respect
to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale
(whether or not the first sale) after shipment in interstate commerce and results in such article
being adulterated or misbranded.” 21 U.S.C. § 331(k) (emphasis added). In fact, the Supreme
Court has upheld § 331(k) (then codified as 21 U.S.C. § 301(k)) as a valid exercise of commerce
power. See United States v. Sullivan, 332 U.S. 689, 68 S. Ct. 331, 92 L. Ed. 297 (1948); see also
United States v. Evers, 643 F.2d 1043 (5th Cir. Apr. 27, 1981) (noting the Supreme Court’s
holding in Sullivan and applying the statute accordingly).
Similarly, the Supreme Court held in Scarborough v. United States, 431 U.S. 563, 97 S.
Ct. 1963, 52 L. Ed. 2d 582 (1977), that under 18 U.S.C. § 1202(a), which punishes felons who
“possess[] . . . in commerce” a firearm, the offense of possession need not have “a present nexus
with commerce.” Id. at 571-72. Rather, the firearm need only have moved in commerce at some
time prior to the felon’s possession of it. See, e.g., United States v. Dupree, 258 F.3d 1258, 1260
(11th Cir. 2001) (upholding the constitutionality of 18 U.S.C. § 922(g), the successor statute to §
1202(a)).
21
III.
The central question this appeal raises is whether § 247 is properly
interpreted as prohibiting the use of the channels and instrumentalities of
commerce to commit church arson, or whether the statute merely proscribes arsons
in which the burning of the church itself occurs in commerce or affects commerce.
Ballinger takes the position that arson is a purely intrastate activity that can rarely,
if ever, be “in commerce.” In this view, the crime of arson occurs only at the
precise “point when the arsonist starts the fire,” Appellant’s En Banc Br. at 20; this
point, therefore, is the only one relevant to determining whether the offense is “in
commerce.” “[T]ravel prior to the offense is not relevant,” Ballinger maintains,
because it is not part of the offense. Id. at 29. Accordingly, he reads § 247's
provision that “the offense is in or affects” commerce as requiring that the
defendant commit the ultimate actus reus of igniting the church “in commerce.”
Ballinger is less than clear about what, precisely, he believes must transpire “in
commerce” to satisfy the statute; what is clearly insufficient, though, in his view, is
“[t]raveling [in interstate commerce] or using facilities or instrumentalities [of
interstate commerce] before or after committing the offense.” Id. In other words,
Ballinger envisions the statute as proscribing only those offenses in which the
precise meeting of flame and church occurs in commerce -- not those in which the
22
offender relies on the channels and instrumentalities of commerce to carry out the
offense. We disagree with this unusually limited reading of § 247.
A.
The fundamental flaw in Appellant’s reading of § 247 is that it misconceives
the structure of the commerce power and the linguistic tools employed by Congress
in defining the jurisdictional reach of § 247. An interpretation of any statute
enacted pursuant to the commerce power must be informed by the content and
contours of Congress’ authority under the Commerce Clause and the linguistic
tools at its disposal to exert that power. In the case of § 247, only when the
statutory language is removed completely from the backdrop of the commerce
power from which it arises is there any ambiguity about its meaning. A glance at
the history of Commerce Clause legislation that preceded and informed § 247's
enactment makes plain that § 247’s express jurisdictional language -- requiring that
the offense is “in or affects commerce” -- is a term of art, whose settled,
specialized meaning can and must be given effect.
As we have already said, the Supreme Court in Lopez articulated three broad
categories of Congress’ Commerce Clause authority: regulation of the channels of
interstate commerce; regulation of the instrumentalities of interstate commerce;
and regulation of intrastate conduct that substantially affects interstate commerce.
23
See Lopez, 514 U.S. at 558-59. Congress may invoke any or all of these three
categories of commerce power in any piece of legislation. For this purpose, the
Supreme Court has taught, Congress has at its disposal a specialized set of
linguistic tools that enable it to clearly express just what type of commerce
authority it is asserting.
The history of Commerce Clause enactments reveals that the terms “in
commerce” and “affecting commerce” are ones Congress uses regularly to create
federal jurisdiction pursuant to its commerce power, and thus these terms have
taken on particularized meanings. See, e.g., Circuit City Stores, Inc. v. Adams,
532 U.S. 105, 115, 121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001) (observing that
“Congress uses different modifiers to the word ‘commerce’ in the design and
enactment of its statutes,” and that these modifiers have taken on very particular
meanings); United States v. Am. Building Maintenance Indus., 422 U.S. 271, 280,
95 S. Ct. 2150, 45 L. Ed. 2d 177 (1975) (observing that Congress has “repeatedly
acknowledged its recognition of the distinction between legislation limited to
activities ‘in commerce,’ and an assertion of its full Commerce Clause power so as
to cover all activity substantially affecting interstate commerce”). The “in
commerce” language denotes the first two Lopez categories -- regulation of the
channels and of the instrumentalities of commerce. The “affecting commerce”
24
language invokes the third Lopez category -- regulation of intrastate activities that
substantially affect commerce.
The words “affecting commerce,” as the Supreme Court has repeatedly
explained, are “words of art that ordinarily signal the broadest permissible exercise
of Congress’ Commerce Clause power.” Citizens Bank v. Alafabco, Inc., 539 U.S.
52, 56, 123 S. Ct. 2037, 156 L. Ed. 2d 46 (2003); see also Circuit City Stores, 532
U.S. at 115 (“The phrase ‘affecting commerce’ indicates Congress’ intent to
regulate to the outer limits of its authority under the Commerce Clause.”); Jones v.
United States, 529 U.S. 848, 856, 120 S. Ct. 1904, 146 L. Ed. 2d 902 (2000)
(noting “the recognized distinction between legislation limited to activities ‘in
commerce’ and legislation invoking Congress’s full power over activity
substantially ‘affecting . . . commerce’”); Allied-Bruce Terminix Cos. v. Dobson,
513 U.S. 265, 277, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995) (“[T]he words
‘affecting commerce’ . . . normally mean a full exercise of constitutional power”);
United States v. Odom, 252 F.3d 1289, 1293 (11th Cir. 2001). Accordingly, these
words invoke the third and broadest Lopez category -- the power to regulate
activities that substantially “affect” commerce.
The words “in commerce,” in sharp contrast, have a much narrower
meaning. The Court has not defined the exact parameters of the term, which may
25
vary by context, see Am. Building Maintenance, 422 U.S. at 277 (“The phrase ‘in
commerce’ does not, of course, necessarily have a uniform meaning whenever
used by Congress.”); it has, however, stressed repeatedly that “in commerce” is a
phrase that expresses Congress’ intent to invoke less than the full reach of its
commerce power. The Court has explained that, “[u]nlike [the phrases ‘involving
commerce’ and ‘affecting commerce’], . . . the general words ‘in commerce’ and
the specific phrase ‘engaged in commerce’ are understood to have a more limited
reach. . . . [T]he words ‘in commerce’ are ‘often-found words of art’ that we have
not read as expressing congressional intent to regulate to the outer limits of
authority under the Commerce Clause.” Circuit City Stores, 532 U.S. at 115-16
(quoting Allied-Bruce, 513 U.S. at 273); see also Am. Building Maintenance, 422
U.S. at 276 (noting that the “distinct” and “narrow” jurisdictional phrase “in
commerce” “cannot be satisfied merely by showing that the [activities in question]
affect commerce” (citation and internal quotation marks omitted)); id. at 280
(noting that by 1950, “the phrase ‘engaged in commerce’ had long since become a
term of art, indicating a limited assertion of federal jurisdiction”); Gulf Oil Corp. v.
Copp Paving Co., 419 U.S. 186, 195, 95 S. Ct. 392, 42 L. Ed. 2d 378 (1974).
Thus, a statute employing the language “in commerce,” the Court has said,
covers “only persons or activities within the flow of interstate commerce.” Allied-
26
Bruce, 513 U.S. at 273 (quoting Am. Building Maintenance, 422 U.S. at 276
(quoting Gulf Oil, 419 U.S. at 195)); see also Gulf Oil, 419 U.S. at 195 (“[T]he
distinct ‘in commerce’ language of the Clayton and Robinson-Patman Act
provisions with which we are concerned here appears to denote only persons or
activities within the flow of interstate commerce -- the practical, economic
continuity in the generation of goods and services for interstate markets and their
transport and distribution to the consumer.”).
For more than 175 years of Commerce Clause precedent, this much has been
clear: “Within the flow of commerce” denotes movement or people or things
across interstate borders. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-
90, 6 L. Ed. 23 (1824) (“Commerce, undoubtedly, is traffic, but it is something
more: it is intercourse.”); Heart of Atlanta, 379 U.S. at 255-56 (noting that
“intercourse” includes “the movement of persons through more States than one”);
Champion v. Ames, 188 U.S. 321, 352, 23 S. Ct. 321, 47 L. Ed. 492 (1903)
(“Commerce was defined in Gibbons v. Ogden to be ‘intercourse,’ and the
thousands of people who daily pass and repass over this bridge may be as truly said
to be engaged in commerce as if they were shipping cargoes of merchandise from
New York to Liverpool.” (citation omitted) (quoting Covington & Cincinnati
Bridge Co. v. Kentucky, 154 U.S. 204, 218, 14 S. Ct. 1087, 38 L. Ed. 962 (1894)));
27
id. at 351 (“Commerce with foreign countries and among the states, strictly
considered, consists in intercourse and traffic, including in these terms navigation
and the transportation and transit of persons and property, as well as the purchase,
sale, and exchange of commodities.” (quoting County of Mobile v. Kimball, 102
U.S. 691, 702, 12 Otto 691, 26 L. Ed. 238 (1880))); Camps Newfound/Owatonna,
Inc. v. Town of Harrison, 520 U.S. 564, 573, 117 S. Ct. 1590, 137 L. Ed. 2d 852
(1997) (“[T]he transportation of persons across state lines . . . has long been
recognized as a form of ‘commerce.’”). Accordingly, the jurisdictional language
“in commerce” invokes Congress’ authority to regulate only the channels within
which people and goods move through the flow of commerce, as well as the
instrumentalities used to facilitate that movement -- that is, the Lopez 1 and Lopez
2 powers. A statute that uses only the “in commerce” language stops well short of
invoking Congress’ Lopez 3 power to regulate activities outside the channels and
instrumentalities of commerce that nonetheless substantially “affect” commerce.
Recognizing the importance of preserving easy linguistic tools by which
Congress can articulate just how much of its commerce power it may choose to
exert in a particular statutory enactment, the Supreme Court has been unwavering
in its interpretation of these commerce-modifying terms. See, e.g., Am. Building
Maintenance, 422 U.S. at 280 (“[T]he Court ha[s] drawn a sharp distinction
28
between activities in the flow of interstate commerce and intrastate activities that
affect interstate commerce.”). Their meanings are well settled, and the Court
consistently declines to alter them. See, e.g., Circuit City Stores, 532 U.S. at 117
(“The Court’s reluctance to accept contentions that Congress used the words [in a
manner inconsistent with their standard meanings] rests on sound foundation, as it
affords objective and consistent significance to the meaning of the words Congress
uses when it defines the reach of a statute.”); Am. Building Maintenance, 422 U.S.
at 280-81 (citing the NLRA and the Bituminous Coal Act of 1937 as examples of
Congress’ use of “affecting commerce,” and the 1950 amendment to section 7 of
the Clayton Act as an example of a decision by Congress to “retain[] the narrower
‘in commerce’ formulation”).
