United States v. George Wilson

Before'CUMMINGS, BAUER and COFFEY, Judges. Circuit CUMMINGS, Judge. Circuit constitutionality At is the issue of Access to Clinic Entrances Act Freedom (“Access Act”), pro- pro- physical of facilities scribes obstruction viding reproductive health services. The dis- right passenger Act exceeded dant was rear held that the Access seat trict court legislate his arm Congress’s power to under both encased and handcuffed inside a pipe. 5 of the Four steel Clause Section Commerce States v. Wil teenth Amendment. United a.m., From 6:30 a.m. to 11:00 Milwaukee (E.D.Wis.1995). son, Every F.Supp. 621 880 firefighters hydraulic equipment, used blow court to address the issue has other federal torches, saws, pry and bars to extricate the constitutionality Access upheld the of the time, During defendants. two defen-

Act, including two circuit courts. American police firefighters dants told officers and Reno, (4th 642 League, Inc. v. 47 F.3d Life (the officers) assisting were in the mur- denied, Cir.1995), certiorari signs der of Anti-abortion babies. were dis- (1995); L.Ed.2d 19 133 Cheffer played During near the automobiles. the (11th Cir.1995).1 Reno, v. 55 F.3d 1517 We blockade, neither clinic staff members nor dis agree with these courts and reverse the patients building. could enter the The block- trict court’s decision. patients appoint- ade barred 12 who had ments between 7:00 a.m. 11:00 and a.m. from I. receiving scheduled abortions. 30, 1994, September On the United States Background charged intentionally six defendants with underlying agent An FBI attested to the interfering intimidating persons with and morning September facts. On the seeking provide reproductive and obtain defendants blockaded the entrances health services in violation of the Access Act. Health Care Cen- the Wisconsin Women’s charged Defendants were under Section Milwaukee, A located in Wisconsin. ter 248(a)(1) subjects of the which to crimi- Plymouth wedged automobile was into the penalties “by nal whoever force or threat of clinic, barring entry of the the doors front obstruction, by physical intentionally force or ingress preventing egress from and injures, intimidates or interferes or at- the clinic. Three defendants welded them- tempts injure, intimidate or interfere with Plymouth interlocking into the with an selves any person person because that is or has uрper body apparatus. steel The of one been, person inor order to intimidate such or protruded through a hole cut in defendant person any persons other class of and his lower the floor the automobile from, obtaining providing reproductive ground body was on the underneath the car. 248(a)(1). health services.” 18 U.S.C. door, press- A ear blocked the rear second ing against preventing ingress it and II. egress. The other three defendants welded Decision District Court positions themselves various The to dismiss the second car. One defendant was located defendants moved seat, charges, part the Access Act ex- the driver’s restrained a welded steel harness, Congress’s authority legislate. A confining device his head in a steel ceeded rejected by placing magistrate judge, the defen- was locked around his head federal jack pipe. an a car inside a hollow steel Anoth- dants’ motion in Order Recommenda- passen- cut in dated November 1994. On March er defendant was a hole tion floorboard, 16, 1995, rejected mag- ger-side body with his lower rest- the district court pavement upper body and his istrate’s recommendation and dismissed the on 248(a)(1) dryer. charges, holding confined inside an electric clothes His that Section head in a locked harness se- Access Act is “unconstitutional and void.” was restrained rejected F.Supp. Judge at 623. Randa cured around his throat. The third defen- 880 Reno, (W.D.La. 1994); F.Supp. following district courts have found the Cookv. 859 1008 Reno, 1994); Act to a constitutional exercise of Con Access 856 Council Coalition v. for Life gress's power: States v. (S.D.Cal.1994); Commerce Clause United F.Supp. 1422 United States v. Dinwiddie, (W.D.Mo.1995); F.Supp. 885 1299 White, (C.D.Cal.1995); F.Supp. United 1423 Hill, (N.D.Fla. F.Supp. United States v. Lucero, (D.Kan.1995). F.Supp. States Reno, 1994); (D.Ariz. Riely v. by Finally, rejected Congress’s finding legislative power asserted the court both bases scope Clause and Section Congress: problem the Commerce is national Amendment. beyond ability 5 of the Fourteenth of the states to control as question irrelevant to the whether the Access Clause, the court Under Commerce com- affects interstate congressional defer to a stated that it would merce. regulated activity affects inter- finding that a if there is a rational basis state commerce interpreted the ra- finding. The court III. logic that “if the tional basis test to mean

underlying stated connection to inter- Discussion provide a basis for state commerce would activity, logic regulating any human A. context of the Consti- not rational within the tution.” Id. at 626. Applying the rational We review a determination of the test, court found that the basis the district constitutionality of a federal statute de novo. justified Act could as an Access Shalala, (7th 235, Smith v. 5 F.3d 238 Cir. commerce.” Id. activity “affecting at 627 - 1993), denied, 114 certiorari categories (citing the third of three reached (1994). 1309, 127 L.Ed.2d 660 Our Clause as outlined Perez the Commerce jurisdiction premised on 28 U.S.C. 1291. States, 146, 1357, v. United 91 (1971)). Congress passed 28 L.Ed.2d 686 The court distilled the Access Act to address types “affecting blockades, three of activities commerce” campaign a nation-wide inva- precedent Supreme threats, based on Court sions, vandalism, and other violence compelled finding none of con- found that barring reproductive access to health facili- (1) stitutionality: activity trivial that under- 306,103d H.R.Rep. Cong., ties. No. 2d Sess. regulatory mines a national commercial (1993), 699, reprinted 6 in 1994 U.S.C.C.A.N. (2) scheme; activity commercial that affects 1,000 Congress 703. found that more than travel; that em- against providers repro- acts of violence ploys violent means to achieve an economic reported ductive health services were in the purpose. at 627-630. 1993, April in- United States from 1977 to arsons, cluding bombings, “at least 36 rely on The district court then declined to threats, assaults, kidnappings, death two congressional findings four to extend Su- ‘invasions,’ reasoning rely- 327 clinic and one murder.” preme precedent, Court addition, 6,000 any findings on of the four would be a more than blockades and oth- any basis for federal human disruptions reported er have been since 1977. First, activity. finding that clin- 6-7, abortion H.R.Rep. at 1994 U.S.C.C.AN. at 703- operate ics within the stream of interstate 704. commerce does not differentiate other human Congress found that state and local law aсtivities, because “all and all enti- persons agencies enforcement have failed to address operate ties within the stream of commerce.” effectively repro- the nationwide assault on Second,

