United States v. Jay Scott Ballinger

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 10, 2005

Nos. 01-14872 and 01-15080

THOMAS K. KAHN

________________________ CLERK

D. C. Docket Nos. 99-00026-CR-01-2

and 01-00032-CR-01-2-WCO

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAY SCOTT BALLINGER,

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Northern District of Georgia

_________________________

(January 10, 2005)

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH,

DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR

and HILL *, Circuit Judges.

*

Honorable James C. Hill, elected to participate in this decision pursuant to 28 U.S.C.

§46(c).

MARCUS, Circuit Judge:

Jay Scott Ballinger appeals his convictions for five counts of destruction of

religious property on account of their religious character, in violation of 18 U.S.C.

§ 247. Ballinger claims that § 247 is an unconstitutional exercise of Congress’

commerce power, both facially and as applied to his offenses. Moreover, he argues

that § 247 does not, by its express terms, reach his conduct, which involved

traveling by car on the interstate highways and crossing the borders of four states

for the purpose of burning churches. After reviewing the substance of Congress’

commerce power, we have little trouble concluding that § 247, both facially and as

applied to Ballinger, is a constitutional expression of Congress’ well-established

power to regulate the channels and instrumentalities of interstate commerce in

order to prevent their use for harmful purposes. Furthermore, the well-settled

meaning of the “in commerce” jurisdictional language employed by Congress in §

247 leads us to conclude that Ballinger’s conduct falls squarely within the scope of

the statute. Accordingly, we affirm.

I.

A.

On April 20, 1999, a federal grand jury in the Northern District of Georgia

returned an indictment charging Jay Scott Ballinger with three counts of

2

intentionally destroying religious property, in violation of 18 U.S.C. § 247, and

three counts of using fire to commit those offenses, in violation of 18 U.S.C. §

844(h). One month later, on May 20, 1999, a federal grand jury in the Middle

District of Georgia indicted Ballinger on two additional counts of intentionally

destroying religious property, in violation of 18 U.S.C. § 247, and two additional

counts of using fire to commit those offenses, in violation of 18 U.S. C. § 844(h).

On December 14, 2000, Ballinger moved to dismiss the indictment in the Northern

District of Georgia on the ground that the alleged offenses lacked a sufficient

nexus with interstate commerce, and the United States Magistrate Judge

recommended that the motion be denied.

Four months later, Ballinger entered a negotiated guilty plea in the United

States District Court for the Northern District of Georgia. Ballinger pled guilty to

the three counts of intentionally destroying religious property in violation of 18

U.S.C. § 247 charged in the Northern District of Georgia, and, pursuant to Federal

Rule of Criminal Procedure 20, he pled guilty to the two counts of violating § 247

charged in the Middle District of Georgia. As part of the plea agreement, Ballinger

expressly preserved “the right to appeal the constitutionality of § 247 under the

Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, both on its face and as applied to

him.” The magistrate judge recommended that the district court accept Ballinger’s

3

guilty plea, and in an order issued July 13, 2001, the district court approved and

adopted the magistrate’s Report and Recommendation in its entirety, concluding

that § 247 was constitutional both facially and as applied. Thereafter, the district

court sentenced Ballinger to life imprisonment on the count of violating § 247 that

had resulted in the death of a volunteer firefighter who fought the blaze at one of

the burned churches, and to 240 months’ imprisonment, to run concurrently, on

each of the four remaining counts.

Ballinger appealed on Commerce Clause grounds, and a divided panel of

this Court reversed his convictions. The panel held that although § 247 was a

constitutional exercise of the commerce power, Ballinger’s conduct did not fall

within the ambit of the statute. United States v. Ballinger, 312 F.3d 1264, 1276

(11th Cir. 2002). On May 12, 2004, this Court vacated the panel opinion and

directed that the case be heard en banc. United States v. Ballinger, 369 F.3d 1238

(11th Cir. 2004) (en banc).

B.

The parties to this case stipulated to the following essential facts 1 as part of

the negotiated plea agreement. Ballinger is a practicing “Luciferian,” and considers

1

We do not summarize a substantial body of stipulated facts regarding the burned

churches’ involvement in commerce because we have no occasion today to reach the issue of

whether the churches engaged in or otherwise substantially affected interstate commerce.

4

himself a missionary of Lucifer. He has expressed hostility toward organized

Christianity, and describes the burning of churches as his “work” and his

“business.”

In December 1998, Ballinger and his girlfriend, Angela Wood, left Indiana

in Ballinger’s Indiana-registered van, partly out of concern about a call to

Ballinger’s parents’ Indiana home by an FBI agent. Ballinger and Wood traveled

in Ballinger’s van to Georgia, passing through Kentucky and Tennessee, and using

interstate highways, purchasing gasoline and other goods, and staying in hotels all

along the way. On the way to Georgia, Ballinger deliberately set fire to three

churches in three states: the Mt. Eden Christian Church in Scottsburg, Indiana, on

or about December 20, 1998; the Bolton Schoolhouse Missionary Baptist Church

in Bonnieville, Kentucky, on or about December 21, 1998; and the Little Hurricane

Primitive Baptist Church in Manchester, Tennessee, on or about December 22,

1998.