In fact, the Supreme Court has rejected the suggestion that “in commerce”
and “affecting commerce” may be conflated or read interchangeably: “The
contention that ‘in commerce’ should be read as if it meant ‘affecting interstate
commerce’ was emphatically rejected [by the Court in FTC v. Bunte Bros., 312
U.S. 349, 61 S. Ct. 580, 85 L. Ed. 881 (1941)].” Am. Building Maintenance, 422
U.S. at 276. So “far-reaching” an application of the statute in question, the Court
said, “ought to await a clearer mandate from Congress.” Id. at 277. The Bunte
Bros. decision “stressed the distinction between unfair methods of competition ‘in
29
commerce’ and those that ‘affected commerce,’ in limiting the scope of the
[FTC’s] authority under the ‘in commerce’ language.” Id. at 280.
In Scarborough v. United States, 431 U.S. 563, 97 S. Ct. 1963, 52 L. Ed. 2d
582 (1977), the Court reiterated this point. At issue in Scarborough was the
meaning of Title 18 U.S.C. § 1202(a), which penalizes any felon “who receives,
possesses, or transports in commerce or affecting commerce” a firearm. § 1202(a)
(emphasis added). Again, the Court observed that “Congress is aware of the
distinction between legislation limited to activities ‘in commerce’ and an assertion
of its full Commerce Clause power so as to cover all activity substantially affecting
interstate commerce.” Scarborough, 431 U.S. at 571 (citation and internal
quotation marks omitted). Thus, the Court found it “apparent that . . . by
prohibiting both possessions in commerce and those affecting commerce, Congress
must have meant more than to outlaw simply those possessions that occur in
commerce or in interstate facilities.” Id. at 572.
The Supreme Court similarly declined to conflate the phrase “used in” with
“affect” in Jones v. United States, a case interpreting the federal arson statute, §
844(i). In Jones, the Court assigned great significance to the particular commerce-
modifying language selected by Congress, observing that “Congress did not define
the crime described in § 844(i) as the explosion of a building whose damage or
30
destruction might affect interstate commerce,” but rather “require[d] that the
damaged or destroyed property must itself have been used in commerce or in an
activity affecting commerce.” Jones, 529 U.S. at 854 (alteration in original)
(emphasis added) (quoting United States v. Mennuti, 639 F.2d 107, 110 (2d Cir.
1981). The Court refused to read § 844(i) so that “the statute’s limiting language,
‘used in’ any commerce-affecting activity, would have no office,” noting that
“[j]udges should hesitate . . . to treat statutory terms in any setting [as surplusage],
and resistance should be heightened when the words describe an element of a
criminal offense.” Id. at 857 (omission and second alteration in original) (quoting
Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S. Ct. 655, 126 L. Ed. 2d 615
(1994)).
Even if we had any doubt whether Congress was using “in commerce” and
“affects commerce” as terms of art in this case, looking to the pre-1996 version of
§ 247 would erase all uncertainty on this score. Prior to its amendment in 1996, §
247 specifically prohibited the destruction of religious property when, in
committing the offense, the defendant traveled in interstate commerce. The pre-
1996 statute provided in pertinent part:
(a) Whoever in any of the circumstances referred to in subsection (b) of this
section --
(1) intentionally defaces, damages, or destroys any religious real property,
because of the religious character of that property, or attempts to do so; or
31
....
shall be punished as provided in subsection (c) of this section.
(b) The circumstances referred to in subsection (a) are that --
(1) in committing the offense, the defendant travels in interstate or foreign
commerce, or uses a facility or instrumentality of interstate or foreign
commerce in interstate or foreign commerce; and
(2) in the case of an offense under subsection (a)(1), the loss resulting from
the defacement, damage, or destruction is more than $10,000.
Pub. L. No. 100-346, § 1, 102 Stat. 644 (1988).
In amending the statute eight years later, Congress simply substituted in the
jurisdictional language “that the offense is in or affects interstate or foreign
commerce” for the original jurisdictional language that “in committing the offense,
the defendant travels in interstate or foreign commerce, or uses a facility or
instrumentality of interstate or foreign commerce in interstate or foreign
commerce.” All that Congress did was (1) employ the shorthand “in commerce”
rather than describing the substantive requirement of use of the channels or
instrumentalities of commerce; and (2) expand the jurisdictional hook to cover
offenses that “affect” commerce, thereby invoking for the first time all of its
commerce power. As the House Report accompanying the bill explained, the
purpose of revising the jurisdictional language was to “simplif[y] the interstate
commerce requirement of the current law,” H.R. Rep. No. 104-621, at 2, reprinted
in 1996 U.S.C.C.A.N. 1082, 1083, whose “highly restrictive and duplicative
32
language” made it difficult to prosecute cases under § 247, id. at 4, reprinted in
1996 U.S.C.C.A.N. at 1085. Notably, the amendment left the definition of the
offense itself alone, altering only the jurisdictional scope of the statute. In fact, the
new language was specifically drafted to mirror the Supreme Court’s articulation
in Lopez of the nature and extent of the commerce power. See id. at 7, reprinted in
1996 U.S.C.C.A.N. at 1088 (“This Committee is aware of the Supreme Court’s
ruling in United States v. Lopez . . . . [The amended § 247], by contrast [to the
statute struck down in Lopez], specifically limits its reach to conduct which can be
shown to be in or to affect interstate commerce.”).
Simply put, § 247 contains unambiguous jurisdictional language -- covering
offenses in or affecting commerce -- that must be given its proper effect. In this
important respect, § 247 differs significantly from the statute invalidated in Lopez,
which did not contain any clarifying jurisdictional statement, see Lopez, 514 U.S.
at 561, thus leaving substantial ambiguity about which type of commerce power
Congress intended to exert, see id. at 559. Here, in sharp contrast, by using the
phrase “in or affects commerce,” Congress has clearly invoked Lopez category 3 --
its power to regulate activities that substantially affect interstate commerce -- as
well as categories 1 and 2 -- its power to regulate the use of the channels and
instrumentalities of interstate commerce. Ballinger plainly used both channels and
33
instrumentalities of commerce to facilitate his eleven-church arson spree; thus, he
committed his offenses “in commerce” within the precise meaning of the statute.
Any other reading would contravene more than a century of Commerce Clause
precedent by failing to give the jurisdictional words expressly chosen by Congress
in amending § 247 their long-settled meanings.
Indeed, Ballinger’s interpretation of § 247 would read the “in commerce”
language out of the statute altogether. The Appellant’s circumscribed construction
of § 247 as applying only when the ultimate destruction of the church itself
happens in commerce (or affects commerce) effectively excises the “in commerce”
basis for jurisdiction from the statute. In fact, the Appellant argued explicitly to
the en banc Court that Ҥ 247 applies only to cases having a substantial effect on
interstate commerce, and does not apply to situations where the offense was
committed or facilitated through the instrumentalities of interstate commerce, or
through interstate travel.” Appellant’s En Banc Br. at 20. Although the Appellant
offered at oral argument several strained examples of offenses he believed would
be “in commerce,” his argument in his brief that § 247 applies “only to cases
having a substantial effect on interstate commerce” suggests that even he believes
his interpretation of “in commerce” to be virtually impossible to satisfy.
The Appellant’s remarkably constricted reading of the “in commerce”
34
language effectively strips those words of any force at all. It is difficult to imagine
a case that more classically depicts arson occurring in commerce than Ballinger’s.
If § 247's prohibition on destroying religious property in commerce does not reach
Ballinger’s four-state church-arson spree, there is implausibly little, if any, conduct
it actually proscribes. To dream up an offense in which the final act of destruction
actually occurs “in commerce” is difficult, if not impossible. Even if the
perpetrator were to ignite a fire in Florida, for example, just over the Georgia state
line, and wait for it to burn its way across the border to a nearby Georgia church,
the offense, as the Appellant sees it, would still not be in commerce because the act
of destruction, though set into motion in Florida, actually occurs in Georgia.
As this example illustrates, the Appellant’s cramped reading of the offense
as comprising only the ultimate destruction of the targeted property severs
unnaturally the offender from the offense. Section 247’s regulatory and punitive
focus is clearly on the offender, providing that “Whoever . . . defaces, damages or
destroys any religious real property . . . shall be punished,” § 247(a) (emphasis
added); nevertheless, the Appellant’s reading accommodates only the offense. A
more reasonable reading would acknowledge that the offense is more than the last
step in a sequence of acts that add up to the statutorily prohibited conduct. Travel
to the site of the fire and procurement of the materials for the specific purpose of
35
burning a church are necessary and indispensable steps in committing arson.
When the arsonist takes these steps in interstate commerce, his offense falls within
Congress’ power to regulate the channels and instrumentalities of commerce under
all but the most artificially constrained reading of “offense.”
By discarding the “in commerce” basis for jurisdiction, Ballinger has
essentially redrafted the statute to read something like this: “Whoever substantially
affects interstate commerce by defacing, damaging, or destroying religious
property . . . shall be punished.” This reading ignores the fact that Congress
explicitly, on the face of the statute, used a disjunctive “in or affects” commerce
jurisdictional predicate. In addition to dispensing with the plain language of the
statute, the Appellant’s reading disregards the Supreme Court’s repeated
admonition that the terms “in commerce” and “affect commerce” must be given
their separate and distinct meanings. Moreover, this effective rewriting of the
statute strips Congress of its constitutional authority to regulate the channels and
instrumentalities of commerce (Lopez 1 & 2), leaving it with only its less-well-
defined power to regulate purely intrastate activities that may substantially “affect”
commerce (Lopez 3).
In addition to eviscerating the statute substantively, reading out “in
commerce” contravenes basic canons of statutory interpretation. For one, an
36
interpretation that fails to give any meaning at all to the statute’s “in commerce”
language violates “‘a cardinal principle of statutory construction’ that ‘a statute
ought, upon the whole, to be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignificant.” TRW, Inc. v.
Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001) (quoting
Duncan v. Walker, 533 U.S. 167, 174, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001));
see also Leocal v. Ashcroft, No. 03-583, slip op. at 10 (S. Ct. Nov. 9, 2004) (“[W]e
must give effect to every word of a statute wherever possible . . . .”); TRW, 534
U.S. at 31 (“We are ‘reluctant to treat statutory terms as surplusage in any setting,’
and we decline to do so here.” (quoting Duncan, 533 U.S. at 174)); United States
v. Meansche, 348 U.S. 528, 538-39, 75 S. Ct. 513, 99 L. Ed. 615 (1955) (“It is our
duty ‘to give effect, if possible, to every clause and word of a statute.’” (quoting
Montclair v. Ramsdell, 107 U.S. 147, 152, 17 Otto 147, 2 S. Ct. 391, 27 L. Ed. 431
(1883))).
Ballinger does not contend that it is impossible to give effect to the “in
commerce” language. Indeed, to give meaning to the phrase “in commerce”
requires looking no further than the Supreme Court’s repeated statement that those
words refer to “persons or activities within the flow of interstate commerce.”
