Topic: Commerce Clause and Crime
Senator: Sessions
Date: SEPTEMBER 14, 2005
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SESSIONS: We have talked about the commerce clause and there has been a lot of criticism of some of the cases.
I think there have only been two significant commerce clause cases maybe in the last 40 years, Lopez and Morrison. Senator Feinstein and you had a nice exchange about Lopez. I would certainly agree with your analysis. Had the Congress placed in there a requirement that the firearm had been traveled in interstate commerce, I believe that statute would have been upheld. We could pass it again with that simple requirement, and virtually every firearm will have traveled in interstate commerce. A few states have manufacturers. When I was a federal prosecutor, I prosecuted a lot of those cases. As a young prosecutor, I was sort of an expert at it in the '70s, and I proved sometimes the interstate commerce by simply putting an agent on there saying there was no gun manufacturer in Alabama. Or it said, "Made in Italy," on it. I remember I got that affirmed one time as proof beyond a reasonable doubt that it was not made in Alabama. So Lopez, I believe, is a good decision.
Also, with regard to crime, I would note that we've always had that nexus with interstate commerce. As a federal prosecutor, it's not prosecution for theft, it's prosecution for interstate transportation of stolen property. That's the federal crime. Theft is prosecuted only by the state courts unless it's theft from an interstate shipment. That's a federal crime. It's not stealing an automobile, it's interstate transportation of a stolen motor vehicle. ITSMV is the federal crime. The Hobbs Act, the Extortion Act to use against politicians, you have to have an interstate nexus. And I've had cases where bribery was proven, but we were not able to prosecute it federally because it did not have an interstate nexus. RICO, even arson cases have to have it there. So I just want to make sure that -- let me ask you this. In general, wouldn't you agree if someone in Pennsylvania picks up a rock and murders their neighbor, that is a crime unreachable by federal prosecution under traditional interpretations of commerce clause and the reach of the federal government?
ROBERTS: Well, again, barring special circumstances of the sort you were talking about, that's generally something addressed by state authorities.
SESSIONS: We need to get this thing straight. We have some people complaining we are federalizing too many crimes and then complaining that we are striking down some that go too far. States should prosecute these cases locally and effectively, and should do that -- guns in schools, and guns and that kind of thing. In the Violence Against Women Act, that was a commerce clause case, where a woman was raped and then sued the people who assaulted and raped her. She wanted to sue in federal court under the Violence Against Women' act. What the court held there was, as I read it, the court limited Congress' power to provide for civil damages, money damages. She could sue that rapist in state court, but not for money damages in federal court. Is that the holding of that case?
ROBERTS: That's my understanding of what the court held in the Morrison case, yes.
SESSIONS: And I don't think it is an utterly extreme position. It certainly did not gut the Violence Against Women Act. It has so many more provisions than just that. If the action had been against a private business, could the damages have been rendered in that case?
ROBERTS: I'm not sure I know the answer to that, Senator.
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