Ballinger arrived in Dalton, Georgia on December 22, 1998, and checked

into the Best Inns of America Hotel. At 7:10 p.m., he used his Indiana Visa card to

purchase a plastic gas can from the Dalton K-Mart store. At approximately 1:30

a.m. on December 23, 1998, Ballinger drove his van to the Amazing Grace Baptist

Church, broke a church window using a tool he had brought from Indiana, poured

5

gasoline into the broken window, and set fire to the church with a cigarette lighter.

The fire completely destroyed the Amazing Grace Baptist Church. After setting

that fire, Ballinger drove his van back to the Dalton Best Inns of America Hotel,

where he spent the night.

The following night, Ballinger drove his van to the Mountain View Baptist

church and deliberately burned its fellowship hall at approximately 1:09 a.m. on

December 24, 1998. Again, Ballinger used a tool from his van to break a window,

poured gasoline into the broken window, and set fire to the church, before driving

away. The fire badly damaged the church’s fellowship hall.

Ballinger and Wood checked out of the Dalton Best Inns of America Hotel

and drove Ballinger’s van to the Athens, Georgia area, where they checked into the

Perimeter Inn on December 26, 1998. Along the way, Ballinger drove to the

Sardis Full Gospel Church in Walton County and burned its fellowship hall, too, at

approximately 12:53 a.m. on December 25, 1998, utterly destroying the building.

Again, Ballinger started the fire by breaking a church window and pouring in

gasoline. Ballinger then stayed at the Perimeter Inn in Athens until January 16,

1999. During his stay, shortly before 9:15 a.m. on December 31, 1998, Ballinger

drove his van to the New Salem United Methodist Church in Banks County,

Georgia. Again, he broke a window using a tool from his van, poured in gasoline,

6

and set fire to the church. Before destroying the church completely, the fire caused

the roof to collapse, killing volunteer firefighter Loy Williams and injuring three

other volunteer firefighters.

Ballinger returned to the Perimeter Inn, where he stayed until approximately

11:30 p.m., when he drove to the Johnson United Methodist Church in Oconee

County, Georgia. Once again, Ballinger used a tool from his van to break a church

window, poured in gasoline, and set fire to the church, before driving back to his

hotel. The fire badly damaged the church.

Ballinger checked out of the Perimeter Inn on January 16, 1999, and drove

his van back to Indiana. Again he used the interstate highways, purchased gasoline

and other goods, and stayed in hotels throughout the trip. Along the way back, he

set fire to three more churches: the Cedar Grove Baptist Church in Franklin,

Kentucky, on January 17, 1999; the Pleasant Hill Methodist Church in Elkton,

Kentucky, on January 17-18; and the New Harmony Baptist Church in Beaver

Dam, Kentucky, on January 18, 1999. During his travels, Ballinger crossed

interstate borders six times, traveling from Indiana into Kentucky, from Kentucky

into Tennessee, from Tennessee into Georgia, and then from Georgia back to

Tennessee, then Kentucky, and finally Indiana. He burned a total of eleven

churches during the course of this single arson spree.

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II.

Ballinger was convicted under Title 18 U.S.C. § 247, which provides in

relevant part:

(a) Whoever, in any of the circumstances referred to in subsection (b) of

this section--

(1) intentionally defaces, damages, or destroys any religious real

property, because of the religious character of that property, or

attempts to do so; or

(2) intentionally obstructs, by force or threat of force, any person in

the enjoyment of that person's free exercise of religious beliefs,

or attempts to do so;

shall be punished as provided in subsection (d).

(b) The circumstances referred to in subsection (a) are that the offense is

in or affects interstate or foreign commerce.

We understand Ballinger as having made three separate, though overlapping

arguments for overturning his convictions under § 247. First, Ballinger says that §

247 is facially unconstitutional -- that is, under no circumstances does Congress

have the commerce power to proscribe the intentional destruction of religious

property in or affecting commerce. Second, Ballinger claims that § 247 is

unconstitutional as applied to his conduct -- that is, even if Congress has the power

to reach some offenses, it is not empowered to reach conduct like Ballinger’s.2

2

Although Ballinger purports to be making a facial as well as an as-applied challenge,

see, e.g., Appellant’s Panel Br. at 17, we read him as making the latter more than the former.

For one thing, the Appellant described to the en banc Court at oral argument types of conduct

that he believed would fall within the permissible scope of the statute, a position wholly

inconsistent with facial unconstitutionality. See United States v. Salerno, 481 U.S. 739, 745, 107

S. Ct. 2095, 95 L. Ed. 2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the

8

Finally, the argument that Ballinger has cast as an as-applied challenge to the

constitutionality of § 247 seems really to raise a question of statutory construction -

- namely, whether, by its specific terms, § 247 covers Ballinger’s conduct. The

substance of the argument is that “there was insufficient evidence to show that the

offenses in this case were ‘in or affecting commerce,’” Appellant’s Panel Br. at 16,

raising the issue of whether the statutory language contemplates offenses like

Ballinger’s. The first two questions are easily resolved, and we address them at the

outset; the third is more involved, and is at the heart of this case.