Allied-Bruce, 513 U.S. at 273 (quoting Am. Building Maintenance, 422 U.S. at
37
276 (quoting Gulf Oil, 419 U.S. at 195)). Accordingly, the only way to read § 247
is as covering arsons that “affect commerce” and arsons that occur “within the flow
of interstate commerce.” “[C]ourts must presume that a legislature says in a statute
what it means and means in a statute what it says there.” Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 117 L. Ed. 2d 391 (1992). Here,
Congress said -- and plainly meant -- that arson is an offense that can not only
affect commerce, but also actually occur in commerce. Thus, we cannot, as
Appellant would have us do, see Appellant’s En Banc Br. at 20, simply dismiss the
possibility that arson could ever occur “in commerce.”
In addition, reading the linguistically rich term “in commerce” out of the
statute violates the principle that statutory language must be read in the context of
the purpose it was intended to serve. Congress does not write statutes for the
words -- it writes them for the meaning. Accordingly, words must be read to have
a purpose, and from their purpose they cannot be delinked. The Supreme Court
has explained: “As in all cases of statutory construction, our task is to interpret the
words of these statutes in light of the purposes Congress sought to serve.”
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608, 99 S. Ct. 1905, 60
L. Ed. 2d 508 (1979) (emphasis added). “[N]othing is better settled than that
statutes should receive a sensible construction, such as will effectuate the
38
legislative intention, and, if possible, so as to avoid an unjust or absurd
conclusion.” In re Chapman, 166 U.S. 661, 667, 17 S. Ct. 677, 41 L. Ed. 1154
(1897). The Appellant, by rendering “in commerce” nothing more than empty
words, has severed that phrase from its purpose, in contravention of the basic
principle that the words of a statute are written to fill a purpose, not to fill a page.
The few examples the Appellant offered at oral argument of offenses that
would be “in commerce” under his interpretation illustrate the anomalous results
produced by his reading. For example, Ballinger argued that sending a bomb to a
church by mail would place that offense in commerce, since the mail is an
instrumentality of commerce; however, we see no principled reason why mailing a
bomb should constitute destruction of a church in commerce, whereas intentionally
using a car -- another instrumentality of commerce -- to cross an interstate border
and deliver the bomb oneself would not.
Ballinger contends further that using a cellular telephone as a mechanism for
detonating a bomb might place the resulting church destruction in commerce. This
may well be true; however, we can divine no reason to conclude that using a cell
phone to detonate the bomb directly would be enough, but using a cell phone to
call a co-conspirator in another state for the express purpose of instructing him to
detonate the bomb would not. The Appellant’s effort to distinguish the two cases
39
on the ground that the actual destruction of the church occurs in commerce under
the former circumstances but not under the latter is strained to the breaking point.
Because this Court “need not and should not countenance” an interpretation of
statutory language that “leads to ‘absurd or futile results . . . “plainly at variance
with the policy of the legislation as a whole,”’” Equal Employment Opportunity
Comm’n v. Commercial Office Prods. Co., 486 U.S. 107, 120, 108 S. Ct. 1666,
100 L. Ed. 2d 96 (1988) (quoting United States v. Am. Trucking Ass’ns, Inc., 310
U.S. 534, 543, 60 S. Ct. 1059, 84 L. Ed. 1345 (1940) (quoting Ozawa v. United
States, 260 U.S. 178, 194, 43 S. Ct. 65, 67 L. Ed. 199 (1922))); see also United
States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981)
(“[A]bsurd results are to be avoided.”), we reject the Appellant’s reading.8
8
A further consequence of Ballinger’s reading “in commerce” out of the statute is that it
largely eviscerates the offense of attempt to deface, damage, or destroy religious property. By
its express language, § 247 covers not only completed acts of defacement, damage, or
destruction of property, but also “attempts to do so.” § 247(a) (“Whoever . . . intentionally
defaces, damages, or destroys any religious real property, because of the religious character of
that property, or attempts to do so . . . shall be punished . . . .”). “To sustain a conviction for the
crime of attempt, the government need only prove (1) that the defendant had the specific intent
to engage in the criminal conduct for which he is charged and (2) that he took a substantial step
toward commission of the offense.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.
2004). A substantial step “must be more than remote preparation,” and must be conduct
“strongly corroborative of the firmness of the defendant's criminal intent.” United States v.
Mandujano, 449 F.2d 370, 377 (5th Cir. 1974).
Because Ballinger has effectively removed from § 247 the “in commerce” basis for
jurisdiction, precious few attempt offenses other than those that “affect commerce” remain
covered by the statute. Ballinger suggests that § 247 “only applies to situations where the
prosecution demonstrates that the offense of destroying or damaging religious real property has a
substantial impact on interstate or foreign commerce.” Appellant’s En Banc Br. at 43. Such an
40
effect, he asserts, can be demonstrated “only by virtue of the connection between the structure
and interstate commerce. The offense cannot have any impact on commerce other than through
the destroyed building itself . . . .” Id. at 45 (emphasis in original). Since the completed offense
of arson can affect commerce only insofar as the destruction of the church building has an
impact on commerce, it is virtually impossible to conjure up any instance in which a failed
attempt to destroy a church would have any effect -- let alone a substantial effect -- on interstate
commerce. Ballinger’s brief itself notes that “Section 247 even covers attempted church arson,
which would not even result in any damage to a piece of religious real property.” Appellant’s
Panel Br. at 41. A mere attempt, by definition, could not destroy church property; thus, the
Appellant’s interpretation largely reads the attempt offense out of the statute.
This substantial evisceration of the attempt crime thwarts Congress’ effort to reach with §
247 not only the culminating act of actually destroying a church, but also substantial preparatory
steps dangerously close to completing the offense, even when they ultimately miss their mark.
The Appellant’s suggestion that “the ‘offense’ must be measured solely by looking at the impact
on the building or a religious icon,” Appellant’s En Banc Br. at 52 (emphasis added), is wholly
incongruous with this effort. Furthermore, effectively stripping away the attempt language
violates the basic and much-repeated principle that a statute must be construed so that no
sentence, phrase, or word is rendered superfluous, void, or insignificant.
Moreover, reading § 247's attempt language, as the elements of attempt suggest it should
be read, to cover those cases in which a “substantial step” toward destroying a church happens
“in commerce” only magnifies the difficulty inherent in Appellant’s interpretation. It would
make little sense to conclude that when an arsonist takes a substantial preparatory step in
commerce, the government can prosecute him for an attempt to destroy a church if his efforts
fail, but not for the completed offense of church destruction should his attempt succeed. Thus,
for example, travel in interstate commerce to the site of a target church, with the intent to burn
that church, would constitute a substantial step in commerce; thus, if the would-be arsonist then
sets a bomb that malfunctions and fails to detonate, he presumably could be prosecuted for his
attempt to destroy the church. However, if the bomb detonates as intended and actually destroys
the church, the arsonist could not be prosecuted because, under the Appellant’s interpretation,
the ultimate act of destruction must occur in commerce -- travel in interstate commerce to
commit the offense is not enough to create jurisdiction over the completed offense.
This result is so remote that the doctrine of legal impossibility would likely bar the
attempt prosecutions anyway. “Legal impossibility,” we have explained, “occurs when the
actions which the defendant performs or sets in motion, even if fully carried out as he desires,
would not constitute a crime.” United States v. Oviedo, 525 F.2d 881, 883 (5th Cir. 1976). The
traditional view is that legal impossibility is a defense to the charge of attempt -- that is, if the
completed offense would not be a crime, neither is a prosecution for attempt permitted. See,
e.g., id.; see also Jeffrey F. Ghent, Annotation, Impossibility of Consummation of Substantive
Crime as Defense in Criminal Prosecution for Conspiracy or Attempt to Commit Crime, 37
A.L.R. 3d 375, §§ 2, 3 (2004). Quite simply, excising § 247's “in commerce” language not only
41
B.
The anomalous results produced by the Appellant’s strained reading of § 247
also plainly defeat the statute’s clear purpose. Ballinger suggests that § 247's
legislative history “is not relevant” because the statutory language is unambiguous.
Appellant’s En Banc Br. at 35. We agree that the statute is unambiguous, making
resort to legislative history unnecessary. Indeed, we mention the legislative history
only insofar as Ballinger suggests that there may be some ambiguity in the
jurisdictional scope of § 247, and in response to Ballinger’s argument that the
purpose of the 1996 amendment to § 247 was to contract the statute’s jurisdiction.
See id. at 30-32; 35; 41.
Section 247 was amended in 1996 in response to a national epidemic of
burnings of predominantly African-American churches, particularly in the
southeastern United States. H.R. Rep. No. 104-621, at 2-4 (1996), reprinted in
1996 U.S.C.C.A.N. 1082, 1083-85; 142 Cong. Rec. S7908-4, S7908 (1996) (joint
statement of Sens. Faircloth and Kennedy and Reps. Hyde and Conyers). The
statute’s original jurisdictional language, Congress found, was too complex and too
restrictive to facilitate prosecutions of these offenses. See id. In fact, only one
prosecution had been brought under § 247 since its enactment in 1988. See H.R.
eviscerates half of the statute’s express jurisdictional basis, but also severely undercuts its
explicit proscription of “attempts” to destroy religious property.
42
Rep. No. 104-621, at 4, reprinted in 1996 U.S.C.C.A.N. at 1095. As we have
noted, the pre-1996 version of the statute allowed prosecution for intentional
defacement, damage, or destruction of religious property when: “(1) in committing
the offense, the defendant travels in interstate or foreign commerce, or uses a
facility or instrumentality of interstate or foreign commerce in interstate or foreign
commerce; and (2) . . . the loss resulting from the defacement, damage, or
destruction is more than $10,000.” Pub. L. No. 100-346, § 1, 102 Stat. 644 (1988).
The 1996 amendment to the statute removed both the $10,000 monetary loss
requirement and the requirement of interstate travel or use of a facility or
instrumentality of commerce, extending jurisdiction to all cases in which “the
offense is in or affects interstate or foreign commerce.” § 247(b).
Ballinger says that the removal of the language specifically prohibiting the
destruction of religious property when, in committing the offense, the defendant
traveled in interstate commerce means that travel in commerce is no longer enough
to establish jurisdiction. Appellant’s En Banc Br. at 35. However, the 1996
amendment removed interstate travel only as a jurisdictional requisite, not as a
jurisdictional ground.
The plain and literally expressed purpose of this revision was to extend the
reach of the statute. As the House Report accompanying the bill explains,
43
Congress envisioned that “it would no longer be necessary to establish as a
jurisdictional prerequisite that the defendant himself moved in interstate commerce
or used a facility in interstate commerce. Instead it would be enough to show that
his conduct had an impact on interstate commerce.” H.R. Rep. No. 104-621, at 10
(1996), reprinted in 1996 U.S.C.C.A.N. at 1091. The statute was therefore
amended in order to “broaden[] the jurisdictional scope of the statute by applying
criminal penalties if the offense ‘is in or affects interstate or foreign commerce.’
This formulation grants Federal jurisdiction, and thus extends the Attorney
General’s ability to prosecute cases, as to any conduct which falls within the
interstate commerce clause of the Constitution.” Id. at 1087-88; see also 142
Cong. Rec. at S7909 (joint statement of Sens. Faircloth and Kennedy and Reps.
Hyde and Conyers) (“The bill replaces subsection (b) with a new interstate
commerce requirement, which broadens the scope of the statute by applying
criminal penalties if the ‘offense is in or affects interstate or foreign commerce.’”
(emphasis added)).
Moreover, Congress specifically intended the amended § 247 to reach
offenses like Ballinger’s. The House and Senate reports both state that “[u]nder
this new formulation of the interstate commerce requirement, the Committee
intends that where in committing, planning, or preparing to commit the offense, the
44
defendant either travels in interstate or foreign commerce, or uses the mail or any
facility of interstate or foreign commerce, the statute will be satisfied.” H.R. Rep.