Id. at 630. finding that some ductive health facilities and that local laws provide individuals cross state lines to vandalism, trespass, such as and assault have limited, given high obtain abortions is not proven inadequate problem. to address the Third, mobility society. Congress of our 10, 707; H.R.Rep. at 1994 U.S.C.C.A.N. at obstructing found access abortion 117,103d S.Rep. Cong., also No. 1st see Sess. clinics decreases the number of abortions (1993). 3,18-21 Federal law was also inade- performed negatively impacts and therefore quate. Supreme Prior to the Court’s deci- interstate commerce. The district court rea- Bray v. Alexandria Women’sHealth sion limitless, finding soned that this is also be- Clinic, Congress regulate it cause would allow (1993), enjoined L.Ed.2d 34 federal courts pur- that decreases the sale or goods, including shoplifting. pursuant to 42 specific chase of the conduct described above 103-259, 1985(3),2 remedy § 2. Bray appeal, denied a Pub.L. No. On but argues that injured by Government the district court persons under that statute rejecting erred in both constitutional bases of ser of access abortion-related obstruction congressional authority. Cong., Because we con H.R.Conf.Rep. No. 103d vices. (1994), clude that had under the reprinted in 1994 2d Sess. Clause, express opinion Commerce we no U.S.C.C.A.N. regarding the district court’s Fourteenth pro- Act to Congress enacted the Access Amendment discussion.4 safety public and health promote tect and penalties applies “by establishing criminal Federal violent, general analyzing certain threat- same framework for Com and civil remedies for challenges conduct merce Clause as the district court ening, obstructive destructive Congress may injure, intimidate or inter- this case. under that is intended persons seeking pro- catego to obtain or its commerce three broad fere with First, may regulate ries. reproductive health services.” Pub.L. the use of the vide (1994). 103-259, Second, pro- § 2 Thus the сhannels interstate commerce. No. against any- Congress may regulate protect penalties civil and criminal the in vides strumentalities of interstate one who: persons things or interstate (1) by by threat of force or force or though even the threat come from obstruction, injures, intentionally physical Third, Congress may intrastate activities. attempts or intimidates or interferes with regulate having those activities a substantial any injure, intimidate or interfere with relation to interstate commerce—those activ been, person person because that is or has substantially ities that affect interstate com person or or in order to intimidate such —— merce. United States v. U.S. person any persons other or class -, -, 1624, 1629-1630, 115 S.Ct. from, obtaining providing reproductive or * * * (1995); Perez, 131 L.Ed.2d 626 at U.S. services; health or 150, judiciary 91 S.Ct. at 1359-1360. The (3) intentionally damages destroys or independent inquiry an will make into the facility, attempts or property of a do constitutionality of a under statute the Com so, facility reproduc- provides such Clause, merce but the court will consider * * * services tive health findings, including congression congressional 248(a).3 — at-, findings. al committee U.S. However, category at 1631. three B. cases, Congress may “simply because con activity substantially charged particular clude that a The defendants under the Access arguing that Con- affects interstate commerce does not neces Act succeeded below -n. 2, 115 sarily at authority regulate activities make it so.” Id. gress lacked Virginia 2 (quoting at 1629 n. Hodel v. Sur affecting reproductive health services. Con- Inc., Ass’n, Mining Reclamation gress under the Com- & asserted face 311, 2352, 2374, 264, 101 S.Ct. 5 of the Four- U.S. merce Clause Section J., concurring (Rehnquist, to enact the Access Act. L.Ed.2d teenth Amendment 1985(3) proscribes depriving persons person's “Intimidate" freedom of movement.” 2. Section rights privileges. appre- place person or "to a in reasonable means bodily to him- or herself or to hension of harm key 3. The statute also defines several terms. "Physical obstruction” means “ren- another.” clinic, hospital, physician’s “Facility” includes "a egress dering impassable ingress a to or from office, facility provides reproductive other that facility rendering passage ... or to or from such ” “Reproductive health ser- health services.... facility unreasonably ... difficult or hazard- "reproductive pro- means health services vices” 248(e). ous." 18 clinic, office, hospital, physician’s vided in a medical, facility, surgical, other and includes can avoid the 4.We fail to see how the dissent counselling relating services to the or referral however, issue, since Amendment Fourteenth including reproductive system, human services legis- provides independent basis of preg- Section 5 an relating pregnancy or the termination of power. nancy.” lative “Interfere with” means "to restrict a commerce and that the activities Permitting Congress pro judgment)). bring proscribed would the Act the commerce of of its own claim the extent judicial facility review set out found principle targeted to a halt. violate the (1 Cranch) Madison, 5 Marbury acquire U.S. reproductive health facilities (1803). Therefore, “medicine, courts supplies, 2 L.Ed. 60 equipment, medical sur- a rational basis exists for will decide whether necessary gical and other medi- instruments regulated substan concluding that a States,” S.Rep. products ... other cal from tially interstate commerce. affects proscribed by the at and that the conduct alia, (citing, at 1629 inter 115 S.Ct. “the interstate commercial activ- Act burdens Hodel, 276-280, at at including providers, health care ities of 2360-2361). equip- purchase and lease of facilities and ment, services, employment goods sale of agree with the district court We income, personnel generation chan Act does not the Access medicine, supplies, purchase of medical sur- within of interstate commerce nels gical supplies instruments and other from However, category.5 meaning of the first at other states.” H.R.Conf. disagree court’s reason we with the district Blockading prevents U.S.C.C.A.N. at 724. category and hold that ing under the third providers rendering, from health care regula as a the Access Act is constitutional patients receiving, the commercial ser- affects interstate comm tion 7; S.Rep. at vices offered at such facilities. Finally, although we decline to de erce.6 H.R.Rep. 1994 U.S.C.C.A.N. within the second cide whether the Act fits category, applicability category of that finding reproductive health facili- than warrants more careful consideration engaged in ties are interstate commerce district court. that offered .the obviously pur- rational. Such facilities will chase, use, goods and distribute from other 1. “in places This the facilities com- States. Congress findings made four basic re concept generally that merce” as under- garding regulat nature of the the interstate — Robertson, stood. See United States v. the Access Act. These ed activities under -, 1732, 1733, 115 S.Ct. 131 U.S. rational, findings plainly and the are first (1995) (citing v. L.Ed.2d 714 United States regulated activities’ substan three reveal Indus., Bldg. 422 American Maintenance tial relation to interstate commerce. While 271, 283, 2150, 2158, 95 S.Ct. 45 L.Ed.2d U.S. finding independently the fourth does (1975) (“To engaged ... 177 ‘in commerce’ test, satisfy it serves the substantial effects directly engaged corporation must itself be prob to confirm the interstate nature of the distribution, acquisition production, in the Congress sought to address in the Ac lem goods or services in interstate com- cess Act. merce.”); Co., Paving Corp. Copp Oil v. Gulf 186, 195, 392, 398-399, First, 42 Congress reproductive 419 95 found that (1974)). operate health facilities within the stream of L.Ed.2d 378 Obstruction of those category agree 2360. We with the Fourth Circuit that the 5. The first is limited to misuse of channels of interstate commerce. Per- ez, penalties are de- Access Act's criminal and civil Examples ship- 402 U.S. at 150. include violent, signed to deter obstructive behavior and 2314, goods, seq.; seq.; § ment of stolen kidnapped persons, et 18 reasonably adapted permissible to ends: are five 1201, § et 18 U.S.C. “(1) goods protecting the free flow of and ser- 2421, seq.; guns, prostitutes, 18 U.S.C. et and commerce, (2) protecting patients vices Wilson, 922, seq. See et reproductive their use of the lawful services of F.Supp. at 627. facilities, (3) protecting health women when right their constitutional to choose an exercise finding Congress rationally 6. In addition to that abortion, (4) protecting safety reproductive regulates concluded thаt the Access Act activities providers, protecting repro- related to interstate we health care Congress regulatory physical that chose a means also find ductive health care facilities from de- reasonably adapted permissible to a end. Both damage.” League, American struction Life findings required to hold the statute constitu- 647. F.3d at Hodel, 101 S.Ct. at tional. 452 U.S. facilities, proscribes, Again, court the Access Act district erred fail- essentially brings apply the interstate commercial the substantial effects test facility halt. targeted Congress’s finding. to a If individuals travel in- authority Congress under the Commerce provide has terstate more often to seek and re- proscribe interferes productive Clause to health services than to bowl or to camp, United States v. Congress’s regulate may interstate commerce. (12 Pet.) Coombs, 72, 78, very 9 L.Ed. 37 U.S. well reach health facilities but not bowl- (1838). ing alleys campgrounds: ap- courts must ply the substantial effects test to draw the Congress’s court dismissed The district proper distinction. of the obvious—a finding as a statement justify any reg limitless rationale that would finding A rational basis exists for ulation, persons and all entities because “all seeking repro- interstate travel individuals of commerce.” operate within the stream substantial, ductive health services is By rejecting Congress’s at 630. obstructing those individuals therefore hand, court erred finding out of the district substantially affects interstate failing regulated to address whether noted most facilities are locat- substantially affect interstate com activities percent ed urban centers and that Laughlin merce. Since NLRB Jones & of all U.S. counties have facilities. Thus Corp., 81 L.Ed. Steel “rural clinics and doctors have become the (1937),repudiated test the direct/indirect preferred targets for abortion foes because Clause, the under the Commerce substantial single provider effectively elimination of that congres limit effects test has been used to many eliminates service women.” authority. change largely This was do sional H.R.Rep. at 1994 U.S.C.C.A.N. at 705. which, economy in in to the new national Further, Congress noted thаt clinic owners deed, persons operate all entities all shortages willing perform face of doctors within the stream of commerce. See Thus, bowling abortions. Id. unlike at 1628. Thus activities, unique scarcity other of certain question must ask the additional courts reproductive health services necessitates the relation to interstate commerce whether addition, substantial interstate travel. fur is substantial. The district court erred recognized several courts have the substan- by giving Congress’s ther no deference reproductive tial interstate travel involved in only for a rational finding. Courts ‍​‌​‌‌​​‌‌​‌​​‌‌‌​​‌​‌‌‌​​​​‌‌​​​‌‌‌​​​​​‌​​​​‌‌‌‍need look 274, Bray, health care. See 506 at 113 Hodel, 276, basis. 452 U.S. at 101 S.Ct. at (“Be (Stevens, J., dissenting) at 762 essentially 2360. The district court convert percent patients tween 20 and 30 of the at a ed the rational basis test into less deferen Virginia targeted clinic in were from out of plainly rational that tial standard. Here it is patients at of State and over half of the one engaged in reproductive health facilities are Maryland clinics were interstate travel of interstate commerce and that obstruction ers.”); Opera Org. National Women v. for brings halt. such facilities the commerce to a Rescue, 1483, F.Supp. 726 tion 1489 (E.D.Va.1989) (“[Substantial Second, Congress numbers of [abortion] found that individuals Washington Metropolitan provide repro- to obtain and clinics in the area travel interstate clinics.”) (sub “[M]any pa- health travel interstate to reach the ductive services: omitted); history pro- sequent see also New York [abortion tients who seek services Terry, Org. v. 886 engage in interstate commerce State Nat’l Women viders] (2d Cir.1989), 1339, de traveling from one state to obtain abor- F.2d 1360 certiorari [the 2206, 31; nied, 947, 109 S.Rep. in at tion another.” see services] 10, (1990); Health Care H.R.Rep. at 1994 U.S.C.C.A.N. at L.Ed.2d 532 Women’s also Rescue, F.Supp. unpersuaded by Operation 707. The district court was Servs. (D.Kan.1991), mobility: reversed on other finding, given society’s high “If 266-267 this (10th Cir.1994); grounds, 24 F.3d Mar people go golfing, lines to some cross state Edwards, F.Supp. bowling, camping shopping, Congress garet can S. v. (E.D.La.1980). regulate F.Supp. at these activities?” 880 again asking the relevant Third, that obstruction of court erred not Congress found reproduc availability question of obstruction of the overall facilities decreases —whether health facilities affects in health services nationwide. tive reproductive testimony it commerce. A mere decrease in the Congress from which con- terstate heard purchase goods of or services would purpose avowed of this con- sale cluded that “the course, qualify, of but the district court ... abortion services” not duct is to eliminate “by closing might intimidat- to consider that the Access Act altogether clinics and failed S.Rep. at 11. A of address a substantial threat to commerce. ing doctors.” leader Indeed, Congress pur- Congress upon his relied Operation Rescue told evidence stopped ... to the pose “to see abortion clinics reveals substantial threat national was stated, down,” reproductive market. It and another leader “We health services closed market, get changed laws or be able to this threat to a national which Con minds, declining change people’s gress ... if there is no found to be scarce and but abortions, availability, distinguishes Congress’s willing there are no au one to conduct thority prob S.Rep. Congress at 11. found this case from its abortions.” authority regulate, campaign succeeding: was able lack of for exam evidence (cited court, ple, shoplifting by the district “This conduct has forced climes to close.... providers, F.Supp. it It taken a severe toll on at 631 n. “reduces has also goods”7). ceasing supply into to offer abor- of intimidated some services, already to an tion and contributed Fourth, Congress that obstruction of found shortage qualified provid- acute abortion problem is a facilities nationwide is be- above, only S.Rep. at 14. As stated ers.” yond the control of individual states. Con- percent reproductive all counties of U.S. have gress testimony organizations heard like facilities and clinic owners face short- health Operation engage Rescue in national cam- ages willing perform abortions. doctors paigns to close abortion cliniсs. H.R.Rep. at 1994 U.S.C.C.A.N. at 705. examples campaigns target- cited of national Wichita, Buffalo, rejected finding, The district court ed at clinics Dobbs Fer- stating justify giving Congress ry, it at clinic that would in North Dakota: unprecedented power regulate any people “to came from across “Hundreds arguably country engaged trespass human decreases the acts purchase specific goods sale or or ser- obstruction that overwhelmed local law en- F.Supp. ability respond.” H.R.Rep. vices[.]” 880 631. The district forcement’s test, examples focusing rational basis 7. The district court's other commerce. Thus the —use busses, dieting, breast-feeding, as does on the substantial nature of the relation cabs and rentals, video case, software, computers computer to interstate commerce in an individual generality. operates at a much lower level of at 631 n. 17—suffer from the same infirmity: Congress’s the court assumes that Congress's findings The dissent's review of finding justifies regulate repro- its same vein as the lower court's review. ductive health facilities because obstruction of inappropriately non-deferential and result- merely availability the of re- facilities decreases analysis of the oriented nature dissent's is re- productive assumption health services. is This that, by suggestion vealed its because the dissent wrong. Congress's authority is based on evi- substantially believes the Access Act is not relat- dence that obstruction of facilities commerce, Congress’s findings ed to interstate reproductive decreases the market for health ser- greater scrutiny should be reviewed than application vices. The district court's of its un- by required the rational basis test: "I realize that derstanding of the rational basis test—that a find- analysis congressional of the record underlying ing rejected logic must be “if the scrutiny,' criticized as 'strict and not the rational stated connection to interstate commerce would inquiry proper which is under the Com- basis provide regulating any However, a for human basis activi- pro- Clause. because the merce acts ty,” F.Supp. seriously (acts at 626—is flawed. It by of civil hibited disobedi- easy enough analyze finding, ence) to a as the meaningful by is dis- motivated no sense did, highest generality (as trict court at the level of at directed interstate commerce services are), applicable virtually every providers to find situation. of abortion sometimes I believe test, properly applied, findings, upon by supreme But the rational basis is relied our very requires legislative body majority, different: it courts to defer to Con- and should be gress case-by-case Congress's carefully accepted on a basis when evaluated and not at face val- (Dissent, 697-698). pp. findings reveal a substantial relation to interstate ue.” preme recent decision in 7, 1994 at 704. found Court’s su U.S.C.C.A.N. blockading typically involves hun pra, compels Despite clinic a different result. de that thousands, trespass dreds, people efforts, or even Lopez find fendants’ best we that is entrances, interfering with ing, blocking easily distinguished In from this case. Lo Id.; providers. of health care the efforts pez, invalidated the Gun-Free during court noted that a S.Rep. at 7. One Act School Zones which made it a seeking activists to “rescue” anti-abortion any knowingly “for federal offense individual clinic, perhaps “hundreds and thou close a possess place to a firearm at a that persons came to sands of Wichita knows, individual or has reasonable cause to activity.” engage in such across the nation believe, zone.” school Cooley, United States 922(q)(l)(A). Congress findings made no (D.Kan.1992), grounds, 1 vacated on other power relevant to its Commerce Clause Cir.1993) (further (10th subsequent F.3d 985 enacting the Gun-Free School Zones Act. omitted). history Congress also heard exten particular, it was conceded that neither testimony inability unwill about the sive legislative history nor the statute its con respond ingness of local law enforcement any findings tained about the effects on in systematic effectively to “the and nationwide gun possession terstate commerce of near against being waged health assault that schools. at 1631. patients.” S.Rep. at providers care The Court held the statute unconstitutional 21; 6,1994 at 703. H.R.Rep. at U.S.C.C.A.N. exceeding Congress’s Commerce Clause court that this agree with the district We it did not involve commerce alone, justify finding, standing Con does enterprise other economic within Act. As gress’s power to enact the Access meaning by prior established easelaw noted, enough it is not the district court jurisdictional because it contained no element scope problem is national or that local ensure, case-by-case, regulated problem.8 are unable to control the officials commerce. Id. at affected interstate Rather, F.Supp. at the activities 115 S.Ct. at 1630-1631. substantially affect interstate com must Congress’s finding agree merce. Thus the We with the Eleventh Circuit that Act, reproductive health facilities are problems at unlike the the Access Gun-Free School scope little to relevant regulates activity— national adds Zones a commercial court, however, inquiry. The district failed provision reproductive health services. finding: Congress’s crux of to note the Cheffer, Reproductive 55 F.3d 1520-1521. problem finding is not that the essence engage health clinics in interstate commerce scope, is national in but that the effort to dispensing goods by purchasing, using, and orga reproductive close health facilities is that have travelled interstate words, on a national scale. In other nized own- Their commercial also includes addressing prob Congress was an interstate staff, leasing space, employing ing and office multistate, prob lem rather than a intrastate generating reg- income. The Access Nonetheless, this fact adds little lem. while activity by preventing ulates this commercial Congress’s findings, help other it does Moreover, Congress’s find- its obstruction. sought Congress properly confirm that ings reveal that there exists a substantial truly problem by enact address a reproductive interstate market health Access Act. Largely scarcity of services. because of the services, seeking certain women health ser- findings the Ac- These demonstrate providers travel vices and of such services Congress’s cess Act falls well within Com- helps interstate. The Access Act ensurе that power to activities merce Clause engage to in this these individuals are able that affect interstate commerce. however, activity. The Act argue, that the Su- interstate commercial Defendants above, inability unwillingness action. stated of local officials cials amounts to state As 8. The give Congress respond effectively might though, to we do not reach the Fourteenth Amend- legislate 5 under Section Four- ment issue in this case. the conduct of local offi- teenth Amendment if 684 persons upsets it the relation interference with criminalizes prohibits