A.

We review the constitutionality of a statute de novo. United States v. Scott,

263 F.3d 1270, 1271 (11th Cir. 2001). To determine whether § 247 is a valid

exercise of Congress’ commerce power, we begin with an overview of the nature

of that power. Article I, § 8 of the United States Constitution provides that “The

Congress shall have the Power . . . To regulate Commerce with foreign Nations,

and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8,

cls. 1 & 3.

most difficult challenge to mount successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid.”). Moreover, the Appellant’s brief to

the panel in fact argued that “[t]he ‘offense’ of burning a religious structure can ‘affect interstate

commerce’ only if the structure is in that same commerce,” Appellant’s Panel Br. at 44, again

suggesting that there are, indeed, some church burnings that § 247 may constitutionally reach.

9

The Supreme Court’s landmark decision in United States v. Lopez, 514 U.S.

549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), which issued shortly before

Congress amended § 247 in 1996, synthesized more than a century of Commerce

Clause activity into a definitive description of the commerce power. In Lopez, the

Court addressed the constitutionality of the Gun-Free School Zones Act of 1990,

18 U.S.C. § 922(q) (1988 ed., Supp. V), which prohibited possession of a firearm

within a thousand feet of a school. Because the statute criminalized intrastate

conduct without including any jurisdictional hook to “ensure, through case-by-case

inquiry, that the firearm possession in question affects interstate commerce,”

Lopez, 514 U.S. at 561, the Court found that it exceeded the scope of Congress’

commerce power. In reaching this conclusion, Chief Justice Rehnquist, writing for

the Court, laid out “three broad categories of activity that Congress may regulate

under its commerce power”: “First, Congress may regulate the use of the channels

of interstate commerce. Second, Congress is empowered to regulate and protect

the instrumentalities of interstate commerce, or persons or things in interstate

commerce, even though the threat may come only from intrastate activities.

Finally, Congress’ commerce authority includes the power to regulate those

activities having a substantial relation to interstate commerce, i.e., those activities

that substantially affect interstate commerce.” Id. at 558-59 (citations omitted); see

10

also, e.g., United States v. Morrison, 529 U.S. 598, 608-09, 120 S. Ct. 1740, 146 L.

Ed. 2d 658 (2000) (reiterating these categories); Scott, 263 F.3d at 1271-72

(reiterating the Lopez categories).

Channels of commerce are “the interstate transportation routes through

which persons and goods move.” Morrison, 529 U.S. at 613 n.5 (quoting United

States v. Lankford, 196 F.3d 563, 571-572 (5th Cir. 1999)). These channels

include highways,3 see, e.g., Pierce County v. Guillen, 537 U.S. 129, 147, 123 S.

Ct. 720, 154 L. Ed. 2d 610 (2003); United States v. Pappadopoulos, 64 F.3d 522,

527 (9th Cir. 1995); United States v. New Buffalo Amusement Corp., 600 F.2d

368, 391 n.4 (2d Cir. 1979), railroads, navigable waters, and airspace, see, e.g.,

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 516-18, 61 S. Ct.

1050, 85 L. Ed. 1487 (1941); Escanaba & Lake Mich. Transp. Co. v. City of

Chicago, 107 U.S. 678, 682, 17 Otto 678, 2 S. Ct. 185, 27 L. Ed. 442 (1883);

United States v. Ho, 311 F.3d 589, 597 (5th Cir. 2002); Ickes v. FAA, 299 F.3d

3

We characterize highways as channels of commerce, since they are routes for the

interstate transportation of people and goods. However, it bears noting that roads resemble

instrumentalities of commerce in certain respects as well (for example, unlike oceans and

airways, they are artificially constructed and -- albeit at some cost -- moveable); thus, the

Supreme Court has variously labeled highways both as channels and as instrumentalities.

Compare Pierce County, 537 U.S. at 147 (channels); and Oklahoma ex rel. Phillips, 313 U.S. at

518 (channels), with Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 197, 95 S. Ct. 392, 42 L.

Ed.2 d 378 (1974) (instrumentalities); Alstate Const. Co. v. Durkin, 345 U.S. 13, 16, 73 S. Ct.

565, 97 L. Ed. 745 (1953) (instrumentalities); Overstreet v. N. Shore Corp, 318 U.S. 125, 129-

30, 63 S. Ct. 494, 87 L. Ed. 656 (1943) (instrumentalities); and Monongahela Navigation Co. v.

United States, 148 U.S. 312, 342, 13 S. Ct. 622, 37 L. Ed. 463 (1893) (instrumentalities).