No. 104-621, at 7 (1996), reprinted in 1996 U.S.C.C.A.N. at 1088; 142 Cong. Rec.
at S7909 (joint statement of Sens. Faircloth and Kennedy and Reps. Hyde and
Conyers).
Congress could not have made clearer its intention to exercise its full
commerce power: the House Report specifically stated that § 247's “in or affects
interstate or foreign commerce” language “grants Federal jurisdiction . . . as to any
conduct which falls within the interstate commerce clause of the Constitution.”
H.R. Rep. No. 104-621, at 7, reprinted in 1996 U.S.C.C.A.N. at 1088 (emphasis
added). The Senate Report reiterated that “it is the intent of the Congress to
exercise the fullest reach of the Federal commerce power.” 142 Cong. Rec. at
S7909 (joint statement of Sens. Faircloth and Kennedy and Reps. Hyde and
Conyers). Plainly, the statute is designed to cover all proscribed conduct that
Congress may constitutionally reach. This is nothing more than the simple
principle that the greater includes the lesser. Applying this general rule to the
statute at hand leads inescapably to the conclusion that Ballinger has improperly
read the statute as excluding his conduct: Congress invoked its full commerce
power with the “in or affects commerce” language; Congress has the power, under
45
the Commerce Clause, to reach conduct like Ballinger’s; therefore, the statute
covers Ballinger’s offenses.
C.
A final, and to our thinking significant problem with Ballinger’s reading of §
247 is that it is wholly inconsistent with the Supreme Court’s -- and this Circuit’s -
- interpretation of the linguistically similar federal felon-in-possession statute. As
we have noted, in Scarborough v. United States, the Supreme Court interpreted the
meaning of 18 U.S.C. § 1202(a), which punishes certain individuals who
“receive[], possess[], or transport[] in commerce or affecting commerce” any
firearm. Observing that this provision could be read to require either that the act of
possession itself occur in commerce or simply that the firearm have moved in
commerce prior to an intrastate act of possession, the Court deemed the statutory
language “ambiguous at best.” Scarborough, 431 U.S. at 570. Significantly, the
Court noted that, although Congress did not choose language that explicitly
indicated that the offense of possession need not have “a present nexus with
commerce,” neither did the language indicate that a contemporaneous connection
with commerce was required. Id.
Thus, the Supreme Court did two things. First, it stressed the need to give
meaning to both the “in commerce” and the “affecting commerce” language. See
46
id. at 571. Reviewing the congressional findings accompanying the legislation, the
Court concluded that “it does seem apparent that in implementing these findings by
prohibiting both possessions in commerce and those affecting commerce, Congress
must have meant more than to outlaw simply those possessions that occur in
commerce or in interstate facilities.” Id. at 572.
Second, the Court looked to the legislative history, concluding that it
“further supports the view that Congress sought to rule broadly to keep guns out of
the hands of” felons and others. Id. The legislative history contained “no
indication that Congress intended to require any more than the minimal nexus that
the firearm ha[s] been, at some time, in interstate commerce.” Id. at 575.
Moreover, the Court noted that interpreting the statute as requiring the offense of
possession itself to occur in commerce “fails completely to fulfill the congressional
purpose” and “virtually eliminates the one offense on which Congress focused in
enacting the law.” Id. at 577. Accordingly, the Court rejected that view.
In interpreting § 247, we need look no farther than the methodology
employed by the Supreme Court in Scarborough to reach the conclusion that § 247
cannot be interpreted as requiring the ultimate act of destruction to occur in
commerce. Both the well-settled meaning of the statute’s “in or affects” commerce
language and the unambiguously expressed legislative intent lead us to the view
47
that travel in interstate commerce just prior to and for the purpose of destroying a
church places the offense within the reach of § 247. To avoid -- as the Court
sought to do in Scarborough -- stripping statutory language of meaning and
thwarting legislative purpose, this Court must read § 247 to cover offenses like
Ballinger’s.
Ballinger concedes, as he must, that the words of the felon-in-possession
statute are strikingly similar to the language employed in § 247. Nevertheless, he
argues that the felon-in-possession statute should be interpreted differently because
it is part of an overarching congressional scheme of gun regulation. This argument
hardly begins to explain why the language of a church arson statute is entitled to
less deference than the language of a gun statute. Moreover, Ballinger misses the
point that the similarity between the statutes lies not in the subject of their
regulation but in the linguistic tools used to invoke federal commerce jurisdiction.
Textually, the language of the two statutes is so similar that the method and
reasoning the Supreme Court applied in interpreting the language of the felon-in-
possession law offer an easy and practical approach to the linguistically parallel
arson statute.
Indeed, since Scarborough was decided, we have at least six times
reaffirmed and reapplied its holding. We initially adopted the reasoning of
48
Scarborough in United States v. Standridge, 810 F.2d 1034 (11th Cir. 1987). In
1996, we reconsidered that decision in light of Lopez. In United States v.
McAllister, 77 F.3d 387 (11th Cir. 1996), we addressed the meaning of Title 18
U.S.C. § 922(g), the successor statute to § 1202(a), which was at issue in
Scarborough. Section 922(g) makes it unlawful for felons and certain other
individuals “to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition.” § 922(g)(1) (emphasis added).
We declared that the fact that “the firearm possessed by McAllister previously had
travelled in interstate commerce” satisfied the requirement that it be possessed in
commerce. McAllister, 77 F.3d at 390.
In spite of the statute’s literal language that the offender must “possess in
commerce” the firearm, in United States v. Reynolds, 215 F.3d 1210 (11th Cir.
2000), we again reiterated that § 922(g)’s jurisdictional requirement means that the
government must prove only “that the firearm possessed traveled in interstate
commerce,” -- not that the possession itself have occurred in commerce. Id. at
1215. Accordingly, Reynolds found the fact that the gun “was manufactured in
Connecticut and then traveled across state lines to Florida, where Reynolds
possessed it” was “sufficient to show the required nexus to interstate commerce.”
Id.
49
In 2001, this Court once more revisited the jurisdictional element of the
felon-in-possession statute, this time in light of the Supreme Court’s decision in
Morrison. In United States v. Dupree, 258 F.3d 1258 (11th Cir. 2001), we held
that “Morrison does not change the holding in McAllister and that § 922(g) is a
constitutional exercise of Congress’s commerce power.” Id. at 1259. We
determined that “by brandishing a firearm that was manufactured in California and
found in his car, [the defendant’s] actions satisfy [the jurisdictional requirement].”
Id. at 1260. A panel of the Court echoed the holding once more in United States v.
Scott, 263 F.3d 1270 (11th Cir. 2001), noting that nothing in Morrison or in Jones
v. United States (which held that the federal arson statute, 18 U.S.C. § 844(i), did
not reach a private residence), altered the holding in McAllister. See Scott, 263
F.3d at 1274. Thus, the fact that the “pistol that Scott possessed was manufactured
in California and had moved in interstate commerce to Georgia where Scott was
caught with the weapon” was “sufficient to demonstrate the required nexus to
interstate commerce.” Id.; see also United States v. Clay, 355 F.3d 1281, 1287
(11th Cir. 2004) (holding that § 922(g)’s “possess in or affecting commerce”
language covered an offense in which the only evidence of a nexus between the
weapon and commerce was an inscription on the barrel reading, “Colt
Manufacturing Company, Hartford, Ct.,” since the jury could “rationally infer[]”
50
from the inscription, coupled with the fact that the gun was seized in Georgia, that
the weapon had “traveled in or at least affected interstate commerce”). The
“possess in or affecting commerce” language of § 922(g) -- just like the “offense is
in or affects commerce” language found in § 247 -- “is a jurisdictional element of
that criminal offense.” Clay, 355 F.3d at 1286.
Simply put, the Appellant’s cramped construction of the jurisdictional
language employed by Congress in § 247 is wholly at odds with the approach this
Circuit has repeatedly taken to the nearly identical language found in § 922(g). In
short, we read § 247 as requiring that the offender utilize the channels or
instrumentalities of interstate commerce in carrying out his crime -- not that the
ultimate actus reus of destroying the church itself somehow occur in commerce.
IV.
The nature and history of the commerce power, the plain language of § 247,
and the long-accepted meaning of the term “in commerce,” along with the
accompanying legislative history and the interpretation of the linguistically similar
felon-in-possession statute, all yield the conclusion that Congress did, in fact,
proscribe Ballinger’s conduct, and that it had the power to do so. Accordingly, we
affirm Ballinger’s convictions.
AFFIRMED.
51
EDMONDSON, Chief Judge, concurs in the result.
52
TJOFLAT, Circuit Judge, dissenting, in which BIRCH and HILL, Circuit Judges,
join:
The court holds that 18 U.S.C. § 247, which provides that “[w]hoever . . .
intentionally defaces, damages, or destroys any religious real property, because of
the religious character of that property, or attempts to do so . . . shall be punished”
if “the offense is in or affects interstate or foreign commerce,” reaches a purely
local church arson so long as the arsonist crossed state lines prior to the offense. In
other words, the earlier travel places the offense itself “in . . . interstate . . .
commerce.” Because I believe that a church arson is not “in commerce” simply
because the offender traveled from another state sometime prior to the offense and,
moreover, that so interpreted the statute exceeds Congress’s authority under the
Commerce Clause, I respectfully dissent. I agree with much of what is said in the
dissents Judges Hill and Birch have filed and write separately only to emphasize a
few points.
I
When Congress seeks to rely on interstate travel as a basis for exercising its
authority under the Commerce Clause, it knows how to do so. As the panel
majority noted, “[t]here are numerous federal statutes which do, explicitly, forbid
movement in interstate commerce in order to commit a traditional common-law
crime.” United States v. Ballinger, 312 F.3d 1264, 1273 n.8 (11th Cir. 2002)
53
(collecting statutes). And more important for present purposes, prior to its
amendment in 1996, § 247 itself reached cases in which, “in committing the
offense, the defendant travels in interstate or foreign commerce, or uses a facility
or instrumentality of interstate or foreign commerce in interstate or foreign
commerce.” In 1996, this provision was deleted and replaced with the current §
247(b), which extends only to cases in which “the offense is in or affects interstate
or foreign commerce.”
The court, however, now reads the old interstate travel provision back into
the statute, as if the 1996 amendment had never occurred, despite the fact that it is
unable to cite a single case that holds that an offense is “in commerce” simply
because the offender crossed state lines at some point prior to its commission. In
reaching this conclusion, the court makes much of the narrowness of the contrary
interpretation urged by the appellant and relies on the principle that, whenever
possible, a statute should be read in a way that gives effect to all of its words.
Indeed, the court faults the appellant for failing to identify satisfactorily those
offenses other than his own that might be considered “in commerce.” Ante, at 22.
I am uncertain what, if any, church arson might be “in commerce.” It is, however,
clear to me that a church arson is not “in commerce” simply because the arsonist
came from another state at some point prior to the offense. The rule that statutes
54
should be read so as not to render words insignificant is a general principle of
statutory interpretation, not an inflexible rule.1 Therefore, we need not do violence
to the statutory language simply to satisfy ourselves that we have given all the
words of § 247 a function. The court says that “Congress does not write statutes
for the words—it writes them for the meaning.” Ante, at 38. The court, in turn,
has applied § 247’s (perceived) meaning rather than its words.