its terms jurisdict federal and state criminal engaging commercial between 248(a)(1) 3, 115 at n. (prohibit- ions.10 Id. at-n. S.Ct. 1631 activity. See however, obtaining question ... not call into “persons did interference with services”). principle Congress reproductive health the well-established that providing may regulate though that con conduct even distinguishable because in Lopez is also already duct violates state law: Act, enacting unlike the Gun- the Access rejected long ago sugges- The Court Act, spe- Congress made Free School Zones Congress that invades areas reserved tion findings regarding the substantial effect cific by the Tenth Amendment to the States Although the Su- on interstate commerce. authority simply because exercises its Congress is nor- preme Court stated that in a under the Commerce Clause manner mally required specific find- to make displaces the States’ exercise their — ings, at 1631 U.S. at 115 S.Ct. police powers.... It a radical [ ] would Perez, 156, (citing at 91 S.Ct. at U.S. long-established departure precedent 1362), congressional findings it noted that for this Court to hold that the Tenth helpful it is not “visible to would be when Congress prohibits Amendment from dis- eye” question the naked that the placing police power regulating laws substantially affects interstate activity. private at-, easy at 1632. It is Id. S.Ct. findings enough imagine congressional Hodel, 291-292, 101 2368; 452 U.S. S.Ct. that, rational, if found could have made Lo- Culbert, also see United States U.S. very Hypothetically, pez a different case. 371, 379, 1112, 1116-1117, 98 S.Ct. Congress might produced reliable data have (1978) (rejecting L.Ed.2d 349 concern guns showing possession closed down Cоngress disturbed federal-state balance and, result, 20% of urban schools as a low Congress clearly where intended to criminal citizenry productivity among the in certain law). already ize criminal under state conduct regions hampered point commerce. The Second, argue defendants that the Access congressional findings matter. Because Act, Act, Zones like Gun-Free School numerous, Congress specific findings made regulates only activity pro- noncommercial — Act, regarding the Access the courts are not testing at climes. The district abortion court imagine Lopez regu- left —as —how argument: Congress invoked the same lated activities affect interstate commerce. impermissibly regulating private conduct specific argu Defendants make several that affects commercial entities rather than regarding applicability Lopez. commercial entities themselves. 880 ments Only propo- two of defendants’ contentions warrant at 628. There is no for the First, they argue Congress’s power discussion.9 that the Ac sition that extends Act, cess like the Gun-Free School Zones of commercial entities. To the contrary, upheld “is a criminal statute that its terms courts have numerous stat- with‘commerce’_” nothing regulate private has to do conduct that af- utes which at 1630-1631. fects commercial entities or commercial ac- possess tivity. example, Lopez The Court in noted that States For Russell v. United States, 858, 2455, primary authority defining enforcing for (1985), law, upheld criminal L.Ed.2d 829 a conviction un- and that when dissent, argued, example, Lopez Justice 9. Defendants have for Thomas's Powell's dissent legislators enacting Auth., the Access Act were biased in Garcia v. San Antonio Metro. Transit against opponents assuming of abortion. Even 469 U.S. 105 S.Ct. 83 L.Ed.2d 1016 correct, defendants are the assertion is not rele (1985), among and Federalist No. others. 45— inquiry. vant Clause See Ho Commerce may rely That the Seventh Circuit on these au- del, 2360; 452 U.S. at 101 S.Ct. at Heart of ignore binding a host of Commerce thorities Motel, States, Atlanta Inc. v. United thinking employed is wishful Clause cases 257-258, 348, 357-58, 13 L.Ed.2d 258. purpose inexorably achieving preferred re- federalism, defining sult. In the contours of this disruption 10. The dissent makes muсh of the balance, writing relying on Justice Court is not on a clean slate. federal/state

685 dissent, 844(i), interpretation. penalizes a Unlike the which der 18 U.S.C. destroys by fire or damages change Court not read such a dramatic person who will activity any explosives any property by selectively used relying into the law on Su- Cheffer, affecting commerce. See plucked preme Court statements from their 6, examples. n. for other 55 F.3d at 1520 context. Lopez as The mischaracterizes dissent alleged Aside similarities between only regu-