11

260, 263 (3d Cir. 2002); Gibbs v. Babbitt, 214 F.3d 483, 490-91 (4th Cir. 2000), as

well as telecommunications networks, see, e.g., Ho, 311 F.3d at 597; Gibbs, 214

F.3d at 490-91, and national securities markets, see, e.g., Riley v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 292 F.3d 1334, 1347 (11th Cir. 2002).

Instrumentalities of interstate commerce, by contrast, are the people and

things themselves moving in commerce, including automobiles, airplanes, boats,

and shipments of goods. See, e.g., Perez v. United States, 402 U.S. 146, 150, 91 S.

Ct. 1357, 28 L. Ed. 2d 686 (1971); United States v. Hickman, 179 F.3d 230, 232

(5th Cir. 1999); United States v. Cobb, 144 F.3d 319, 322 (4th Cir. 1998); United

States v. McHenry, 97 F.3d 125, 126 (6th Cir. 1996); United States v. Bishop, 66

F.3d 569, 588 (3d Cir. 1995); United States v. Oliver, 60 F.3d 547, 550 (9th Cir.

1995). Instrumentalities of commerce include, as well, “pagers, telephones, and

mobile phones.” United States v. Pipkins, 378 F.3d 1281, 1295 (11th Cir. 2004).

Plainly, congressional power to regulate the channels and instrumentalities

of commerce includes the power to prohibit their use for harmful purposes, even if

the targeted harm itself occurs outside the flow of commerce and is purely local in

nature. See, e.g., Lopez, 514 U.S. at 558-59; Brooks v. United States, 267 U.S.

432, 436, 45 S. Ct. 345, 69 L. Ed. 699 (1925) (“Congress can certainly regulate

interstate commerce to the extent of forbidding and punishing the use of such

12

commerce as an agency to promote immorality, dishonesty, or the spread of any

evil or harm to the people of other states from the state of origin.”); Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S. Ct. 348, 13 L. Ed. 2d

258 (1964) (“[T]he authority of Congress to keep the channels of interstate

commerce free from immoral and injurious uses has been frequently sustained, and

is no longer open to question.” (quoting Caminetti v. United States, 242 U.S. 470,

491, 37 S. Ct. 192, 61 L. Ed. 442 (1917))). Congress has repeatedly used this

power to reach criminal conduct in which the illegal acts ultimately occur

intrastate, when the perpetrator uses the channels or instrumentalities of interstate

commerce to facilitate their commission. Title 18 U.S.C. § 1952, for example,

reaches a broad range of purely intrastate criminal conduct -- including extortion,

bribery, drug distribution, prostitution, and, indeed, arson -- when the offender

travels in or uses the facilities of interstate commerce. See 18 U.S.C. § 1952(a)-

(b); see also, e.g., 18 U.S.C. § 1951 (prohibiting robbery and extortion that “in any

way or degree obstructs, delays, or affects commerce”); 18 U.S.C. § 1958

(prohibiting travel in or the use of any facility of interstate commerce to commit

murder for hire).

Congress’ power to regulate activities that “affect” commerce enables it to

reach wholly intrastate conduct -- that is, conduct that utilizes neither the channels

13

nor the instrumentalities of interstate commerce -- but only when it has “a

substantial relation to” (meaning it “substantially affect[s]”) interstate commerce.

Lopez, 514 U.S. at 558-59. This third Lopez prong is the broadest expression of

Congress’ commerce power. See, e.g., Mandeville Island Farms, Inc. v. Am.

Crystal Sugar Co., 334 U.S. 219, 232 & n.11, 68 S. Ct. 996, 92 L. Ed. 1328 (1948).

B.

The constitutional issue this case raises is whether the Commerce Clause,

found in Article I, § 8, clauses 1 and 3 of the United States Constitution, permits

Congress to proscribe the conduct of an arsonist who travels by car on the

interstate highways through four states, apparently for no other purpose than to

burn churches to the ground. We need not and do not reach the question of

whether § 247 constitutes a permissible regulation under the third Lopez prong of

activity affecting commerce,4 since the statute falls squarely within Congress’

power under the first two Lopez prongs to regulate the channels and

instrumentalities of commerce. Ballinger set fire to at least eleven churches in four

states during the course of his interstate arson spree. This is precisely the sort of

4

Accordingly, we offer no opinion as to whether the church burnings in this case affected

interstate commerce, either because the churches were engaged in commerce prior to their

destruction or because their activities were sufficiently interstate in nature that they otherwise

substantially affected interstate commerce. Moreover, we need not and do not address the

question -- briefed to the en banc Court by both parties -- of whether any effects the church

burnings might have on commerce may be aggregated for purposes of the Lopez analysis.

14

conduct that may be regulated under Congress’ well-established power to forbid or

punish the use of the channels and instrumentalities of interstate commerce “to

promote . . . the spread of any evil or harm to the people of other states from the

state of origin.” Brooks, 267 U.S. at 436. The Commerce Clause contemplates

congressional efforts “to keep the channels of interstate commerce free from

immoral and injurious uses.” Heart of Atlanta, 379 U.S. at 256 (quoting Caminetti,

242 U.S. at 491). Surely, utilizing the channels and instrumentalities of commerce

to facilitate a prolonged, multistate church-burning spree qualifies as an “injurious

use” that Congress may proscribe pursuant to its commerce power.