II
I agree fully with the court that the “congressional power to regulate the
channels and instrumentalities of commerce includes the power to prohibit their
use for harmful purposes, even if the targeted harm occurs outside the flow of
commerce and is purely local in nature.” Ante, at 12. That congressional power,
however, is not implicated by this case. Rather, the court has interpreted § 247 to
reach a crime that is purely local in nature simply because the defendant crossed
state lines prior to its commission. Thus, what the court interprets the statute to
regulate is the purely local intrastate crime, not the use of the channels and
instrumentalities of commerce for a harmful purpose.
In its opinion, the court cites a number of federal criminal statutes that
1
The court itself quotes cases stating that every word should be given effect “if possible”
or “wherever possible” or that the Supreme Court was “reluctant to treat statutory terms as
surplusage.” Ante, at 37.
55
criminalize interstate travel for illicit purposes, as well as several early Supreme
Court cases upholding such statutes. Ante, at 19-20 & n.6. Those statutes,
however, are unlike § 247 because they do in fact regulate the channels and
instrumentalities of commerce.2 Under such statutes, the offender commits a crime
2
In note 7 of the opinion, the court contends that 18 U.S.C. § 2118(a) is like § 247.
Section 2118(a) provides:
Whoever takes or attempts to take from the person or presence of another by force
or violence or by intimidation any material or compound containing any quantity
of a controlled substance belonging to or in the care, custody, control, or
possession of a person registered with the Drug Enforcement Administration
under section 302 of the Controlled Substances Act (21 U.S.C. 822) shall . . . be
fined under this title or imprisoned not more than twenty years, or both, if (1) the
replacement cost of the material or compound to the registrant was not less than
$500, (2) the person who engaged in such taking or attempted such taking
traveled in interstate or foreign commerce or used any facility in interstate or
foreign commerce to facilitate such taking or attempt, or (3) another person was
killed or suffered significant bodily injury as a result of such taking or attempt.
This statute is valid, however, not because of the interstate travel provision, but rather because it
“form[s] an essential part of a larger regulation of economic activity, namely the manufacture,
distribution and possession of controlled substances, in which the overall regulatory scheme
could be undercut unless the intrastate activity were regulated.” United States v. Workman, 990
F. Supp. 473, 475 (S.D. W. Va. 1998) (upholding § 2118(b), which criminalizes entering or
attempting to enter the premises or property of a person registered with the DEA with the intent
to steal a controlled substance). Moreover, the statute itself indicates that the interstate travel
provision is not relied upon to establish jurisdiction under the Commerce Clause, for even where
no interstate travel is involved the statute reaches cases in which the controlled substance taken
was worth at least $500 or another person was killed or seriously injured in the course of the
crime.
Similarly, the other two statutes discussed in note 7 of the court’s opinion, 21 U.S.C. §
331(k), which criminalizes the adulteration or misbranding of any article subject to FDA
regulation “while such article is held for sale . . . after shipment in interstate commerce,” and the
old felon-in-possession statute addressed in Scarborough v. United States, 431 U.S. 563, 97 S.
Ct. 1963, 52 L. Ed. 2d 582 (1977), which made it a crime for a felon to “possess[] or transport[]
in commerce or affecting commerce, . . . any firearm,” are within Congress’s commerce power
because they are part of a larger regulation of economic activity, namely, the regulation of drugs,
etc., in one case, and the regulation of guns, etc., in the other. See United States v. Sullivan, 332
U.S. 689, 68 S. Ct. 331, 92 L. Ed. 297 (1948) (upholding the FDA provision as a valid exercise
of “the constitutional power of Congress under the commerce clause to regulate the branding of
articles that have completed an interstate shipment and are being held for future sales in purely
56
as soon as he begins travel in interstate commerce for the harmful purpose because
that is precisely what is made criminal—the movement in commerce for the
harmful purpose. In those cases, the use of the channels of commerce and the
offense itself are inextricably intertwined, and Congress has properly regulated the
channels and instrumentalities of interstate commerce. Here, in contrast, there is
no suggestion that § 247 criminalizes mere travel with the unlawful purpose or
regulates, for example, the interstate transportation of persons for the purpose of
committing church arson. Rather, the statute unambiguously regulates the purely
local defacement or destruction of religious real property itself. This distinction
does not, as the court contends, “conflate[] the constitutional question with the
statutory interpretation question.” Ante, at 20. Indeed, the Supreme Court
acknowledged this very difference in Caminetti v. United States, 242 U.S. 470, 37
S. Ct. 192, 61 L. Ed. 442 (1917):
It may be conceded, for the purpose of the argument, that Congress
has no power to punish one who travels in interstate commerce merely
because he has the intention of committing an illegal or immoral act at
the conclusion of the journey. But this act is not concerned with such
local or intrastate commerce” (citing, inter alia, Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82,
87 L. Ed. 122 (1942))); Scarborough, 431 U.S. at 576, 97 S. Ct. at 1969 (1977) (reasoning that a
narrower interpretation of “in commerce or affecting commerce” would “create serious
loopholes in the congressional plan”). Thus, the court’s reliance on Scarborough and progeny is
misplaced, as Congress’s authority to regulate the possession of guns is part of its larger
authority to regulate the sale, distribution, and possession of guns—an economic activity—and
the statute refers not only to possession “in commerce,” but also to possession “affecting
commerce.”
57
instances. It seeks to reach and punish the movement in interstate
commerce of women and girls with a view to the accomplishment of
the unlawful purposes prohibited.
Id. at 491, 37 S. Ct. at 197. This statement, which only assumes the point for the
sake of argument, does not, of course, conclusively establish that the court’s
interpretation of § 247 is beyond Congress’s commerce power. But it does
demonstrate that there is a difference between this case and the cases on which the
court relies and, further, that the constitutional issue cannot be resolved simply by
way of citations to those cases. And once it is seen that this case is not controlled
by those precedents, it also becomes clear that the court’s interpretation of § 247 is
unconstitutional under United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131
L. Ed. 2d 626 (1995). Because the court’s reading of § 247 regulates a purely local
crime rather than the use of the channels or instrumentalities of commerce, it
cannot be sustained as an exercise of Congress’s “Lopez 1” or “Lopez 2” powers.
Nor, as the panel majority in this case has already demonstrated, can it be sustained
under “Lopez 3.” Ballinger, 312 F.3d at 1268-76.
III
My final quarrel with the majority opinion is that its ultimate holding is
obscure. As I have explained, I do not understand the court’s decision to hinge on
a determination that Ballinger actually crossed state lines with the intent to burn
58
churches; rather, I take the court to hold that § 247 reaches Ballinger’s conduct
simply because he crossed state lines at some point not too long before committing
the arson. If this is truly the holding of this case, then the obvious follow-up
question is how closely connected the border crossing and the arson must be for §
247 to apply. Ballinger, of course, began burning churches in Georgia soon after
arriving there, so this is, for the court, an easy case. But would § 247 still apply if
he had waited a week? What about a month? Or what if Ballinger had actually
moved to Georgia, established a permanent residence, and then several months or
even years later committed the arson? I think it is likely that the court would draw
a line somewhere along this continuum, but I am not at all sure where it would be.
Nor can I imagine from whence such a rule would come, other than maybe our
own good judgment. Since there is no basis in the text of the statute itself for such
a rule, it—like the court’s interstate travel jurisdictional hook—would have to be
created out of whole cloth. If this is what the court means to hold, it would be
better to say so clearly and to go ahead and write the rule into the statute now so as
to at least give the district courts and the Government some guidance going
forward. Instead, the court vaguely holds that § 247 applies whenever the arsonist
crosses state lines at some point prior to the offense. How close in time the border
crossing and the arson must be is a question that we apparently leave for another
59
day. Thus, although the court is willing to hold that § 247 contains a jurisdictional
hook that, on its face, it quite plainly does not, it is unwilling to say exactly what
that jurisdictional hook is.
It is possible, however, that I have misread the court’s opinion. At the outset
of the opinion, for example, the court does state that Ballinger “cross[ed] the
borders of four states for the purpose of burning churches.” Ante, at 2. And later
on, the court states that Ballinger made “at least six separate border crossings, all
for the specific purpose of spreading the evil of church burning through four
different states,” and, quoting the panel dissent, that “the immediacy with which he
set out to burn churches once he arrived and the absence of any indication that he
had other business in Georgia demonstrate that he used the channels for the
purpose of committing arson.” Ante, at 17-18 (quoting Ballinger, 312 F.3d at 1278
(Hall, J., dissenting)).
Does this mean that the court does, in fact, hold that § 247 applies only when
the defendant actually traveled in interstate commerce with the intent to commit
church arson—i.e., that mere proof of travel and a subsequent arson is insufficient?
If so, then I think that the court has two problems. First, there is again nothing in
the text of the statute to support such a reading. Of course, a lack of textual
support will plague any interpretation of § 247 that reaches Ballinger’s conduct, so
60
I will move on to the second problem with this potential holding: neither the facts
charged in the indictment nor those to which Ballinger stipulated as part of his plea
agreement support a finding that he actually crossed state lines with the intent to
burn churches. The indictment merely tracks the statutory language, charging that
the arson was committed “under circumstances such that [it] was in and affecting
interstate commerce.” Moreover, Ballinger stipulated that he and his girlfriend left
Indiana “partly out of concern about a call by an FBI agent to Ballinger’s parent’s
home in Indiana.” He also stipulated that he did not purchase the gasoline used in
the Georgia fires until he was actually in Georgia. Nowhere does he specifically
admit that he crossed state lines with the intent to burn churches or traveled for that
specific purpose. Thus, if the court has in fact rewritten § 247 to make interstate
travel with the intent to commit church arson an element of the offense, then the
conviction should be vacated because there is no evidence in the record of such an
intent. See, e.g., United States v. Gamboa, 166 F.3d 1327, 1331 n.4 (11th Cir.
1999) (“A court cannot accept a guilty plea unless it is satisfied that the conduct to
which the defendant admits constitutes the offense charged.”); United States v.
White, 258 F.3d 374, 380 (5th Cir. 2001) (“notwithstanding an unconditional plea
of guilty, we will reverse on direct appeal where the factual basis for the plea as
61
shown of record fails to establish an element of the offense of conviction”).3
To reiterate, I do not think this shortcoming really matters to the court’s
holding, as I understand the holding to be that the crime is the church arson and
that the prior border crossing is a sufficient jurisdictional hook whether intent was
present during that interstate travel or not. Indeed, the very fact that the court has
rendered this point a nonissue underscores the difference between federal statutes
that criminalize interstate travel for an illicit purpose and the statute we address
3
On appeal, Ballinger does not specifically argue that his conviction should be vacated
on this ground. This is understandable. In the part of its opinion holding that the charged
offenses “occurred in interstate commerce,” the district court stated the following:
[D]efendant traveled through Indiana, Kentucky, and Tennessee on his way to
Georgia and then back through Kentucky thereafter. Defendant utilized interstate
highways, gas stations, hotels, and supplies and made various purchases in
interstate commerce to prepare for and accomplish a multi-state arson campaign
that ultimately targeted eleven churches in four different states. Although
defendant’s crimes in Indiana, Kentucky, and Tennessee are not presently before
this court, the stipulated factual basis illustrates that these transactionally-related
offenses constitute part of a larger campaign which may be fairly characterized as
an “offense . . . in or affect[ing] interstate or foreign commerce.” 18 U.S.C. §
247(b). This court is satisfied that on these grounds alone, defendant’s § 247
prosecution is constitutionally permissible.