holding types “that two of federal the Access Act and the Gun-Free School may justified grounds on the that a lation be Act, Lopez Zones defendants claim that activity ‘substantially affects inter- regulated change worked a fundamental in Commerce (1) commerce’ federal criminal stat- jurisprudence. apparent Clause The dissent element, jurisdictional include a utes that ly agrees. Lopez significant is no doubt as ensuring proscribed that conduct sub- one of the cases to hold that commerce; stantially affects interstate exceeded its Commerce Clause regulations that reach economic Poultry Corp. since A.L.A. Schechter v. Unit substantially affects interstate com- States, 495, 837, ed 295 U.S. 55 S.Ct. 79 way Lopez merce. In no such did delineate (1935), wage L.Ed. 1570 struck down federal discussing test. the substantial effects regulations. Supreme and hour But jurisdictional Lopez, the lack of a element reaffirmed, overturned, Court rather than simply imply did not state or the Court century previous half of Commerce an ele- all criminal statutes must have such precedent Lopez. Clause As the Court’s ment, or that all statutes with such an ele- tracing juris detailed of Commerce Clause constitutional, or that ment would be concedes, prudence readily foundation per an se statute without such element Poultry cases like Schechter activities —that — at -, unconstitutional. 115 S.Ct. U.S. affecting directly interstate commerce are context, simply at 1631. Read the Court Congress’s power, within but activities affect Zones stated that the Gun-Free School only indirectly interstate commerce Bass, v. unlike the statute United States completely not —has eroded. Jones & 30 L.Ed.2d 488 U.S. S.Ct. Filburn, Laughlin, supra; Wickard (1971), jurisdictional a element to “en lacks 111, 125, (expressly U.S. S.Ct. constitutionality, prereq fulfill a sure” not to distinction). repudiating the direct/indirect — constitutionality. Lopez, uisite of See The test substantial effects now defines the at -, Regarding at 1631. power. limits of the commerce interpretation of the Lo the dissent’s second intact Because the left reading pez category, support we find no Laughlin progeny, Jones & and all its which Lopez permitting only eco- cases such includes as Wickard regulations nomic activities exclusive of obviously Lopez depar did not intend reach or affect economic activities. pre ture from established Commerce Clause language Court’s is dear substantial at -, cedent. See 115 S.Ct. at effects test is not so limited: it concluded J., (Kennedy, concurring). Lopez firearms statute could not “be sus primarily significant helps because it define upholding regulations tained under our cases Congress may regu the line between what of activities that arise out or are connected certainly late and what it not. The line transaction, with a commercial which viewed Ogden, 22 preexisted Lopez. See Gibbons v. aggregate, substantially in the inter affects (9 Wheat.) (1824): 1, 195, 6 L.Ed. 23 added). U.S. (emphasis Id. state commerce.” (“The powers] presupposes [of enumeration seemingly misreads the Court’s The dissent enumerated....”). Now, something Filburn, discussion of Wickard v. facing challenges Clause (1942), courts Commerce 82, 87 L.Ed. 122 Lopez long must reconcile line cases distinguished the Court on economic expan that construed the Commerce Clause delimiting grounds, as the substantial effects sively. Adhering Lopez preserving test, while at 1630- see id. 1631; however, sixty years precedent subsequent of Commerce Clause dis Court’s above) is, fortunately, not difficult in this case. (quoted cussion belies the dissent’s (5) commerce; assertions, in to persons Ac- tect interstate the Contrary to defendants’ commerce; and regulate things in interstate by of the line crossed Act falls far short cess (6) protect things in interstate commerce. to Lopez. Act in Zones the Gun-Free School places the Access Act with- The Government end, significant case —or Lopez is a In the First, subeategories. because in two of these states, a “landmark” —because dissent as the numbers of Congress found that substantial been done for decades. it did what had not interstate to seek abortion ser- women travel Supreme left intact and relied But the Court vices, 31, persons S.Rep. protects the Act jurispru- of Commerce Clause on decades (number four). Second, in travel interstate dissent, guided we are dence. Unlike goods Congress found that used and by Supreme Court did and did what the both by travel in interstate dispensed the facilities Lopez. not do in id., commerce, things protects Act in (number six). interstate commerce Supreme articulated the three Court the Access Act Although we conclude that Perez, categories power in of commerce regulates constitutional because is 150, at 1359-1360. The U.S. interstate com- affects support category in eases cited of the second merce, argues that Government clearly support Lopez in Perez and do not category qualifies under the second also subeategories derived from a literal read six instrumentality regulation of an of interstate issue, therefore, Lopez. The first The district court dismissed the precedent cited whether the category discussion. second without supports any or all of the six subcate argues F.Supp. at 627. The on Government i.e., gories, meant what it whether the Court erred, relying court appeal that the district Lopez regard in to the second said Lopez formulation of on the Court’s verbal category, category. support In of the second empow- category: “Congress is the second Cases, Shreveport cited Rate the Court has regulate protect to the instrumen- ered 833, 34 S.Ct. 58 L.Ed. 1341 U.S. commerce, persons or of interstate or talities States, (1914), Ry. v. United Southern commerce, though things even in interstate (1911), 32 S.Ct. 56 L.Ed. U.S. threat come from intrastate Perez, examples ‍​‌​‌‌​​‌‌​‌​​‌‌‌​​‌​‌‌‌​​​​‌‌​​​‌‌‌​​​​​‌​​​​‌‌‌‍two cited in the destruction at -, activity.” at 1629 32) (18 and thefts of аn aircraft U.S.C. brief). (emphasis added Government’s (18 shipments from interstate argues that the Access Act The Government —659). 115 S.Ct. at 1629. commerce, by protects persons in interstate Shreveport, rate re- prohibiting upheld interference with individuals be the Court travelling obtaining providing repro on railroads between cause strictions services, things though the restric- ductive health inter Texas and Louisiana even commerce, effectively by prohibiting abrogated rates set for intra- state obstruction tions travel, goods holding Congress’s “author- prevents used and commerce by reproductive ity, extending to these interstate carriers as dispensed health facilities. Applicability category warrants instruments of interstate neces- of the second sarily right to control their given than that embraces the more careful consideration having such a close operations court. all matters the district traffic and substantial relation to interstate persuasive argument is The Government’s appropriate to that the control is essential Lopez’s if verbal formulation of the second traffic_” security of that 234 U.S. at dicta, category, essentially interpreted lit- Shreveport thus in- 34 S.Ct. at 836. such, legis- erally. Congress could enact As instrumentality only regulation of an volved that affects intrastate threats inter- lation one). (number travel of interstate (1) subcategories: state commerce six Railway, upheld of interstate In Southern the Court regulate the instrumentalities Acts, (2) though commerce; Safety Appliance even protect instrumentali- (3) commerce; moving in in- apply Acts would to railroads of interstate ties commerce; pro- and intrastate traffic. The rationale terstate persons therefore, protection holding per- was on an affirmative is whether the of the based for things there sons and under following question: “Is the Access Act is answer to the analogous protection persons or connection to the of or direct relation and such a close traffic, things 32, in Railway, § when mov- Southern the two classes of U.S.C. between railroad, § it as to make and 18 U.S.C. 659. ing over the same safety traf- of the interstate certain that persons The Government must show that employed in its those who are fic and of seeking provide reproductive to obtain or promoted in a real or will be movement health services are “in interstate commerce” require- applying the substantial sense in the same manner that the railroad work- in acts to vehicles used [both ments of these Railway in pas- ers Southern and the airline traffic]?” intrastate interstate and sengers protected by § “in are upheld thus at 4. The Acts at 32 S.Ct. above, interstate commerce.” As stated of interstate com- protected instrumentalities Congress’s there is a rational basis for find- (the cars), people in interstate merce railroad ing that a number of substantial women trav- (railroad workers), things in and commerce reproductive for el interstate health services. (numbers two, (cargo) interstate commerce Further, no makes difference that the Ac- six). four, and primarily protects persons in cess intra- state Finally, the Perez Court cited two federal commerce. U.S. at (Congress may regulations regulate of instrumentalities of 115 S.Ct. at 1626 in statutes as prohibit- category, though commerce. The statute the third “even the threat interstate activities.”). aircraft, 32, may only § of an 18 U.S.C. come from intrastate destruction believe, however, instrumentality protects protection an of interstate com- We of (the airplane), people persons examples necessarily in in merce interstate these is tied (passengers), things regulation instrumentality and in inter- of an of inter commerce (numbers two, four, (cargo) state like a railroad car or an state commerce six). forbidding airplane. protection persons thefts from of in both and The statute justification shipments, pro- examples is a subordinate interstate 18 U.S.C. of extends, only things Congress’s power, clearly tects interstate commerce six). (number justification, without need of further regulation protection and of railroad and cars sum, subcategories all but three and airplanes travelling interstate. Under examples appear fivе in the Court’s of cate Act, however, Access the Government is gory subcategories two Because those cases. argue protection persons of forced is here,11 not at issue we find that primary justification Congress’s pow reading Lopez’s literal Government’s from er. Without further clarification category plausible. two is characterization Court, Supreme pro we decline to hold that category The defendants’ contention that two persons in can tection of interstate travel inapplicable Access Act does because the congressional source of authori exclusive instrumentality an of interstate ty to enact the Access Act.12 ignores language of Perez and commerce category contrary, protection things Lopez that includes within two the On the clearly persons things. commerce is not so tied to protection of As demon above, instrumentality. Congress language “per regulation of an strated inclusion of goods in things” likely prece based on has criminalized the theft of inter- sons and was issue, travel, including goods from a happenstance. The theft of dent —not second where, here, Regulating persons things in commerce from the there conceptually protecting precedent regarding not be distinct from to consult the lim- is little persons things in category its of two cases and resolution irrel- disposition to the of this case. Given the evant course, analysis, collapses protec- 12. This category argument two Government’s under subcategoiy tion-of-persons back into the sub- argument, in its brief and at oral we do both categories protection of in- exposing the confusion under cate- see value strumentalities, reading which belies a literal gory two. Lopez on this issue. We decline to resolve such guidance important question an without further station, house, eases, plat- helpful differentiating category “storage facility, station two easily passed depot_” cited which would have muster be- form or Perez, Laughlin, category 1359-1360. fore Jones & three cases, Railway the statute Southern whiсh would not. The Access Act and Unlike statute, regulations § aircraft Section 659 destruction 659 are direct of regard to protects goods interstate without interstate commerce the sense that both instrumentality presence directly on an of their actual statutes conduct that inter- protection Thus of in- goods interstate commerce. feres with the free flow of interstate justification for goods primary prohibits is the terstate commerce: Section 659 theft of Congress’s power goods prohibits physical to criminalize the theft of and the Access Act storage goods goods. from facilities. Unlike the obstruction of The Gun-Free School examples, protection of protection-of-persons respect Zones Act does neither with to fire- arms, nor, things in 659 is not subordinate to findings Section without further protection of instrumentalities of interstate Congress, protects is it obvious the Act how any goods. interstate accurately

Assuming have character- we Holding qualifies that the Act as a Access scope category of cases as de- ized the two regulation instrumentality an interstate easily fined in the Access Act falls reading commerce based on a literal of one category. Congress rationally within that Lopez sentence and the citation to 18 goods dispensed concluded that used and unnecessary U.S.C. 659 is without further reproductive health facilities are within inter- guidance Supreme from the Court. Because criminal- state commerce. The Access Act regula- the Access Act is constitutional as a reproductive health izes the obstruction substantially tion that affects interstate com- facilities, Congress that conclud- obstruction merce, Nonetheless, we decline to so hold. brings ed the services at such facilities to a analysis may this reveals that Act the Access H.R.Rep. halt. 1994 U.S.C.C.A.N. at regulation be viewed as a direct of interstate (noting targeted that abortion climes again commerce and confirms once down, permanently tempo- shut have been Congress’s power legis- Act is well within down, rarily). facilities are closеd When late under the Commerce Clause. naturally a halt commerce comes to as well.

Therefore, proscribes the Access Act conduct IV. directly interferes with the free flow of goods Conclusion reproductive interstate used in health Viewing Act facilities. the Access as a cate- Congress We conclude that did not exceed gory protects goods in two statute that inter- authority its under the Commerce Clause distinguishes state commerce further it from Congress when enacted the Access Act. Lopez. the Gun-Free School Zones Act specific findings made Act several proscribed The Act Gun-Free School Zones regulates activities affect clearly goods conduct that dealt with in inter- findings plain- interstate commerce. The possession of firearms— commerce — ly substituting judgment rational. its for way protected but the statute no those Congress, that of the district court went goods. The Access Act on the hand other beyond its own as defined proscribes directly conduct that interferes Supreme Court: “The task of a court that is goods in interstate commerce. particular asked to determine whether a ex- conceptual catego- congressional power The distinction between ercise of is valid under ry (regulation relatively one and two cases of the chan- the Commerce Clause is narrow. congressional nels com- and instrumentalities The court must defer to a find- merce) (substantial category regulated activity three cases that a affects interstate effects) commerce, seems to be the difference if between there is rational basis Hodel, regulations finding.” direct and indirect such a Further, nothing a distinction abandoned after Jones & S.Ct. at 2360. in the Su- Laughlin, supra. preme Lopez compels But the distinction is still Court’s decision a dif- vice”) inquiry. Similarly, of the district is irrelevant to this The decision ferent result. notwithstanding majority’s lengthy is therefore reversed. court minutely description detailed of the unchal- COFFEY, Judge, dissenting. Circuit facts, lenged this case does not concern the protest adopted by tactics some activists majority Congress did not holds that The peo- the anti-abortion movement. There are authority under the Commerce its exceed ple support particular type pro- Ac- who the Freedom of when it enacted Clause (“the activity, many I test while others find it Access cess to Clinic Entrances distasteful or worse. Act”), disagree. I recently has stated pro The Constitution of the United States justi- types of federal two vides: “The shall have ... activity grounds regulated that a fied on the Nations, foreign Commerce with [t]o “substantially commerce.” affects interstate States, among the several and with the regulation is a federal crimi- type The first of Const., I, 8,§ cl. Indian Tribes.” U.S. Art. jurisdictional statute includes a ele- nal original “At 3. the time the Constitution was case-by-case inqui- ensuring, through a ment ratified, selling, buy ‘commerce’ consisted of ry, prohibited conduct ing bartering, transporting for as well as The Access Act affects interstate commerce. purposes.” these United States v. jurisdictional link- no such element contains — U.S. -, -, 1624, 1643, 131 ing protests clinic to interstate (1995) (Thomas, J., concurring). L.Ed.2d 626 constitutionally type accept- The second Asserting power granted by the the Com regulation reaches economic able Clause,1 Congress merce enacted the Access substantially affects interstate com- January provides, Act on 1994. The Act regu- § 248 does not merce. Title 18 U.S.C. part: in relevant practices or late the business commercial Rather, the Act criminalizes abortion clinics. (a) Prohibited Activities. —Whoever— (i.e., purely the the non-eeonomic (1) by by force or threat of force or disobedience) protesters. civil anti-abortion obstruction, injures, physical intentionally Act, written, falls Because the Access as attempts intimidates or interferes with or categories within neither of the delineated injure, any intimidate or interfere with analy- in its most recent been, person person because that is or has congressional power under the Com- sis person in such or or order to intimidate Clause, I it is merce must conclude any any persons person or class of other Accordingly, respectfully I unconstitutional. from, obtaining providing reproductive or dissent. services; subject ... to the health shall (b) penalties provided subsection Background I. provided in subsection remedies civil outset, I like to make clear At the would (c), legal guardian or except parent that a appeal of this is the constitu- that the focus subject any of a minor shall not be Act, tionality specifically of the Access penalties or civil remedies under this sec- question of whether exceeded as tion for such insofar activities authority under the Commerce Clause its exclusively at the minor. directed legislation. A clear when it enacted this (b) this sec- Penalties. —Whoever violates analysis of the constitutional issues this tion shall— requires jettison charged appeal us to (1) offense, of a first be fined surrounding the abortion debate. the case emotions title, (now imprisoned this or morality referred to in accordance with The of abortion both; year, ... not more than one or “reproductive the statute health ser- issue, majority Although Congress Fourteenth Amendment as the also invoked section five of Rather, suggests. Maj.Op. at 679 n. 4. I limit the Fourteenth Amendment as to enact major- my arguments majority’s holding premised raised dissent to the Access creating unnecessary ity validity and thus refrain from on the of the Access Act under the Com- Clause. I have no wish to "avoid” the dicta. merce (1) involving any patients whether of the of the except that an exclu- reflect offense physical obstruction clinic travelled interstate to receive abor- sively a non-violent (2) $10,000 tions, employees be not more than of the of the clinic the fine shall imprisonment length shall be not travelled interstate to work at the clinic that months, both, (3) day, than or for the first more six the doctor at the clinic travelled offense; shall, clinic, provide and the fine notwithstand- interstate to abortions protesters section be not more [18 U.S.C.] travelled interstate to $25,000 length imprison- (pre- and the engage than in civil disobedience at the clinic months, residents, they than 18 sumably, being ment shall be more did Wisconsin both, not). subsequent for a offense. added). (emphasis pleas guilty entered of not defendants 248(a)(1) and asserted that of the section 29,1994, September the six defendants