The Appellant argues, nevertheless, that Congress’ power over the channels

and instrumentalities of commerce authorizes it to proscribe only those harmful

activities whose ultimate actus reus occurs within a channel of commerce, see

Appellant’s Panel Br. at 38-40, or constitutes an attack on an instrumentality of

commerce, see id. at 29-30, 35-38. Ballinger says that Congress’ power to regulate

the channels of commerce does not authorize it to regulate “an activity that merely

implicates or invokes the use of the channels of commerce,” id. at 39; arson, the

argument continues, is an act consummated outside the channels of commerce, and

thus beyond the reach of the commerce power. Nor, the Appellant asserts, does

Congress’ power to regulate the instrumentalities of commerce authorize § 247,

15

because the statute regulates church buildings, which do not themselves constitute

instrumentalities of commerce. Id. at 29-30.

These arguments misconceive the nature of Congress’ commerce authority.

The commerce power has always been construed by the Supreme Court to include

the power to prohibit the use of the channels or instrumentalities of interstate

commerce “to promote immorality, dishonesty, or the spread of any evil or harm to

the people of other states from the state or origin.” Brooks, 267 U.S. at 436

(emphasis added). An act that promotes harm, not the harm itself, is all that must

occur in commerce to permit congressional regulation. In fact, it is a “well-settled

principle that Congress may impose relevant conditions and requirements on those

who use the channels of interstate commerce in order that those channels will not

become the means of promoting or spreading evil, whether of a physical, moral or

economic nature.” United States v. Orito, 413 U.S. 139, 144, 93 S. Ct. 2674, 37 L.

Ed. 2d 513 (1973) (quoting N. Am. Co. v. SEC, 327 U.S. 686, 705, 66 S. Ct. 785,

90 L. Ed. 945 (1946)) (emphasis added); see also Am. Power & Light Co. v. SEC,

329 U.S. 90, 99, 67 S. Ct. 133, 91 L. Ed. 103 (1946) (emphasis added); Ky. Whip

& Collar Co. v. Ill. Cent. R.R. Co., 299 U.S. 334, 347, 57 S. Ct. 277, 81 L. Ed. 270

(1937) (“The anticipated evil or harm may proceed from something inherent in the

subject of transportation as in the case of diseased or noxious articles, which are

16

unfit for commerce. Or the evil may lie in the purpose of the transportation, as in

the case of lottery tickets, or the transportation of women for immoral purposes.”

(emphasis added)).

These precedents leave no doubt that the commerce power contemplates

congressional regulation of the channels and instrumentalities of commerce in

order to prevent their use to facilitate harmful acts, which may be consummated --

and whose effects ultimately may be felt -- outside the flow of commerce. In

enacting § 247, Congress was attempting to do just that -- to prevent what it

characterized as the evil of church burnings, which had become a national

epidemic, from spreading from state to state through the channels and

instrumentalities of interstate commerce. See H.R. Rep. No. 104-621, at 2,

reprinted in 1996 U.S.C.C.A.N. 1082, 1083.

Congress acted well within the bounds of its commerce power when it

enacted legislation to prevent conduct like Ballinger’s, which entailed weeks of

travel in a van (an instrumentality of commerce) along interstate highways (a

channel of commerce) and at least six separate interstate border crossings, all for

the specific purpose of spreading the evil of church burning through four different

states. As the dissent from the earlier panel opinion put it: “Ballinger’s actions

placed him squarely within the bounds of Congress’s power to regulate because he

17

used interstate commerce as an agency to promote criminal acts of arson. In

addition to the obvious fact that it was necessary for him to travel across state lines

in order to commit arson in Georgia (as well as Tennessee and Kentucky), the

immediacy with which he set out to destroy churches once he arrived and the

absence of any indication that he had other business in Georgia demonstrate that he

used the channels of interstate commerce for the purpose of committing arson.”

Ballinger, 312 F.3d at 1278 (Hall, J., dissenting).5

5

Contrary to the suggestion in Judge Birch’s dissent, the question before us is not whether

Congress has the power to proscribe purely intrastate acts of arson. The statute that Judge Birch

would condemn as an unconstitutional intrusion on state authority is not a flat proscription on

church arson. Rather, § 247 contains an explicit requirement of an appropriate nexus with

interstate commerce, so that church arson may be prosecuted only when “the offense is in or

affects interstate or foreign commerce.” § 247(b). Chief Justice Rehnquist, writing for the Court

in Lopez, made it abundantly clear that a federal criminal statute that contains “an express

jurisdictional element” capable of “limit[ing] its reach to a discrete set of [offenses] that

additionally have an explicit connection with or effect on interstate commerce” is substantially

different from a statute that contains no such jurisdictional element, and must be treated

differently. See Lopez, 514 U.S. at 561 (contrasting the statute at issue in that case, which

contained no jurisdictional element, with the statute at issue in United States v. Bass, 404 U.S.

336, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971), which did have such a component). When a statute

expressly requires that the proscribed conduct have an appropriate nexus with interstate

commerce, courts can “ensure, through case-by-case inquiry,” that each application of the statute

is constitutional, and thus the statute should not be struck down as being facially

unconstitutional. See id. (observing that the Bass Court appropriately “set aside the [firearm

possession] conviction because . . . the Government . . . had failed ‘to show the requisite nexus

with interstate commerce,’” and thereby “interpreted the statute to reserve the constitutional

question whether Congress could regulate, without more, the ‘mere possession’ of firearms”)

(citing United States v. Five Gambling Devices, 346 U.S. 441, 448, 74 S. Ct. 190, 98 L. Ed. 179

(1953) (plurality opinion) (“The principle is old and deeply imbedded in our jurisprudence that

this Court will construe a statute in a manner that requires decision of serious constitutional

questions only if the statutory language leaves no reasonable alternative.”)).

Congress drafted the amended § 247 to include, as an element of the statutorily defined

crime, the requirement that the offense occur in or affect commerce. To treat this statute as if it

contained no nexus to interstate commerce, but rather as if it simply proscribed wholly intrastate

18

Moreover, as the Appellant himself acknowledges, Congress has repeatedly

acted pursuant to its commerce power to regulate use of the channels and

instrumentalities of commerce to proscribe criminal conduct. Ballinger himself

cites numerous statutes that prohibit movement through the channels of commerce

and/or use of the instrumentalities of commerce for various purposes, including: 18

U.S.C. § 43 (to engage in animal enterprise terrorism); 18 U.S.C. § 228 (to avoid

paying child support); 18 U.S.C. § 1073 (to avoid prosecution); 18 U.S.C. § 1074

(to avoid prosecution for destroying property); 18 U.S.C. § 1231 (to engage in

strikebreaking); 18 U.S.C. § 1958 (to commit murder for hire); 18 U.S.C. § 2101

(to cause a riot); 18 U.S.C. § 2118 (to engage in robbery involving controlled

substances); 18 U.S.C. § 2261 (to commit domestic violence); 18 U.S.C. § 2261A

(to commit stalking); 18 U.S.C. § 2262 (to violate a domestic protective order); 18

U.S.C. § 2423 (to provide minors for sex). These statutes clearly illustrate

Congress’ power to punish offenders like Ballinger, who rely on the channels and

acts of church arson, would require us to ignore the explicit interstate commerce language

contained in the statute. If Congress had asserted its commerce power to proscribe church

burnings without requiring that the offenses occur in or affect interstate commerce, the resulting

legislation would have raised a substantial constitutional question. However, that question is not

present here since we cannot discard the jurisdictional language that Congress, mindful of

Lopez, employed for the express purpose of situating § 247 within the constitutional bounds of

its commerce power. See H.R. Rep. No. 104-621, at 7, reprinted in 1996 U.S.C.C.A.N. 1082,

1088. By giving proper effect to the statute’s jurisdictional element, we preserve our tradition of

federalism and Congress’ longstanding Article I commerce power, both of which have deep

roots in the Constitution.

19

instrumentalities of commerce in committing criminal acts.6

Ballinger urges us to distinguish these statutes from § 247, suggesting that

they “are examples of proper use of the Commerce Clause by regulating an

instrumentality of or a thing in interstate commerce. In contrast, the language of §

247 does not require anything to move in commerce.” Appellant’s Panel Br. at 36-

37. The difference, according to the Appellant, is that these statutes “regulate

crime by focusing on the criminal’s movement in interstate commerce.” Id. at 36.

This analysis, however, conflates the constitutional question with the statutory

interpretation question. The question of whether Congress has the constitutional

authority to proscribe Ballinger’s conduct is entirely distinct from the question of

whether the statutory language Congress employed actually reached that conduct.

Appellant, in fact, seems to concede that Congress constitutionally could have

proscribed Ballinger’s offenses, simply by rewording the statute to “focus[]on the

6

The dissent from the panel opinion also cites a number of early Supreme Court cases

upholding similar congressional exercises of commerce power. See Ballinger, 312 F.3d at 1277

(Hall, J., dissenting) (citing Brooks v. United States, 267 U.S. 432, 45 S. Ct. 345, 69 L. Ed. 699

(1925), which upheld a statute prohibiting the transportation across state lines of stolen

automobiles; Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917),

which upheld a statute prohibiting the transportation of women across state lines for the purpose

of concubinage; Hoke v. United States, 227 U.S. 308, 33 S. Ct. 281, 57 L. Ed. 523 (1913), which

upheld a statute prohibiting inducing a woman to travel in interstate commerce for the purpose of

prostitution; and Champion v. Ames, 188 U.S. 321, 23 S. Ct. 321, 47 L. Ed. 492 (1903), which

upheld a statute barring the transportation across state lines of lottery tickets).