The district court did not rest its determination that the offenses occurred “in commerce” on any
determination that Ballinger actually entered Georgia with the intent of burning churches.
Rather, the district court held that the border crossing by itself placed the subsequent offense “in
commerce” without regard to intent. If the majority’s interpretation of § 247 does, in fact,
require a showing of such an intent—and, again, my impression is that it does not—then it
differs significantly from the “in commerce” theory of the conviction the district court adopted.
Cf. App.’s En Banc Brief, at 29 (“In its Petition for En Banc Consideration, the government
contended that §247 is satisfied when a defendant travels across state lines at some unnamed
point prior to committing the offense.”), 34 (“The government never answers the question of . . .
how far in time this line crossing would continue [to satisfy the requirement that the offense be
‘in commerce’].”). It is, therefore, of no moment that Ballinger has not specifically argued the
point on appeal; if we are to create a new theory of the conviction on appeal, we must at least
ascertain whether the factual basis for the guilty plea in fact supports that theory.
62
here. If § 247 actually targeted interstate travel with the intent to commit church
arson, it would probably be constitutional, and we would have to decide whether
the stipulated factual basis for the plea is sufficient to establish intent and thus to
sustain the conviction. But such a reading of the statute would lack even the
faintest basis in its text, and I do not think that it is the interpretation that the
majority adopts. I mention the possibility only because the court’s opinion is less
than clear on this point, and if I am wrong and this is the court’s interpretation of
the statute, then the court should at least explain its basis for concluding that
Ballinger actually crossed state lines with the intent to commit church arson.
My confusion as to the holding of this case can be summarized in a few
short questions that the court seems to leave unanswered: First, under the court’s
interpretation of § 247, is it necessary to prove that the defendant traveled in
interstate commerce with the intent to commit church arson? I think the court
would answer, “no.” If that is the case, then how close in time must the border
crossing and the arson be for § 247 to apply? (And, as a matter of statutory
interpretation, how are we to decide where to draw the line?) If, however, the
court would answer my first question in the affirmative, what basis is there for
concluding that Ballinger crossed state lines with the intent to commit church
arson? Because all of these points remain unclear, the court’s opinion remains
63
unsatisfactory even if I assume that it reaches the correct result. Once these
ambiguities are cleared away, we are again left with purely intrastate offenses and
a federal prosecution of them that hangs solely on the offender’s earlier crossing
from one state into another. As such, the court’s discussion of Ballinger’s highway
travels, gasoline purchases, and hotel stays, and its citations to cases sustaining
convictions where the federal crime was the interstate travel itself, are simply
irrelevant and serve only to obscure the real issue and to create an illusion of a
connection to interstate commerce that simply does not exist in fact.
IV
Because § 247 cannot properly be interpreted to reach Ballinger’s conduct,
and because it would be unconstitutional even if it could, I respectfully dissent.
64
BIRCH Circuit Judge, dissenting, in which HILL, Circuit Judge, joins:
As to the majority opinion, I respectfully dissent. I fully concur in Judge
Hill’s dissent and add my following thoughts as well.
At its core, this case devolves into a simple, yet nuanced, question: does the
Commerce Clause grant the United States Congress the power to proscribe the
common law crime of arson by attaching the jurisdictional qualifier “in or affects
interstate commerce” to the anti-church-burning statute, 18 U.S.C. § 247? As
Judge Hill’s thorough and well-reasoned dissent points out, the majority’s noble
effort to uphold the constitutionality of § 247 through statutory construction fails to
consider what the statute actually penalizes, namely, a local common law crime
against property.1 While I fully concur with his opinion and analysis, Judge Hill’s
arguments can be magnified even further when viewed through the lens of
federalism, a concept which retains vitality and importance in our modern
constitutional scheme, see United States v. Lopez, 514 U.S. 549, 575, 115 S. Ct.
1624, 1637 (1995). Recognizing that § 247 regulates by federal statute an area of
criminal law traditionally reserved to the States, I write separately to emphasize
1
As Judge Hill notes, § 247 cannot be construed to penalize interstate travel to
accomplish an arson of religious real property because the proscription of such travel was
excised by Congress in 1996 when it amended the statute. By deleting the reference to interstate
travel and inserting the present language, Congress cast § 247’s reach “over a wider, and more
purely intrastate” category of common law crimes by outlawing the act of church-burning itself
if accomplished after the arsonist happened to cross State lines. See United States v. Morrison,
529 U.S. 598, 613, 120 S. Ct. 1740, 1752 (2000).
65
that the principles of federalism implicated in this case should have led the
majority to find that 18 U.S.C. § 247 represents an incursion into State police
powers not sanctioned by the United States Constitution.
I. Federalism and Its Relation to Commerce Clause Interpretation
It is axiomatic that the “Constitution creates a Federal Government of
enumerated powers.” Lopez, 514 U.S. at 552, 115 S. Ct. at 1626. Despite the rise
and fall of various constitutional doctrines, this bedrock principle has received
enduring, unfailing adherence. See McCulloch v. Maryland, 17 U.S. 316, 405
(1819) (noting that it is “universally admitted” that the federal government is “one
of enumerated powers”); Hammer v. Dagenhart, 247 U.S. 251, 275, 38 S. Ct. 529,
532 (1918) (same); United States v. Morrison, 529 U.S. 598, 607, 120 S. Ct. 1740,
1748 (2000). In accordance with this construct, “[e]very law enacted by Congress
must be based on one or more of its powers enumerated in the Constitution.”
Morrison, 529 U.S. at 607, 120 S. Ct. at 1748. Concomitant with this recognition
that federal legislative power is limited by the Constitution, however, is the
principle that legislative power not granted to Congress was reserved to the States.
See U.S. C ONST. amend. X; United States v. Darby, 312 U.S. 100, 124, 61 S. Ct.
451, 462 (1941) (noting that the Tenth Amendment “states but a truism that all is
retained which has not been surrendered”). The Framers thus established a
66
constitutional structure in which “[t]he powers delegated . . . to the federal
government are few and defined[;] [t]hose which are to remain in the State
governments are numerous and indefinite.” T HE F EDERALIST No. 45 (James
Madison). Accordingly, the Constitution ensures “a system of dual sovereignty
between the States and the Federal Government.” Gregory v. Ashcroft, 501 U.S.
452, 457, 111 S. Ct. 2395, 2399 (1991). This complex constitutional dynamic is
typically summarized by the single phrase “federalism.”
Realizing that the constitutional design mandated adherence to federalist
principles, federalism has informed jurisprudential analysis in a number of areas.
For example, federalism and respect for State sovereignty has led the Supreme
Court to caution against granting federal injunctions to enjoin pending State court
proceedings. See Younger v. Harris, 401 U.S. 37, 45, 91 S. Ct. 746, 751 (1971).
Likewise, a concern for federalist principles has led federal courts to refrain from
reversing a State court decision if that decision rests on adequate State grounds
independent of federal questions. See, e.g., Murdock v. City of Memphis, 87 U.S.
590, 635 (1875). Similarly, respect for the legislative competence of States has
dictated that federal courts sitting in diversity apply State rules of decision, see Erie
R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822 (1938) (noting that “the
Constitution of the United States . . . recognizes and preserves the autonomy and
67
independence of the States”), and State choice of law rules, see Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021 (1941).
It is against this backdrop of federalism that the Commerce Clause is most
appropriately interpreted when a federal statute purports to regulate an area in
which State law traditionally occupied the field. The Constitution grants Congress
the power to “regulate Commerce with foreign Nations, and among the several
States . . . .” U.S. C ONST. art. I, § 8. This “express grant of power to regulate
commerce among the States has always been understood as limited by its terms.”
United States v. Dewitt, 76 U.S. 41, 44 (1869); see Lopez, 514 U.S. at 553, 115 S.
Ct. at 1627 (citing Gibbons v. Ogden, 22 U.S. 1 (1824) for the proposition that the
“limitations on the commerce power are inherent in the very language of the
Commerce Clause”). Thus, the Constitution relegates Congressional activity to
areas of interstate commerce. The Framers chose to limit the exercise of federal
power in this manner precisely to preserve a federalist system. See NLRB v. Jones
& Laughlin Steel Corp., 301 U.S. 1, 37, 57 S. Ct. 615, 624 (1937) (“[T]he scope of
this [Commerce Clause] power must be considered in the light of our dual system
of government . . . .). By restricting congressional activity to the regulation of
interstate commerce, the Constitution preserves the “‘distinction between what is
national and what is local’” lest a “‘completely centralized government’” wholly
68
occupy the legislative field. Lopez, 514 U.S. at 557, 115 S. Ct. at 1629 (quoting
Jones & Laughlin Steel Corp., 301 U.S. at 37, 57 S. Ct. at 624).
Admittedly, however, some federal regulation in areas traditionally reserved
to the States is required. Realizing that certain acts which are wholly intrastate in
character may affect interstate commerce, and thereby frustrate Congress’s express
power to regulate interstate commerce, the Supreme Court has permitted federal
regulation of such activity where it substantially affects interstate commerce in the
aggregate. See Wickard v. Filburn, 317 U.S. 111, 124-25, 63 S. Ct. 82, 89 (1942).
The Wickard decision, however, has been subsequently declared to be “perhaps the
most far reaching example of Commerce Clause authority over intrastate activity.”
Lopez, 514 U.S. at 560, 115 S. Ct. at 1630. Moreover, subsequent decisions
relying on Wickard have delimited its holding in two important and obvious ways
because of federalist concerns. First, federal regulation of intrastate activity must
regulate activity that is economic in nature. Morrison, 529 U.S. at 610, 120 S. Ct.
at 1750.2 This limitation recognizes that if the federal government is allowed to
2
Reading the cases in which federal regulations of intrastate activity have been upheld
under the Commerce Clause, this limitation could be refined even further to require that the
federal regulation promote the national economy, rather than simply affect it. See United States
v. Wrightwood Dairy Co., 315 U.S. 110, 120, 62 S. Ct. 523, 526 (1942) (noting that the Sherman
Antitrust Act could be applied to intrastate activity because anti-monopolistic conditions
promoted interstate commerce); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258,
85 S. Ct. 348, 358 (1964) (finding regulation of motels was permitted under Commerce Clause
because it promoted interstate commerce by encouraging unrestricted interstate travel); Perez v.
United States, 402 U.S. 146, 154-55, 91 S. Ct. 1357, 1362-63 (1971) (upholding federal
69
encroach upon noneconomic areas of State concern, federal regulation will crowd
out state legislation in contravention to the Constitution’s federalist dynamic. See
Lopez, 514 U.S. at 595, 115 S. Ct. at 1647 (Thomas, J., concurring) (noting that the
power to regulate “intrastate commerce” which substantially affects interstate
commerce does not sanction federal regulation of intrastate “activities” unrelated to
commerce). Second, federal enactments reaching intrastate commerce must have a
sufficient nexus to interstate activity. Id. at 562-63; see Maryland v. Wirtz, 392
U.S. 183, 196, 88 S. Ct. 2017, 2024 (1968) (“The subject of federal power is still
‘commerce,’ and not all commerce but commerce . . . among the several States.”)