On Access Act was unconstitutional. The dis- case, all of the State of residents charges, finding trict court dismissed the Wisconsin, physically obstructed the en- portion pro- Act that Access of the Wisconsin Women’s Health trances physical scribes non-violent obstruction of re- Milwaukee, from 7 Care Center Wisconsin productive health services clinics exceeds the Allegedly, 11 a.m. there a.m. until were scope congressional authority of under both patients twelve scheduled to receive abor- the Commerce and section 5 of the Clause (or, them, tions as the statute refers to “re- Fourteenth Amendment. United States v. services”) productive morning. health (E.D.Wis.1995). Wilson, obviously an The defendants created inconve- nience, they injury but caused neither nor Analysis II. facility. property damage at the The follow- ing day, Attorney the United States for the My prompted by dissent this ease is District of Wisconsin announced to Eastern legisla- congressional a desire to strike down charged the media that he had each of the six Indeed, judicial philoso- tion. as a of matter 248(a)(1) violating with section of the Access phy, I am most reluctant to do so. Never- charged Act. The information that the de- (1) theless, I dissent because the Access Act physical fendants “did nonviolent obstruc- (it constitutionally is a flawed federal statute interfere, intentionally tion intimidate and regulate activity does not economic and its interfere, attempt to intimidate and with jurisdictional lacks text “interstate com- they obtaining persons repro- were (2) language), congressional findings merce” persons ductive health services and with be- support do not the conclusion that the Act they providing reproductive were cause regulates substantially affecting in- health services.” (3) commerce, majority’s terstate analysis closely Commerce Clause is not and, I The Access is an be- unusual — federalism, principle moored to the of as I lieve, an unconstitutional —criminal statute believe it must be. regulate because it does not economic activi- ty and because it does not contain federal A. The the Ac- Constitutional Flaws of jurisdictional language require that would a cess Act prosecutor link to establish a between the regulated activity particular (e.g., Reviewing in a case the decision of the district court protest) applying the Milwaukee clinic and interstate de novo the current test for Although Congress sought evaluating legislation enacted under Clause, justify the Act under the Commerce Clause Commerce we must ask “whether a “findings” purportedly establishing concluding with such rational basis existed for commerce, activity sufficiently a regulated nexus with interstate the draft- affected [the] — jurisdictional requirement. Lopez, ers omitted a As interstate commerce.” U.S. at -, However, consequence, although congressional a at 1629. almost endeavor, findings replete language reciting every parochial, a no matter how can “commerce,” protests nexus between clinic and interstate be said to have some effect on broadly record in this case fails to as that term been defined. See has Poultry Corp. Congress’s v. well within A.L.A. United Commerce Clause Schechter 495, 554, 837, 853, States, power regulate 55 S.Ct. activities that 295 U.S. (“A society Maj.Op. such as ours affect interstate