20

criminal’s movement in interstate commerce.” Id.7

Thus, for the purpose of determining the constitutionality of proscribing

Ballinger’s conduct, it is sufficient to say that Congress’ commerce authority

includes the power to punish a church arsonist who uses the channels and

instrumentalities of interstate commerce to commit his offenses. Given that

Congress has the power to proscribe Ballinger’s conduct, we turn to the remaining

question of whether, in enacting § 247, Congress actually did so.

7

Not all of the statutes the Appellant cites actually focus on the travel rather than on the

offense. Title 18 U.S.C. § 2118(a), for example, provides: “Whoever takes or attempts to take

from the person or presence of another by force or violence or by intimidation any . . . controlled

substance . . . shall . . . be fined . . . or imprisoned . . . if . . . (2) the person who engaged in such

taking or attempted such taking traveled in interstate or foreign commerce or used any facility in

interstate or foreign commerce to facilitate such taking or attempt.” Plainly, this provision is

worded to focus on punishing the act of taking property, not the travel in or use of a facility of

interstate commerce.

Other statutes further illustrate the formalistic nature of the Appellant’s suggestion that

Congress can only proscribe travel in commerce to commit a crime, not the crime itself. Thus,

for example, 21 U.S.C. § 331(k) prohibits “[t]he alteration, mutilation, destruction, obliteration,

or removal of the whole or any part of the labeling of, or the doing of any other act with respect

to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale

(whether or not the first sale) after shipment in interstate commerce and results in such article

being adulterated or misbranded.” 21 U.S.C. § 331(k) (emphasis added). In fact, the Supreme

Court has upheld § 331(k) (then codified as 21 U.S.C. § 301(k)) as a valid exercise of commerce

power. See United States v. Sullivan, 332 U.S. 689, 68 S. Ct. 331, 92 L. Ed. 297 (1948); see also

United States v. Evers, 643 F.2d 1043 (5th Cir. Apr. 27, 1981) (noting the Supreme Court’s

holding in Sullivan and applying the statute accordingly).

Similarly, the Supreme Court held in Scarborough v. United States, 431 U.S. 563, 97 S.

Ct. 1963, 52 L. Ed. 2d 582 (1977), that under 18 U.S.C. § 1202(a), which punishes felons who

“possess[] . . . in commerce” a firearm, the offense of possession need not have “a present nexus

with commerce.” Id. at 571-72. Rather, the firearm need only have moved in commerce at some

time prior to the felon’s possession of it. See, e.g., United States v. Dupree, 258 F.3d 1258, 1260

(11th Cir. 2001) (upholding the constitutionality of 18 U.S.C. § 922(g), the successor statute to §

1202(a)).

21

III.

The central question this appeal raises is whether § 247 is properly

interpreted as prohibiting the use of the channels and instrumentalities of

commerce to commit church arson, or whether the statute merely proscribes arsons

in which the burning of the church itself occurs in commerce or affects commerce.

Ballinger takes the position that arson is a purely intrastate activity that can rarely,

if ever, be “in commerce.” In this view, the crime of arson occurs only at the

precise “point when the arsonist starts the fire,” Appellant’s En Banc Br. at 20; this

point, therefore, is the only one relevant to determining whether the offense is “in

commerce.” “[T]ravel prior to the offense is not relevant,” Ballinger maintains,

because it is not part of the offense. Id. at 29. Accordingly, he reads § 247's

provision that “the offense is in or affects” commerce as requiring that the

defendant commit the ultimate actus reus of igniting the church “in commerce.”

Ballinger is less than clear about what, precisely, he believes must transpire “in

commerce” to satisfy the statute; what is clearly insufficient, though, in his view, is

“[t]raveling [in interstate commerce] or using facilities or instrumentalities [of

interstate commerce] before or after committing the offense.” Id. In other words,

Ballinger envisions the statute as proscribing only those offenses in which the

precise meeting of flame and church occurs in commerce -- not those in which the

22

offender relies on the channels and instrumentalities of commerce to carry out the

offense. We disagree with this unusually limited reading of § 247.

A.

The fundamental flaw in Appellant’s reading of § 247 is that it misconceives

the structure of the commerce power and the linguistic tools employed by Congress

in defining the jurisdictional reach of § 247. An interpretation of any statute

enacted pursuant to the commerce power must be informed by the content and

contours of Congress’ authority under the Commerce Clause and the linguistic

tools at its disposal to exert that power. In the case of § 247, only when the

statutory language is removed completely from the backdrop of the commerce

power from which it arises is there any ambiguity about its meaning. A glance at

the history of Commerce Clause legislation that preceded and informed § 247's

enactment makes plain that § 247’s express jurisdictional language -- requiring that

the offense is “in or affects commerce” -- is a term of art, whose settled,

specialized meaning can and must be given effect.

As we have already said, the Supreme Court in Lopez articulated three broad

categories of Congress’ Commerce Clause authority: regulation of the channels of

interstate commerce; regulation of the instrumentalities of interstate commerce;

and regulation of intrastate conduct that substantially affects interstate commerce.