(citation omitted). The Court relegated Wickard’s reach in this manner because, if
the federal government were allowed “to take over the regulation of entire areas of
traditional state concern, . . . the boundaries between the spheres of federal and
state authority would blur . . . .” Lopez, 514 U.S. at 577, 115 S. Ct. at 1638
(Kennedy, J., concurring). Accordingly, along the spectrum of Congress’s
commerce power, Wickard and its progeny, tempered by federalist limitations,
represent the farthest federal regulation can reach into intrastate activity. The
majority ignores this limitation.
II. The Commerce Power and 18 U.S.C. § 247
criminalization of loan-sharking because such practices hindered legitimate national economic
activity).
70
Against this background of federalism and the boundaries it establishes for
congressional activity in areas typically relegated to State law, the core issues in
this case come into focus. As Judge Hill’s dissent notes, 18 U.S.C. § 247
represents a federal statute which purports to proscribe the common law crime of
arson when directed at religious real property by a perpetrator who crossed State
lines to commit the crime. Viewing the commerce power in a federalist context, it
becomes manifest that the power to proscribe church burning in this manner lies
beyond Congress’s grasp.
First, this regulation impermissibly intrudes into areas traditionally reserved
to the States. “States possess primary authority for defining and enforcing the
criminal law.”3 Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S. Ct. 1710, 1720
(1993). That the legislative proscription of common law crimes should be left to
the States was apparent to the Framers before the Constitution was ratified. See
T HE F EDERALIST, No.17 (Alexander Hamilton) (noting that the “administration of
criminal and civil justice” was reserved to the States). This concept was confirmed
3
Importantly, it should be noted that Congress is not barred from enacting criminal laws
pursuant to its express powers. See Lopez, 514 U.S. at 597 n.6, 115 S. Ct. at 1648 n.6 (Thomas,
J., concurring). Utilizing the Necessary and Proper Clause, see U.S. CONST . art. I, § 8, Congress
has prohibited movement through interstate channels by criminal sanction. See, e.g., 18 U.S.C. §
1958 (criminalizing travel to commit murder for hire). When Congress criminalizes localized
conduct traditionally regulated the States, however, federalism concerns are triggered and federal
courts should invalidate the statute if it unduly obliterates the federal-State balance mandated by
our constitutional design. See Lopez, 514 U.S. at 552, 115 S. Ct. at 1626.
71
by the Supreme Court, see Cohens v. Virginia, 19 U.S. 264, 428 (1821) (“It is
clear, that Congress cannot punish felonies generally.”), and it retains vitality
today, see Morrison, 529 U.S. at 618, 120 S. Ct. at 1754 (“[W]e 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.”). In addition to encroaching into State criminal law, §
247 also relates to real property, another area traditionally reserved to the States.
See Village of Euclid v. Amber Realty Co., 272 U.S. 365, 387-88, 47 S. Ct. 114,
118 (1926). By purporting to outlaw the act of burning a church, Congress has
federalized a common law crime against property. See California v. Minjares, 443
U.S. 916, 927, 100 S. Ct. 9, 15 (1979) (Rehnquist, J., dissenting) (noting that
“crimes against person and property—the traditional common-law crimes—have
largely remained the preserve of the State.”). Truly, church arson is contemptible
behavior, and Ballinger’s conduct merits harsh condemnation. His acts, however,
devastated the worship spaces of local church communities; and by destroying
local, fixed real property, the affects of his crimes are most closely felt by local
citizens. Accordingly, the proper channel for expressing local outrage and
exacting justice is the State criminal law 4 enacted by the representatives of the
4
State criminal statutes would have outlawed Ballinger’s conduct in each of the States in
which he committed church arson. See IND . CODE ANN . § 35-43-1-1; KY . REV . STAT . ANN . §
72
affected local citizens.5 Because “Congress may not in the exercise of federal
power exert authority wholly reserved to the States,” Linder v. United States, 268
U.S. 5, 19, 45 S. Ct. 446, 449 (1925) (citation omitted), § 247 is an
unconstitutional attempt by Congress to reach beyond its commerce power. See
Hammer, 247 U.S. at 273, 38 S. Ct. at 532 (finding unconstitutional a federal
statute proscribing the trafficking of goods made with child labor because it
infringed on State police power); Keller v. United States, 213 U.S. 138, 148, 29 S.
Ct. 470, 473 (1909) (invalidating a federal statute criminalizing the importation of
an alien for purposes of prostitution because “there is in the Constitution no grant
to Congress of the police power”); see also Jones v. United States, 529 U.S. 848,
858, 120 S. Ct. 1904, 1912 (2000) (reading 18 U.S.C. § 844(i) narrowly to avoid
513.030; TENN . CODE ANN . § 39-14-301(b)(2)(A) (specifically proscribing “[a]rson of a place of
worship”); O.C.G.A. § 16-7-61.
5
In this way, the majority’s insistence that the statute constitutionally prevents channels
of interstate commerce from being used to accomplish injurious or harmful ends is misplaced.
While Ballinger used interstate highways to travel to the States in which he burned churches, his
crimes affected fixed real property and local citizens. Accordingly, the channels of interstate
commerce were rendered no less conducive to the facilitation of commerce simply because
Ballinger used them prior to the commission of his crimes. If Congress’s commerce power were
allowed to stretch so far, Congress could proscribe common law murder, an act which also has
localized affects and sparks local outrage, if the perpetrator used a highway to arrive at the scene
of the crime. As the Supreme Court has noted, Congress lacks the power to proscribe common
law murder. See Cohens v. Virginia, 19 U.S. at 426 (stating that Congress has “no general right”
to punish common law crimes like “murder committed within any of the States”). Accordingly,
by analogy, Congress may not proscribe arson in § 247 under the guise of protecting a channel of
interstate commerce when arson has localized affects and in no way impairs the conduct of
commercial intercourse.
73
the constitutional issue of transforming all arson subject to state regulation into
federal felonies).
Second, assuming arguendo that § 247 is in fact placed closer to the realm of
permissible federal regulation of intrastate conduct recognized by Wickard and its
progeny because it contains the jurisdictional qualifier “in or affects commerce,”6
its lack of the requisite nexus to things economic shows that § 247 is beyond even
the furthest reach of Congress’s commerce power. In Lopez, the Court found that
a federal statute regulating firearm possession in schools lacked any nexus to
economic activity. See Lopez, 514 U.S. at 551, 115 S. Ct. at 1626. Similarly, only
by the employment of several inferential conclusions can one connect the
proscription in 18 U.S.C. § 247 to economic activity. See id. at 567 (refusing to
“pile inference upon inference” to sustain a federal statute when its provisions
regulated noneconomic activity). Indeed, the majority’s expansive interpretation
of Wickard’s sanction of federal regulation of intrastate commerce “risks making a
whole catalog of ordinary state crimes a concurrent violation of a single
6
As Judge Hill’s dissent notes, the majority relies heavily upon this jurisdictional
qualifier to uphold the constitutionality of § 247. While the Lopez Court faulted the federal
statute in that case for its lack of a jurisdictional limitation, see Lopez, 514 U.S. at 561, 115 S.
Ct. at 1631, it did not indicate that the presence of such a limitation would have by itself saved
the statute from invalidation. Moreover, the Lopez Court’s first and primary objection to the
statute was that it was a criminal statute that lacked the requisite nexus to economic activity. See
id. at 561. Accordingly, I attach more weight to what § 247 penalizes than to its inclusion of a
jurisdictional qualifier.
74
congressional statute . . . .” Bray v. Alexandria Women’s Health Clinic, 506 U.S.
263, 287, 113 S. Ct. 753, 768 (1993) (Kennedy, J., concurring). The commerce
power has “outer limits,” Lopez, 514 U.S. at 557, 115 S. Ct. at 1628, and § 247, as
a regulation of noneconomic criminal activity, falls outside of those limits.
III. Conclusion
While the burning of a church, “is offensive to the moral sense, . . . that fact
must not close the eye to the question whether the power to punish therefor is
delegated to Congress or is reserved to the State.” Keller, 213 U.S. at 144, 29 S.
Ct. at 471. In construing the Commerce Clause, we are charged with upholding the
Constitution, implicit in which is a federalist design. Here, by failing to appreciate
the significance of federalism, the majority has misconstrued the limits of the
Commerce Clause and allowed a federal statute to regulate intrastate noneconomic
conduct in an area of law traditionally protected from federal intrusion. Thus, the
majority has burned yet another bridge to our federalist foundations. Because I
believe that this incursion into State police powers is not sanctioned by the
Constitution, I respectfully dissent.
75
HILL, Circuit Judge, dissenting, in which BIRCH, Circuit Judge, joins:
Under the authority of the Commerce Clause, Congress may regulate the
channels and instrumentalities of interstate commerce, as well as certain activities
affecting commerce. United States v. Lopez, 514 U.S. 549, 558-59 (1995). The
instrumentalities of interstate commerce are those “persons or things” that travel in
interstate commerce. Id. The channels of interstate commerce include all modes
of interstate or foreign movement of commerce. Id. Thus, the instrumentalities
and channels of interstate commerce encompass the concept of movement of
commerce across state lines, and there has never been any serious question about
Congress’ authority to regulate and protect them. Id.
Congress authority to regulate intrastate activities was not always
recognized by the Supreme Court. United States v. E.C. Knight Co., 156 U.S. 1, 12
(1895) (“Commerce succeeds to manufacture and is not part of it”). Later, the
Court recognized the necessity to protect interstate commerce from the burdens
and obstructions that might be imposed by intrastate activities that have a “close
and substantial relation” to it. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1937). Under such circumstances, the Court held, the regulation of intrastate
activities that “affect” interstate commerce is within Congress’ commerce power.
Id. at 37. Even purely local activities, such as the wheat grown for personal
76
consumption in Wickard v. Filburn, 317 U.S. 111 (1942), although not in interstate
commerce, may be regulated if the absence of regulation would undercut a larger
regulatory scheme affecting interstate commerce. Lopez, 514 U.S. at 561.
The effect on interstate commerce of such an intrastate activity, however,
must be substantial in order for the commerce power to reach it. Id. See also
United States v. Robertson, 514 U.S. 669, 671 (1995) (“[t]he ‘affecting commerce’
test . . . define[s] the extent of Congress’s power over purely intra state
commercial activities that nonetheless have substantial inter state effects”)
(emphasis in original)). Thus, Congress’ power to regulate intrastate activities is
more limited than is its power to regulate the instrumentalities and channels of
interstate commerce. Whereas Congress may regulate any instrumentality or
channel of interstate commerce, the Constitution permits Congress to regulate only
those intrastate activities that have a substantial effect on interstate commerce.
Furthermore, such regulation of intrastate activities has always been limited
to economic activities. In United States v. Morrison, 529 U.S. 598, 613 (2000), the
Court observed:
Thus far in our Nation’s history our cases have upheld Commerce
Clause regulation of intrastate activity only where that activity is
economic in nature. . . . A review of Commerce Clause case law
demonstrates that in those cases where we have sustained federal
regulation of intrastate activity based upon the activity’s substantial
effects on interstate commerce, the activity in question has been some
77
sort of economic endeavor.
(emphasis added) (citing Lopez, 519 U.S. at 559-60). Thus, Congress’ power to
regulate intrastate activities has always been limited to economic activities that
have a substantial effect on interstate commerce.
To hold otherwise, the Court has observed, would “convert congressional
authority under the Commerce Clause to a general police power of the sort retained
by the States.” Lopez, 514 U.S. at 567. This the Constitution does not permit. The
Court has long recognized that:
The Constitution requires a distinction between what is truly national
and what is truly local. In recognizing this fact we preserve one of the
few principles that has been consistent since the [Commerce] Clause
was adopted. 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.