79 L.Ed. 1570 commerce.” at 683. majority opinion all by failing is an elastic medium which transmits The leaves a void territory; only “rational,” throughout provide its tremors definition of much size.”) (Cardozo, J., question of their con persuasive explanation why less a of or how actions, many curring). aggregation of accepts congressional findings as ra furthermore, Instead, can have substantial effect. majority tional. repeatedly Filburn, 111, 127- v. See Wickard findings states that these are rational and (1942). 82, 90-91, 87 L.Ed. convincing support concludes—without logic reasoned or case law—that there Nevertheless, according to the landmark2 fore demonstrate a on in substantial effect Lopez, case of decided re United States my terstate commerce. I limit will dissent to Court, very cently by there are pоrtion of the decision and see need no Congress definite limits on the majority to address the extensive dicta in legislate under the Commerce Clause. opinion outlining possible permu the various 131 L.Ed.2d 626 regulations covering tations of the “instru- (1995). Rehnquist Chief Justice mentalities interstate commerce.” See categories identified three Maj.Op. at 686-688.3 Congress may regulate under the Commerce Clause: Lopez instructs that there are two First, regulate the use of types of valid federal under the the channels interstate commerce. Sec- First, “substantial effects” test: “a wide vari ond, Congress empowered ety congressional regulating Acts intra protect the instrumentalities inter- activity state economic where we have con commerce, persons things state or in activity substantially cluded that the affected commerce, though even the interstate commerce,” interstate may only ac- threat come from intrastate added); second, (emphasis S.Ct. at 1630 and Finally, Congress’ tivities. commerce au- “jurisdiction criminal statutes that include a thority the to includes ensure, through al element would case- having those activities a substantial rela- by-case inquiry, [prohibited act] commerce, i.e., tion to interstate those ac- question affects interstate commerce.” Id. at tivities that interstate affect 115 S.Ct. at 1631. See United States v. Bass, 30 L.Ed.2d (internal at-, Id. cita- (1971) (interpreting gun federal crime of added). omitted, emphasis tions possession specific require to nexus to inter commerce). majority majority ig The holds that the Access Act is state The either regulates activity accept important constitutional it an the and nores or refuses substantially affecting regulation of manifest distinction between a relying principally upon findings legis- activity substantially affecting in the economic allegedly criminal support lative record that this con- terstate commerce a statute findings,” majority clusion. that contains a nexus to interstate commerce “These the states, “demonstrate that the Access Act falls as one of the elements of the crime.4 This dicta, spin majority grudgingly Lopеz putting questionable admits that is a 3. a on Lo- 2.The This “significant," possibly even a “landmark” certainly nothing pez, to contribute to the does decision, case, not because of the content of the development of the law. (overturning but because of the outcome a statute grounds on Clause for the first time Commerce statutes with The distinction between criminal many years). Maj.Op. at 685. I believe that jurisdictional of “eco- nexus reading legal signifi- Lopez of minimizes the activity” “plucked" (Maj.Op. at nomic is not gives cance of the decision and Supreme short shrift to the 684-685) Lopez; the distinc- out of context from (discussed analysis Court’s be- careful Lopez, orga- analytic tion sets the framework low) of the extent to which federalism limits the nizing jurispru- Clause the Court's Commerce congressional power under the exercise of Com- dence, explaining expansion of the merce Clause. the modern forgotten, the constitution majority's be mistaken or corrupt the glaring serves error powers purpose are apply the is written. To what recognize and analysis. We must limited, purpose is that limita- and to what power enunci- on the commerce restrictions writing, if these limits tion committed to by commanded the core Lopez ated time, may, passed by those in- be principle of federalism. restrained? tended the well- majority fails to address Cranch) (1 137, 176-77, 2 L.Ed. 60 district court reasoned decision (1803). characterizes the district squarely, rather but problem majority’s A fundamental with the opinion follows: court as analysis misrepresents it is that confuses application of its un- court’s The district by regulatory thrust of the statute stat rational basis test —that derstanding of the unlike the that “the Access Gun rejected logic ‘if the finding must be Act, regulates a commer Free School Zones to inter- underlying connection stated activity provision reproductive cial provide a basis for commerce would —the However, Maj.Op. at 683. health services.” activity’ any human serious- regulating —is terms, express its the Access limits easy enough analyze a ly It flawed. is parameters of statute to non-econom did, at the finding, the district court as “force, activity, namely the use of threats ic appli- generality to find it highest level of force, physical obstruction.” More ‍​‌​‌‌​​‌‌​‌​​‌‌‌​​‌​‌‌‌​​​​‌‌​​​‌‌‌​​​​​‌​​​​‌‌‌‍ virtually every situation. But the cable over, regulation applies to the test, properly applied, is basis rational demonstrators, not to the very requires courts to defer different: reg A clinic federal statute thus itself case-by-case when Congress on a basis activity, purely non-commercial while ulates Congress’s findings reveal a substantial jurisdictional lan at the same time absent to interstate commerce. relation guage, unprecedented. Even Title II of omitted). (citation Maj.Op. at n. 7 Rights upheld by the Civil Act of majority’s I asser fail to understand widely regarded cases reasoning court’s tion that the district “high water mark” of broad Commerce “seriously The United States Su flawed.” regu interpretation, is limited to the Clause Court, congressional leg preme interpreting discriminatory practices lation of business islation, recently “simply reaffirmed hotels, motels, and restaurants. Heart of Congress may par conclude that a Motel, States, Atlanta Inc. v. United 379 activity substantially affects inter ticular 241, 348, 13 (1964); 85 L.Ed.2d 258 U.S. S.Ct. necessarily does not make state commerce 294, McClung, Katzenbach v. 379 U.S. 85 - — 2, at n. 115 Lopez, it so.” U.S. (1964). 377, Moreover, S.Ct. 13 L.Ed.2d 290 (quoting Virgi 2 Hodel v. at 1629 n. S.Ct. 201(a) Rights II of section of Title the Civil Ass’n, Mining Reclamation nia & Surface mandatory jurisdictional in provides, lan 2389, 2391, 264, 311, 101 S.Ct. 69 452 U.S. guage, only that a business establishment (1981) J., (Rehnquist, concurring L.Ed.2d 1 “if provisions falls within the of the law its not judgment)). in While courts should operations affect commerce.” second-guessing the demo make a habit of Recently, Lopez in 2000a. the Court made cratically-elected legislature on matters of clear that Heart Atlanta and Katzenbach of policy, judiciary obligation has an to act which, legislation both involved unlike either convinced, I are as am when its members the Access Act or the Gun Free School Zones case, in that constitutional boundaries activity regulates “economic substantial — transgressed. have been As Chief Justice ly affecting commerce.” interstate Madison, Marbury in v. added). Marshall observed at -, (emphasis 115 S.Ct. at 1630 superior to all three the Constitution record, in I Based on the facts set forth government: branches comprehend protest am at a loss to how the ers, legislature taking part in powers are defined who were a local act of disobedience, limited; having may not civil can be classified as and that those limits elucidating expansion: concept power, that of federalism. commerce the check on -, 115 activity. An S.Ct. 1630-31. Each of engaged, in commercial activity schoolchildren example Lopez of similar would be supporting the cases cited grounds over the dis protesting on school type regulation (activity substantially first teacher, pro popular or citizens missal of commerce) affecting interstate is limited to ill- of a house of testing at the entrance regulation of a class of entities or individ morally outraged conduct with repute, at the engaged in uals some economic ac form of protesters, clinic like the in. The Milwaukee tivity, purely as contrasted with the non- hypothetical protesters referred to activity of protesters. economic the abortion sentence, previous had no economic end Virginia Mining See Hodel v. & Surface procedure if view: for even the abortion Ass’n, 264, Reclamation 452 U.S. 101 S.Ct. free, goal remain unc were their would (1981) 2352, (regulation 69 L.Ed.2d 1 of in correctly hanged.5 the district court As coal-mining); trastate Perez v. United noted, the Access Act “does States, 146, 1357, 402 U.S. entities, regulates pri rather commercial but (1971) (intrastate L.Ed.2d 686 extortionate affecting conduct commercial entities vate Katzenbach, transactions); credit 379 U.S. goods that which in turn receive have trav (restaurants 294, utilizing sub commerce.” 880 eled interstate supplies); stantial interstate Heart Atlan of (inns regulates conduct at 628. The Act thus “one Motel, ta 379 U.S. 85 S.Ct. 348 step from the commercial enter removed catering guests); hotels to interstate Wick prise.” Id. ard, (production 317 U.S. 63 S.Ct. 82 Reno, Following 55 F.3d 1517 Cheffer wheat). consumption home-grown (11th Cir.1995),6 majority asserts that 115 S.Ct. at 1630. proposition is no for the “[t]here contrast, majority the eases cited Congress’s [under the Commerce the Eleventh Circuit in Cheffer only regulation extends to the Clause] directed at criminal statutes that contain a Maj.Op. commercial at 684. Fur entities.” jurisdictional through element ensure ther, majority allegedly cites cases that case-by-case inquiry activity ques regulation of demonstrate federal criminal Cheffer, tion affects interstate commerce. is not commercial nature. (citing F.3d at 1520 n. 6 Russell v. United However, analysis Lopez is flawed. de States, regulations types lineated two (1985) (upholding L.Ed.2d 829 substantially regulations classified as 844(i), penalizes mali “[w]hoever affecting despite interstate ciously damages destroys, attempts or or (see majority’s contrary Maj. assertion to the damage destroy, by means of or an fire 684-685). Op. repeat, types To these vehicle, explosive, any building, or other real (1) regulations are: of economic any activity ... personal property used in affects foreign affecting interstate or commerce.” commerce, and criminal statutes with a States, added)); (emphasis Stirone v. United jurisdictional a element that ensures nexus — 270, 212, 4 L.Ed.2d 252 U.S. at 361 U.S. 80 S.Ct. to interstate commerce. appeals challenged Act has not on one case from another court of 5. The Access been grounds appeal. in this Never- First Amendment theless, date have consid two lower court cases light right express in of the cherished constitutionality of the Access Act in ered the matters, troubling public one’s views on I find it light holding Court's recent in of the legislation specifically proponents the that the Cheffer, Lopez. United States v. See 55 F.3d who, targeted expressive the conduct of those White, 1517; F.Supp. 893 1423 United States v. case, out of an "act[ed] like the defendants in this (C.D.Cal.1995) (finding the Access Act to be con 103-117, S.Rep. motive.” abortion-related injunction proceeding); stitutional in a civil (1993). Cong., 103rd 1st Sess. Lucero, 895 1421 United States v. (D.Kan.1995) (finding the Access Act constitu "[ejvety majority other federal 6. The states that tional, following reasoning explicitly but the upheld court to address the issue has tutionality courts,” the consti- Reno, (4th League v. 47 F.3d 642 Act, American including of the two circuit Life denied, U.S. -, Cir.1995), сases), cert. - 116 S.Ct. Maj.Op. (citing giving at 677 the 55, (1995), authority 133 L.Ed.2d 19 which was decided impression great weight Lopez). argument. the benefit of favors I wish to make clear that without its mons, 396, 411-12, 1007, (1960) 93 S.Ct. U.S. (upholding the Hobbs U.S.C. (1973). “[wjhoever 1015-16, jurisdic A any 35 L.Ed.2d 379 penalizes § surplus- therefore not mere obstructs, tional element is delays, affects way degree or “ensure[s], through by age, for it a case case any article or the movement of commerce or [prohibited question inquiry, act] commerce, by robbery or ex commodity in — interstate commerce.” [by] commitfting] or threat ... or tortion affects at 1631. See United States v. any person or physical en[ing] violence (3rd Cir.1995) (upholding Bishop, 66 F.3d 569 added)). The Access property.”) (emphasis because, unlike car-jacking statute federal jurisdictional in nexus to Act contains no possession statute struck down the firearm to that found terstate commerce similar jurisdic § a Lopez, 18 2119 contained in Russell and Sti- the statutes addressed required government tional element that majority inexplicably rone. Cheffer prove that the vehicle stolen was “trans regulations of economic eo-mingle in interstate ported, shipped, or received” jurisdic containing a and criminal statutes commerce); Pappadopoulos, v. United States By relying on criminal stat tional element. (9th Cir.1995) (following Lopez 64 F.3d jurisdictional containing a element utes jurisdictional holding that element of 248(a)(1) § uphold of the Access Act order to federal arson statute had not been satisfied (which element), majori no such contains by proof private that a residence received effect, Cheffer, in hold that the ty and Com out-of-state); gas United States natural from conferring a cheek” merce Clause is “blank (7th Cir.1995) (stat Bell, 70 F.3d general police power that upon Congress a firearm, outlawing possession ute felon’s of a legislative intended the the Framers never 922(g)(1), challenge un 18 U.S.C. survives congres This view of branch to exercise. explicit Lopez because contains an “[i]t der square Lopez’s power does not sional requirement that a to interstate com nexus that the Constitution “with clear statement еstablished.”). merce be Congress plenary police power a hold[s] every type authorize enactment of jurisdictional that would language A statute without at -, legislation.” Lopez, permits federal a careless or overzealous S.Ct. at 1633. bring weight full prosecutor to government national to bear on a situation regulating is not econom Where fact, may, lack true connection jurisdictional language activity, insisting on ic contrast, By with interstate commerce. in a criminal statute is essential be federal juris- properly framed statute that contains cause, system, “under our federal the ‘States language requires government’s dictional defining and possess primary statute, prosecutor to establish that as enforcing law.’” Id. the criminal gov- applied, is consistent with federal (quoting at 1631 n. 3. Brecht v. authority under the Commerce ernment’s Abrahamson, 619, -, Clause, prosecutor establish and forces the (emphasis 123 L.Ed.2d 353 beyond to interstate commerce connection added).7 language prevents Jurisdictional Compare a reasonable doubt. usurping federal authorities from 2113(f) (federal robbery statute limit- bank governments local to make and of state and ed to those banks that are members law, in this the criminal have enforce System Federal Reserve insured Congress criminalizes conduct case. “When Corporation). Deposit Federal Insurance States, already denounced as criminal majority in ‘change in relation The and the Eleventh Circuit it a the sensitive effects jurisdic misleadingly cite federal criminal state criminal between federal and Cheffer to interstate commerce v. En- statutes with a nexus (quoting tion.’” Id. United States law, transactions). jurisdictional made clear in a ate credit The I wish to make clear ‍​‌​‌‌​​‌‌​‌​​‌‌‌​​‌​‌‌‌​​​​‌‌​​​‌‌‌​​​​​‌​​​​‌‌‌‍that ele- regulating Congress required every is that where is not in federal criminal ment is not statute; activity, required regu- instrumentalities in inter- where the statute economic it is not - concept of re- activity.” Lopez, at state the federalism lates "economic See, Perez, -, linking e.g., quires jurisdictional element the crimi- a 115 S.Ct. at 1630. (regulation nal act to commerсe. at of extortion- interstate at piece legislation. Lopez, justify prohibition of ticular attempt to federal in an activity majority that is not intrastate 115 S.Ct. at 1632. The a non-economic regulatory holds, economic part providing any persuasive of a national without rea- at abortion climes. disobedience soning authority, findings scheme: civil that the made in majority Eleventh Circuit and the What the support of Access Act the demonstrate the federal criminal statutes ignore is that the validity Congress’s 103rd of the determina- jurisdic- specific contain they cite do in (clinic regulates tion that the Act conduct fact requiring language that tional substantially affecting protest) federal be- clearly establish a connection prosecutor agree. commerce. I do not allegedly acts and inter- tween the unlawful Lopez in noted that repeating It that commerce. bears state findings, congressional although not re- in the Access Act. there is no such element they quired, are useful because “enable [a containing a By relying on criminal statutes reviewing legislative to evaluate the court] uphold jurisdictional in order to element judgment question that the act in substan- Act, majority and have Access Cheffer commerce,” tially espe- affected interstate effectively have comprehend failed to cially a when substantial effect not self- in- constitutional limitations obliterated the (“visible eye”). naked evident Id. in Clause. herent the Commerce Congress findings in did make connection noteworthy the com- Finally, I find it it with the Access did when any jurisdictional require- plete absence challenged Lopez. statute enacted the Access Act stands marked ment However, I make two observations with re- findings pur- congressional contrast to the First, spect findings. to these even detailed establishing legislation is a portedly findings up cannot make for the constitu- (the power commerce valid exercise of the Act, namely, tional flaws of the the fact that findings adequacy of these will be discussed regulates it neither an nor economic below). language does The omission of such jurisdictional language. A related contains merely suggest sloppy than draftsman- more above, findings point, is that these noted implicit recognition an ship; it reflects light “ring complete hollow” in ab- regulates that is the statute fact jurisdictional language in sence of the Act beyond Congress reach under the Congress found a’ need for federal itself. words, In other Commerce Clause. legislation alleged criminal based on an nex- findings Congress “ring hol- of the 103rd protest activity inter- us between clinic establish, attempted Congress That low.” commerce, yet require it failed to state record, regu- Act legislative in the jurisdic- case-by-ease showing that federal activity substantially affecting inter- lates Second, appropriate. findings re- tion is commerce, yet the drafters rendered justify provide Act upon lied the Access by failing in- findings meaningless these that the Act support little for the conclusion jurisdictional requirement clude a affecting regulates activity substantially Why? possible One conclusion is itself. require- the drafters omitted such they like the one ment because feared cases finding that abortion Congress’s first was (which, us as far as the record re- before of commerce operate clinics the stream veals, significant in- has no connection with medicine, they “purchase medical commerce) preferred terstate instead to products, surgical instruments and other nec- rely vaguely affirmative on “the other essary products, medical often from legislation to enact this under sec- States; staff; they employ or lease own I P.L. tion 8 of article of the Constitution.” 103-117, S.Rep. 103rd space.” office No. (“Pur- 103-259, Cong. 103rd 2nd See. 2 Sess. (1993). Cong., 1st Sess. pose”). Second, Congress certain indi- found that Congressional Findings B. only to between states not viduals travel provide abortion services. reviewing obtain but also to Congressional findings us in aid “Attorney pointed Reno out that a legislative judgment par- underlies a General the that Church, Virginia, may, Wichita, KS, city on the of Falls found court District Federal occasion, encountered particular have at the clinic patients the percent of that difficulty handling protesters, the same And Willa from out-of-State. there came 2,662 County, whose not true for Milwaukee that the Committee Craig testified before (2,086 city police personnel came law clinic in Montana many patients of her enforcement Department, of the Sheriffs Idaho, Wyoming and 576 officers Washington, and Can jurisdiction city of the travel with concurrent employees sometimes ada. Clinic Milwaukee) certainly require federal did not Like Dr. to work as well. across lines State and control six non- Gunn, in intervention to deal with physician who was killed the David Moreover, majority protesters. the Pensacola, FL, perform violent doctors who some congressional find- concedes that the fourth in more than one in facilities work abortions justify Congress’s to en- evi does not than the anecdotal Id. Other State.” rely Act. selectively act the Access Congress chose dence record, legislative in the upon and include logic majority, persuasive without that support the conclusion is little to there law, upholds reasoning, much less case always frequently or even abortion services the Access Act because believes have no travel. We necessitate interstate ... findings “plainly rational first three are experiences, way knowing whether of regulated activities’ substan- and reveal the by Congress cited backgrounds, or localities Maj. to interstate commerce.” tial relation number of representative of a substantial are Initially, it be noted that Op. at 680. should “reproductive health ser providing clinics congressional fo- the first three conclusions fact, vices,” findings suggest. In we as the particular exclusively on of cus not, they given easily conclude that are could above, However, clinics. as discussed sparsely-populated character of rural and criminalizes the conduct of the Access Act examples these are the areas from which may Although findings thus protesters. states, surrounding drawn. Montana clinics, employees, their indicate instance, likely have far fewer abortion of in- clients are involved the stream their than Wisconsin or Illinois.8 clinics commerce, it are protesters terstate who targets legislation. Third, primary of the federal Congress found that violence provision clinics “results abortion congres- respect to the first three With interstate movement and less fewer abortions may findings, majority be correct sional people goods.” support Id. “rational,” pos- in the broadest this, there was evidence that arson and other may very sible sense of that term. There shut down several climes and violent acts had operating in well abortion climes availability resulted in the reduction commerce and certain stream of interstate women. H.R. abortion services for some travel between states individuals indeed 103-306,103rd reprinted Cong., at 8-9 services, par- provide abortion to receive in 1994 U.S.C.C.A.N. ticularly clinic is strate- where an abortion Fourth, gically line in the located near “found” obstruction and/or no clinics within its beyond of local law case of a state has of facilities is the control However, court enforcement, as the district asserting that “local law en- borders. out, nothing a rational frequently pointed this is but authorities are over- forcement generalized description of a class activi- numbers of the bloeka- whelmed the sheer ties, justification (emphasis and is far removed from S.Rep. No. 103-117 at 20 ders.” Church, added). power. commerce for the exercise of the one occasion Falls “On court, hard-pressed city’s I am example, police entire Like the district Virginia, for any activity be covered posit that would not thirty faced force of officers uniformed description. I all-inclusive am involving many persons, such an as blockades receive effectively marriage counselors sometimes city combat the sure and the could I am confident Although from other states. military-style tactics.” clients blockaders’ clinics, many many or how have abortion legislative contains no facts that states 8. The record issue, hospitals provide abortions. such as how would be relevant on this stated, players gress support from in of the Access golf courses attract that certain adoption agencies ser- states. Some that other “once finds that a class of other states. Pet stores customers from vice activities interstate Con affects states. Churches acquire animals from other gress may regulate all activities within that purchase liturgical parishioners and have 103-117,103rd S.Rep. Cong., class.” No. 1st any activity other states. If supplies from (1993). Sess. at 31 This broad assertion is fashion, any in a then can be described such completely original at odds with the under of that that tends to affect the level act standing respect of the Framers with to the according activity may regulated to the be plainly Commerce Clause. It is also incor all-encompassing logic asserted the ma- rect, light Lopez’s requirement of that jority support Access Act. For in- Congress may only regulate “those activities stance, pro- Congress could enact a law that that interstate com affect picketing obstruction or outside hibits merce.” ill-repute simply because commer- house of added). (emphasis within, or cial transactions occur supplies and customers have trav- some Secondly, I condemn the violence em- Similarly, pro- it could ban elled interstate. ployed by some extremists the anti-abor- any kind near a school on the test movement, question tion note that but theory is an actor inter- that the school Indeed, violent conduct is not before us. commerce, i.e., re- because the school congressional findings nowhere in the do we (and textbooks, computers, supplies ceives to, meaningful find a reference much less a teachers) possibly via the stream inter- of, impact discussion non-violent ob- matter, Congress state commerce. For struction on interstate commerce. The ma- a crime out of demon- could make federal dicta, jority, in obscures the evaluation of the on strating private a home outside by discussing court actual acts before the items grounds that numerous household congressional stating over a statistics (or materials used to con- perhaps within 1,000 sixteen-year period, more than acts of building) have traveled inter- struct against violence were directed abortion clin- The district court did not state commerce. providers, including “at least 36 ics bom- exaggerate in when it the least observed arsons, threats, bings, 81 131 death 84 as- rationale, immune under this “no one is ‘invasions,’ saults, kidnappings, 327 clinic two prosecution] under the [or federal Maj.Op. and one murder.” at 678. These power.” 880 at 680. Commerce bearing have no on the case at hand statistics interpretation of the The breadth of this engaged in because the defendants were not essentially a Clause transforms Commerce charged not with violent and thus could be grant power over interstate commerce into crime, local, merely but with “non-violent something that Framers never intended: Furthermore, as physical obstruction.” de- general police power to be exercised pointed argument, fense counsel out oral expense of state government central at the majority’s gently can most statistics (and sovereignty. accepted If I and local analyzed misleading. described as When add, Lopez) accepted hasten was be, care, I believe must these sweeping rationale would amount peri- that over the measured numbers reveal for the more than a “new brand federalism 1990’s,” years, acts of represent of feder- od of sixteen there were 62.5 it would the end any meaningful pro- term. alism in sense of that at abortion clinics or violence directed Moreover, give Congress it would carte nationally per year, or 1.25 acts of viders engi- engage in social blanche annually. I per state do not under- violence neering preva- of the kind that has been so slightly more than one act of stand how thirty years. during past lent year ra- per provides a violence state each concluding tional basis findings majority also holds that the affected,” “substantially espe- commerce show that non-violent obstruction exerts prose- cially outlawed and since the conduct on interstate commerсe. substantial effect matter, was non-violent. point I out that Con- cuted this case As a threshold words, power Congress under Article the although congressional the record Thirdly, I, conjunction eight section must be read delayed patients were and that some reveals Tenth Amendment of the Constitu- intimidated, with the inexcusably there harassed tion, provides powers that: “The not which the actual number is no evidence by delegated the Consti- to the United States performed was re- abortions States, tution, by are prohibited nor it to the protest. as a result of non-violent duced respectively, or to the reserved to States analysis congres- of the I realize that this Const., (emphasis people.” amend. X U.S. may criticized as “strict record be sional added). explained, As James Madison inquiry rational basis scrutiny,” and not the system Framers envisioned federal Clause. proper under the Commerce which government powers of the central which the However, by prohibited acts because the would be limited: disobedience) (acts are of civil powers delegated by proposed The by meaningful motivated or di- in no sense government, constitution to the federal (as commerce the ser- rected at interstate are to re- few and defined. Those which are), I providers of abortion sometimes vices governments main in the state are numer- by findings, upon our believe that the relied will ous and indefinite. The former be by majori- supreme legislative body and objects, principally exercised on external ty, carefully and not should be evaluated war, negotiation, peace, as and for- [such] accepted at face value. commerce_ powers eign reserved all the to the several states will extend to Disruption Bal- C. Federal/State which, objects, ordinary in the course of ance liberties, lives, affairs, concern the ago, a decade As Justice Powell observed people; properties and the internal overreaching under the Commerce “federal order, improvement, prosperity constitutionally man- undermines the Clause state. power dated balance of between the States 1788) (James Madison, Federalist No. 45 Government, a and the Federal balance de- added). (emphasis signed protect our fundamental liberties.” times, Even modern Auth., v. San Antonio Metro. Transit Garcia that: has warned 528, 572, 1005, 1028, 105 S.Ct. U.S. power scope must [t]he [the commerce] (1985) (Powell, J., dissenting). L.Ed.2d 1016 light sys- our dual be considered justices recently agreed that Lopez, five government be tem of not extend- principle of lim- the constitutional federalism ed so to embrace effects on interstate its the extent to which the Commerce Clause commerce so indirect and remote may logically interpreted grant of as a them, complex embrace view of our “plenary” power. Thomas notes As Justice society, effectually would obliterate the dis- concurring opinion: in his tinction between what is national and power seems to me that the [I]t completely what is local and create a cen- encompass “commerce” can no means government. tralized authority gun possession, any over mere Laughlin Corp., 301 NLRB v. Jones & Steel empowers it more than the Federal Gov- 1, 37, 615, 624, 81 L.Ed. 893 regulate marriage, littering, ernment added). (emphasis animals, cruelty throughout the 50 overkill in this ease was two- The federal quite properly States. Our Constitution First, Congress passed fold: a statute that States, such matters to individual leaves exceeded its under the Commerce notwithstanding on these activities’ effect Clause, second, the federal authorities interstate commerce. statute, aggressively applied disregard- at-, 115 S.Ct. at 1642 ability of state and local officials to (Thomas, J., concurring). disruption deal with the caused the Mil- through protesters. clinic This double over- Federalism is the lens waukee kill modem con- viewed. In other illustrates the vast distance commerce must be aspect Obviously, travelled from on some of commerce. interpretation has stitutional understanding of the commerce the Framers’ does follow Commerce Clause dangers of an power, congressional and underscores can be used to extend authori- interpretation of the Commerce open-ended ty activity, including, over all criminal as in to of the Access Act is The effect case, Clause. qualifies trespass this conduct which ordinarily be a second what would transform disorderly expansive or conduct. Such an under state or local law offense misdemeanor reading of the Commerce Clause intrudes on felony, required without into a traditionally those areas which have been and federal showing that the local crime be connected by properly regulation more left Although length of only profound states. This can have conse- Ac first violation of the imprisonment for a quences for the division between national and months, penalty increases cess Act is six authority political local our within structure. (a imprisonment felo eighteen months of Kennedy (joined by As Justice Justice ny) subsequent offense. 18 U.S.C. for a O’Connor) us, astutely a link reminds there is 248(b)(1). Sincerely protesters, § motivated political between federalism and accountabili- likely protest more than one on who ty: occasion, felons when will thus become Were the Federal Government to take charged by authorities with a second federal regulation over the of entire areas of tradi- trespass disorderly conduct violation. See or concern, having nothing tional state areas Guidelines, Sentencing United States regulation to do with the of commercial 4A1.2(o) (1994) “felony (defining offense” activities, the boundaries between the punishable by death or a term as an offense spheres authority of federal and state greater year); than one imprisonment of of political responsibility blur and would 3156(a)(3) (“the ‘felony1 term illusory. would become punishable by a maximum means an offense S.Ct. at 1638 imprisonment of more than one term of J., (Kennedy, concurring). year.”).9 overreaching my opinion, congressional In majority further overlooks the fact very nature threatens the delicate of this trespass and that all the states have laws federal and state balance between regulations specifi several have even enacted legal political and creates a and climate broadly pro cally tailored to the conduct government likely to which the federal is by e.g. the Access Act. See State v. scribed into the constitution- make further intrusions Migliorino, 150 Wis.2d 442 N.W.2d 36 territory governments. of state and local al denied, (1989), cert. by Congress ap- and The rationale asserted (upholding 107 L.Ed.2d 560 con by majority proved on behalf of protesters under victions of anti-abortion regulation permit federal Access would prohibiting trespass in a Wisconsin statute every imaginable activity or type of almost Lakewood, facility); City medical Hill v. endeavor, requiring any without demonstra- (Colo.App.1995)(upholding 911 P.2d 670 Col appropriate tion that federal involvement against chal orado statute First Amendment necessary. think of or While we tend to lenge where statute limited obstruction concerns,” many crimes as “national our tra- within 100 feet of health care certain conduct practice ditional has been to leave the defini- entrances), City facility Edwards v. but see majority of tion and of the vast (C.D.Cal. Barbara, Santa process political ills to the these societal 1995) challenge (granting First Amendment the state level. city that limited to Santa Barbara ordinance medical climes and theft, protest outside trespass almost each and

