Wednesday, May 09, 2007

Oops! FindLaw column correction coming soon

Thanks to Marty Lederman for pointing out to me that I had over-read the Bush Administration's federalism objection to the pending hate crimes bill in my column for FindLaw today. (Read Marty's own analysis here.) I don't think my misreading of the OMB statement changes my ultimate analysis, but for completeness, I've asked the powers that be at FindLaw to post a corrected version. The corrected version makes a few small editorial changes regarding the Administration's objections, and then adds the following new section:

The Thirteenth Amendment Side Issue

There is, to be sure, one way in which the pending bill does raise a genuine issue of constitutional federalism. One provision of the bill would impose criminal liability for hate crimes on the basis of race, color, religion, or national origin (but not gender, sexual orientation, gender identity, or disability) even without the establishment of a link to interstate commerce, and even without state involvement in the crime. The OMB statement singles out this provision as raising constitutional doubts.

What is the authority for this provision? According to the legislative history, Congress can penalize private violence motivated by racial and similar animus under its power to enforce the Thirteenth Amendment—which bans slavery and, under the Court’s precedents, the “badges and incidents” of slavery.

That’s a fair reading of the Supreme Court’s cases interpreting the scope of Congress’s enforcement power, but the relevant cases pre-date the Rehnquist Court’s decisions narrowing the scope of Congressional power to enforce the Fourteenth Amendment, and so there is some doubt about their continuing vitality and scope.

Nonetheless, this is a side issue because, even if the contested provision is beyond the power of Congress under the Thirteenth Amendment, in the vast majority of cases, it will be easy to satisfy the jurisdictional element, and so the law will fall within the power of Congress under the Commerce Clause, as discussed above.