Morrison, 529 U.S. at 617 (internal citations and quotations omitted). The
Constitution withholds from Congress a general police power, and the Court has
always “rejected readings of the Commerce Clause and the scope of federal power
that would permit Congress to exercise [one].” Lopez, 514 U.S. at 596-97
(Thomas, J., concurring).
Congress has, nonetheless, frequently sought to exercise such a general
78
police power. Lacking authority to punish the crime itself, Congress used its
power to keep the channels and the instrumentalities of interstate commerce safe to
prohibit travel in interstate commerce to commit the crime.1 But, in these statutes,
the travel is the offense, not the common-law crime itself.
Section 247, however, is typical of a number of more recent statutes that
seek to use the commerce power “to cast [a] remedy over a wider, and more purely
intrastate, body of violent crime.” Morrison at 613 (emphasis added). These
statutes prohibit the activity of the violent crime itself, making it an offense against
the United States to carry a gun in a school zone, commit arson, batter a spouse, or
burn a church. See 18 U.S.C. §§ 922(q)(1)(A), 844, 13981, and 247. The Supreme
Court has uniformly rejected these attempts to transform the commerce power into
a general police power over intrastate crime.
In Lopez, the Court reviewed a congressional prohibition on possession of a
firearm in a school zone. The Court held that because the knowing possession of a
1
There are numerous federal statutes which do, explicitly, criminalize travel in interstate
commerce in order to commit a traditional common-law crime. See, e.g., 18 U.S.C. § 43
(traveling to engage in animal terrorism); 18 U.S.C. § 228 (traveling to avoid paying child
support); 18 U.S.C. § 1073 (flight to avoid prosecution); 19 U.S.C. § 1074 (flight to avoid
prosecution for destroying property); 18 U.S.C. § 1231 (interstate travel to engage in
strikebreaking); 18 U.S.C. § 1958 (traveling to engage in murder for hire); 18 U.S.C. § 2101
(traveling to cause a riot); 18 U.S.C. § 2118 (traveling to engage in robbery involving controlled
substances); 18 U.S.C. § 2261 (traveling to commit interstate domestic violence); 18 U.S.C. §
2261A (traveling to commit interstate stalking); 18 U.S.C. § 2262 (traveling to violate domestic
protective order); 18 U.S.C. § 2423 (interstate travel to provide minors for sex). These statutes
regulate crime by focusing on the criminal’s movement in the channels of interstate commerce.
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firearm in a school zone does not substantially affect interstate commerce, the
Congress exceeded its authority under the Commerce Clause in making it a federal
crime. Id. at 551.
Similarly, in Morrison, the Court examined Congress’ attempt to provide a
federal remedy for domestic violence. The Court first noted that domestic violence
is not an economic activity. 529 U.S. at 610. Stating that “a fair reading of Lopez
shows that the non-economic, criminal nature of the conduct at issue was central to
our decision [that the statute was unconstitutional] in that case,” the Court held that
Congress’ attempt to regulate the non-economic, purely local crime of domestic
violence exceeded its authority under the Commerce Clause. Id.2
In United States v. Jones, 529 U.S. 848 (2000), the Court was called upon to
interpret the federal omnibus arson statute, 18 U.S.C. § 844, which extends federal
jurisdiction over the burning of any real property “used in interstate or foreign
commerce or in any activity affecting interstate or foreign commerce.” The
government, seeking to prosecute the arson of an owner-occupied, private
residence, argued that Congress’ use of the words “affecting” interstate commerce
2
The Court approved sub silentio a different provision of the Violence Against Women
Act when it noted that Section 40221(a) of the Act, which prohibits travel to commit spousal
abuse, has been uniformly upheld by the Courts of Appeals as an appropriate exercise of
Congress’ Commerce Clause authority to protect the use of the channels of interstate commerce.
529 U.S. at 613 n.5.
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signaled Congress’ intent to exercise its full authority under the Commerce Clause.
The Court, however, rejected the notion that the mere recitation of such words
rendered the statute immune from judicial review, and proceeded to examine the
quality of the connections between the residence and interstate commerce – the
receipt of natural gas, a mortgage and an insurance policy from out-of-state. The
Court rejected these connections as too de minimis, holding that § 844 “does not
reach an owner-occupied residence that is not used for any commercial purpose.”
Id. at 857. The Court concluded that:
“[g]iven the concerns brought to the fore in Lopez, it is appropriate to
avoid the constitutional question that would arise were we to read §
844(i) to render the ‘traditionally local criminal conduct’ in which
petitioner Jones engaged ‘a matter for federal enforcement.’” . . .
Section 844 is not soundly read to make virtually every arson in the
country a federal offense.
Id. at 858.3
Section 247 also seeks to regulate a common-law state crime – church
burning. Therefore, I believe our inquiry into Congress’ attempt to regulate it
should proceed exactly as did the Supreme Court’s in Lopez, Morrison, and Jones.
We should examine the intrastate, non-economic activity of church burning to
determine whether that activity may be regulated because it substantially affects
3
In construing the statute not to reach the arson of a purely private residence, the court
avoided Jones’ constitutional claim that criminalization of such an arson is beyond the
commerce power of Congress. 529 U.S. at 852.
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interstate commerce.4
The en banc court’s analysis of § 247, however, does not proceed in this
way. Its analysis focuses not on the authority of Congress to regulate the intrastate
activity of church burning, but rather on the meaning of the jurisdictional hook
requiring that the offense be “in or affect” interstate commerce. The majority
asserts that by criminalizing the church arson that is “in” interstate commerce,
Congress intended to invoke its “fullest authority” under the Commerce Clause,
including its power to protect the channels and instrumentalities of commerce.
Therefore, the majority concludes, § 247 criminalizes the use of the channels and
instrumentalities of commerce in connection with a church arson. Thus, church
arson is a federal crime if the church burner travels in interstate commerce in order
to burn a church.5
I find nothing to support this interpretation of § 247. The statute defines the
offense as the arson, not travel to commit the arson, and the use of the word “in”
4
Recently a panel of this court approached yet another congressional attempt to federalize
a state crime – intrastate possession of child pornography – in exactly this way, holding that it
too exceeded Congress’ authority because the connection between the intrastate possession of
pornography and interstate commerce was too attenuated to justify federal jurisdiction. United
States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004).
5
Since the majority clearly requires such travel or the use of the instrumentalities for
federal jurisdiction to attach, the statute will not apply to the purely local arsonist who burns the
church down the street, as Congress clearly intended by its 1996 amendment deleting the travel
requirement.
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does not change that. The statute is Congress’ attempt to punish the intrastate
activity of church burning, not the use of the interstate highway to reach the
church.
Nor can the recitation of “in or affecting” create federal jurisdiction where
none is constitutionally permitted. Merely because Congress chooses to prohibit
the church arson that is “in” interstate commerce does not mean that there is such a
crime.6 Whether church burning substantially “affects” interstate commerce is a
highly problematic issue the majority does not even reach.7
I do agree, however, with the en banc court’s conclusion that Congress
intended to invoke its full power under the Commerce Clause in prohibiting church
arson. In attempting to regulate a purely local activity, such as Wickard’s wheat or
church arson, Congress reaches the outer limits of its commerce power and invokes
its full authority not because it may, but because it must. “In or affecting,”
however, is not a shibboleth that, having been correctly pronounced, opens the
door to federal prosecution. As Lopez, Morrison, and Jones have made clear, no
jurisdictional hook, nor any mantric invocation by Congress of its “fullest
6
Similarly, “[s]imply because Congress may conclude that a particular activity
substantially affects interstate commerce does not necessarily make it so.” Lopez, 514 U.S. at
557 n. 2.
7
In the vacated opinion in this case, the panel held that Ballinger’s crimes did not
substantially affect interstate commerce. 312 F.3d 1264 (11th Cir. 2002).
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authority under the Commerce Clause” can establish federal jurisdiction over an
intrastate activity that judicial review determines does not have the constitutionally
required substantial effect on interstate commerce.8
Thus, I do not agree with the conclusion of the en banc court that § 247's
jurisdictional language transforms it from an attempt by Congress to push its
commerce power to the limit by punishing the purely local and non-economic
activity of church burning into an innocuous regulation of the channels or
instrumentalities of interstate commerce by prohibiting the travel to burn the
church. By collapsing the three Lopez categories of permissible regulation of
commerce into one, all-purpose category that permits regulation of even purely
local non-economic activities – such as violent crime – if someone or something
associated with the activity moves in the channels or utilizes the instrumentalities
of interstate commerce prior to the activity, the en banc court obliterates the
Supreme Court’s careful distinction between Congress’ plenary power over the
channels and instrumentalities of commerce, and Congress’ much more limited
power over intrastate economic activities, which may be regulated only if the local
activity itself has a substantial effect on interstate commerce.
8
The Court observed in Morrison, in response to the dissent, that “[u]nder our written
Constitution, however, the limitation of congressional authority is not solely a matter of
legislative grace.” 529 U.S. at 616.
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Furthermore, interpreting “in or affects” to permit Congress to make the
local non-economic activity of church burning a federal crime merely because the
arsonist crosses state lines to commit the crime, permits too much. I cannot think
of any local activity that Congress could not regulate, nor any crime that Congress
could not federalize under such an expansive interpretation of the commerce
power. Cf. Morrison, 529 U.S. at 615 (“Indeed, if Congress may regulate gender-
motivated violence, it would be able to regulate murder or any other type of
violence since gender-motivated violence is a subset of all violent crime, is certain
to have lesser economic impacts than the larger class of which it is a part”).9 Such
an expansive interpretation would render null and void the Court’s decisions in
Lopez, Morrison, and Jones.
The underlying principles of federalism require that the reach of the
commerce power over intrastate activities be limited to those economic activities
that are in or, if purely local, substantially affect interstate commerce. Without
enforcing the limits imposed by the Constitution, according to the Court in
Morrison, “the concern that we expressed in Lopez that Congress might use the
Commerce Clause to completely obliterate the Constitution’s distinction between
9
Of course, the Congress may prohibit travel to commit the offense of church burning as
it has done in the other statutes mentioned above in n. 1. Then, however, the offense prohibited
is the travel.
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national and local authority seems well founded.” Id. at 615.
The view that the distinction between the national and the truly local must be
maintained is not a unanimous one in either the Congress or the Court.10 The
Morrison majority remarked that the dissent’s “remarkable theory [is] that the
commerce power is without judicially enforceable boundaries.” 529 U.S. at 608 n.
3. This theory, although rejected thus far in our constitutional history, remains a
seductive one when Congress, bent on doing good, does violence to the principles
of federalism that have supported our republic for over two hundred years.
Ballinger is an evil doer and the evil that he has done is reprehensible.
Because he has done these evil things, he is locked up and he should remain so.
But to keep him there, I fear that today we step over the historical line so carefully
drawn by the Court.
10
Or, for that matter, in the Executive. President Theodore Roosevelt once remarked that
“little permanent good can be done by any party which . . . fails to regard the State, like the
county or the municipality, as merely a convenient unit for local self-government.” Theodore
Roosevelt, An Autobiography 351 (Charles Scribner’s Sons 1924) (1913).
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United States v. Jay Scott Ballinger
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-01-10
Citations: 395 F.3d 1218
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