From fact, violation, places worship). the defendants every aggre- taken in the criminal already from the case had been removed gate, negative can to have a influence be said eligibility profes- dramatically many felony states bar felons from for in- 9. A conviction not office, liability punishment gun under the federal licensing holding public creases for sional sentencing guidelines, in seri- but it also results examples. ownership, voting, to name a few rights ous limitations on an individual’s range Department per the full of federal law enforcement Fire Milwaukee scene State.”). sonnel, disposal of the Milwaukee resources at officers arrested transported Department, nothing suggest to the in the record to There Police Jail, County requested where were local or were in need Milwaukee officials in the state custody awaiting prosecution of such assistance. system disorderly conduct when the fed sovereignty I that the dual am well aware government stepped and took over.10 eral governments the state and federal often judiciary There is no evidence jurisdiction; overlapping criminal I results city apparatus of the law enforcement aware, however, respect am also for the Milwaukee, acting under county of Wisconsin federalism, concept prudent as well as law, inadequate were so could policy, requires fiscal that enforcement of the disorderly charge. conduct In not handle a criminal left to state and local local law be fact, justice system the law enforcement and possib authorities whenever and wherever County, like those of other of Milwaukee Martin, v. le.12 American Dental Ass’n Cf. States, areas across United urban (7th Cir.1993), 984 F.2d cert. de with, equipped grapple to and indeed have nied S.Ct. successfully managed

frequently and J., (Coffey, concurring in L.Ed.2d 132 controlled, far more serious conduct than part, dissenting part) (observing that cost prohibited by including Access ly regulations duplicated regu federal OSHA Further, violent crime.11 the law is clear promulgated by agencies lations state health in the that local law enforcement event associations, professional and medical while back-up are in of additional officials need workplace safety). doing improve little to At laws, support to enforce their federal assis a time the resources of federal law when § tance is available under 10501. enforcement and of the federal courts are Bray v. Alexandria Health See Women’s combating problems to the limit Clinic, 263, 288, 753, 769, stretched (1993) (“In truly require a concerted national re a 122 L.Ed.2d 34 the event of law trade), sponse (e.g., drug it is difficult to emergency as to which enforcement ‘State why understand the federal authorities in the inadequate protect to and local resources are city property of Milwaukee fit to “make a thе lives and of citizens or to en saw federal law,’ 10502(3), non-violent, force the criminal case” out of the local Milwaukee [under] See. Attorney empowered put protest light General is to incident. of the fact that law, disorderly County 10.Under Wisconsin conduct is In Milwaukee in 1992 there were 151 homicides, related; misdemeanor, gang punishable total 15 of which were classified as a Class B homicides, $1,000 there in 1993 were 164 total 9 of imprisonment "a fine not to exceed or related; gang which were and in 1994 there days, not to exceed 90 or both.” See Wis.Stat. homicides, gang were 143 total 12 of which were 947.01, (West 1995). §§ Ann. 943.145 and 939.51 gang-related related. All of the homicides oc- statute, Under Wisconsin's habitual offender one ci1y curred in the consin, of Milwaukee. State of Wis- who is convicted of a misdemeanor that carries a Assistance, Office of Justice November imprisonment year term of one maximum 27, 1995. penalty less have his increased to not more years imprisonment "repeat- than three if he is a proponents evidently 12. of the Access Act er,” (i.e., if he has been convicted of a misde- (undetermined) that a believed certain number of separate meanor on three occasions within the state and local authorities felt unable to deal with preceding five-year period). Wis.Stat.Ann. perceived problem protest of anti-abortion (West 1995). penally § 939.62 An enhanced for activity S.Rep. under state and local law. See a misdemeanor does not convert the offense into 103-117, IV(e) Cong., § No. 103rd 1st Sess. State, felony. 36 Wis.2d Harms (1993). Nevertheless, recog- the statute itself Thus, law, (1967). N.W.2d 78 under Wisconsin always nizes that this will not be the case. One penalty for a second or even a third convic- of the statute's "rules of is that construction” disorderly carry tion for conduct does not nothing in the statute ... "shall construed penalties provided by the severe Access Act for a provide penalties exclusive criminal ... with re- subsequent section, second or conviction for non-violent spect prohibited by to the conduct (maximum physical preempt may provide obstruction of 18 months State or locаl laws that $25,000; 248(d) imprisonment up penalties." (emphasis a fine of see such 18 U.S.C. and/or 248(b)). added). jurispru in more recent Commerce Clause well had the situation authorities local dence.”) (Thomas, J., concurring). The Su Attorney’s hand, decision States the United preme Congress may has held that yet protesters is Milwaukee prosecute the utilize the commerce for non-commer litigation unnecessary example of another (e.g., cial reasons to advance a national civil system by justice the federal that weakens Atlanta, rights agenda. Heart See already overbur- ability of the hampering the 354-55) 252-53, 85 and that it U.S. at meritorious process federal courts dened may regulate intra-state under the civil claims. Wickard, Clause. See 317 U.S. at Commerce clear, makes foregoing discussion As the (explaining poten at 90-91 as theoreti- practical as well there are sound regulatory scheme tial to undercut national resisting the “federalization” cal reasons aggregate governing production wheat law. The current Chairman of our criminal farming activity). How effect of intrastate recently Judiciary Committee of the Senate ever, gone has never so far as to the Court to “balance the important it is noted that Congress may criminalize non-com hold that gov- national states and the interests of the activity, mercial absent a nexus between that crime,” part, to avoid fighting ernment teaching and commerce. The of Lo The Third overburdening the federal courts. understanding pez capacious is that even Courts, the Federal Branch: Newsletter of during power the commerce articulated (November 1995). As a mat- 11No. Vol. century must have limits. As Justice good public poli- law and ter of constitutional gun Kennedy explained regard pos responsibility for retain cy, states should Lopez: earlier cases to “unlike the session national combating crime while “the most the court here neither the actors come before be limited primary role should government’s commercial charac nor their conduct have a truly a interna- crimes that have to thosе ter, design purposes neither the nor the (provid- Id. or interstate character.” tional of the statute have an evident commercial interdiction, drug crimes ing examples of — Lopez, at nexus.” “stalking” transcend state as such J., (Kennedy, concurring). These limits boundaries, criminal directed compelled by power are on the commerce banks) federally-backed such as institutions law, sense, logic, reason and— case common added). (emphasis respect for the core consti above all—a due I believe principle tutional of federalism. III. Conclusion 248(a)(1) uphold if section that we were Act, congressional power would the Access Clause, generally it is as The Commerce in a manner that the be extended nowadays, indeed much broad- interpreted just recently and force Court has reviewed Framers, by the and—like er than intended against. ‍​‌​‌‌​​‌‌​‌​​‌‌‌​​‌​‌‌‌​​​​‌‌​​​‌‌‌​​​​​‌​​​​‌‌‌‍fully warned often many provisions of the Constitution —is original interpreted reference to the without could The Framers of the Constitution understanding the Framers as revealed given Congress power to enact laws have founding history of the docu- the text and welfare, granting the general thus for the that, probability, I am afraid all ment. power” legislature general “police national passed the dam for much has over “too water ills of all of the conceivable social deal with judicial Instead, there to be a candid reexamination They society. did not. American discussion, clause that looks to first the commerce after much deliberation Epstein, Proper principles.” day Richard A to this crafted a document that endures Power, 73 Va.L.Rev. Scope wisely the Commerce limits (1987). component government But see and its three national (“In admittedly Congressional power at 1642-43 an branches. ease, fur- inter- appropriate I believe that we must includes broad However, Lopez makes effects’ test ther reconsider the ‘substantial clear, Be- constructing authority is not unlimited. eye a standard with an toward regulates an history Access Act neither text and of the Com- cause the that reflects the activity substantially affecting in- totally rejecting our economic without merce Clause jurisdic- nor contains commerce terstate proscribed action linking the

tional dement commerce, I must conclude that

to interstate present form is unconstitution-

the Act in its respectfully dissent.

al. I therefore SKUPNIEWITZ, Joseph

In the Matter of Posner, Crabb, and the Barbara

Richard Circuit, Petition Seventh

United States

ers.

No. 95-3222. Appeals, States Court of

United

Seventh Circuit. Dec.

Submitted

Decided Jan. 1996.* Jan.

Published

* originally typescript. opinion This was released in

Case Details

Case Name: United States v. George Wilson

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 21, 1996

Citation: 73 F.3d 675

Docket Number: 95-1871

Court Abbreviation: 7th Cir.