23

See Lopez, 514 U.S. at 558-59. Congress may invoke any or all of these three

categories of commerce power in any piece of legislation. For this purpose, the

Supreme Court has taught, Congress has at its disposal a specialized set of

linguistic tools that enable it to clearly express just what type of commerce

authority it is asserting.

The history of Commerce Clause enactments reveals that the terms “in

commerce” and “affecting commerce” are ones Congress uses regularly to create

federal jurisdiction pursuant to its commerce power, and thus these terms have

taken on particularized meanings. See, e.g., Circuit City Stores, Inc. v. Adams,

532 U.S. 105, 115, 121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001) (observing that

“Congress uses different modifiers to the word ‘commerce’ in the design and

enactment of its statutes,” and that these modifiers have taken on very particular

meanings); United States v. Am. Building Maintenance Indus., 422 U.S. 271, 280,

95 S. Ct. 2150, 45 L. Ed. 2d 177 (1975) (observing that Congress has “repeatedly

acknowledged its recognition of the distinction between legislation limited to

activities ‘in commerce,’ and an assertion of its full Commerce Clause power so as

to cover all activity substantially affecting interstate commerce”). The “in

commerce” language denotes the first two Lopez categories -- regulation of the

channels and of the instrumentalities of commerce. The “affecting commerce”

24

language invokes the third Lopez category -- regulation of intrastate activities that

substantially affect commerce.

The words “affecting commerce,” as the Supreme Court has repeatedly

explained, are “words of art that ordinarily signal the broadest permissible exercise

of Congress’ Commerce Clause power.” Citizens Bank v. Alafabco, Inc., 539 U.S.

52, 56, 123 S. Ct. 2037, 156 L. Ed. 2d 46 (2003); see also Circuit City Stores, 532

U.S. at 115 (“The phrase ‘affecting commerce’ indicates Congress’ intent to

regulate to the outer limits of its authority under the Commerce Clause.”); Jones v.

United States, 529 U.S. 848, 856, 120 S. Ct. 1904, 146 L. Ed. 2d 902 (2000)

(noting “the recognized distinction between legislation limited to activities ‘in

commerce’ and legislation invoking Congress’s full power over activity

substantially ‘affecting . . . commerce’”); Allied-Bruce Terminix Cos. v. Dobson,

513 U.S. 265, 277, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995) (“[T]he words

‘affecting commerce’ . . . normally mean a full exercise of constitutional power”);

United States v. Odom, 252 F.3d 1289, 1293 (11th Cir. 2001). Accordingly, these

words invoke the third and broadest Lopez category -- the power to regulate

activities that substantially “affect” commerce.

The words “in commerce,” in sharp contrast, have a much narrower

meaning. The Court has not defined the exact parameters of the term, which may

25

vary by context, see Am. Building Maintenance, 422 U.S. at 277 (“The phrase ‘in

commerce’ does not, of course, necessarily have a uniform meaning whenever

used by Congress.”); it has, however, stressed repeatedly that “in commerce” is a

phrase that expresses Congress’ intent to invoke less than the full reach of its

commerce power. The Court has explained that, “[u]nlike [the phrases ‘involving

commerce’ and ‘affecting commerce’], . . . the general words ‘in commerce’ and

the specific phrase ‘engaged in commerce’ are understood to have a more limited

reach. . . . [T]he words ‘in commerce’ are ‘often-found words of art’ that we have

not read as expressing congressional intent to regulate to the outer limits of

authority under the Commerce Clause.” Circuit City Stores, 532 U.S. at 115-16

(quoting Allied-Bruce, 513 U.S. at 273); see also Am. Building Maintenance, 422

U.S. at 276 (noting that the “distinct” and “narrow” jurisdictional phrase “in

commerce” “cannot be satisfied merely by showing that the [activities in question]

affect commerce” (citation and internal quotation marks omitted)); id. at 280

(noting that by 1950, “the phrase ‘engaged in commerce’ had long since become a

term of art, indicating a limited assertion of federal jurisdiction”); Gulf Oil Corp. v.

Copp Paving Co., 419 U.S. 186, 195, 95 S. Ct. 392, 42 L. Ed. 2d 378 (1974).

Thus, a statute employing the language “in commerce,” the Court has said,

covers “only persons or activities within the flow of interstate commerce.” Allied-

26

Bruce, 513 U.S. at 273 (quoting Am. Building Maintenance, 422 U.S. at 276

(quoting Gulf Oil, 419 U.S. at 195)); see also Gulf Oil, 419 U.S. at 195 (“[T]he

distinct ‘in commerce’ language of the Clayton and Robinson-Patman Act

provisions with which we are concerned here appears to denote only persons or

activities within the flow of interstate commerce -- the practical, economic

continuity in the generation of goods and services for interstate markets and their

transport and distribution to the consumer.”).

For more than 175 years of Commerce Clause precedent, this much has been

clear: “Within the flow of commerce” denotes movement or people or things

across interstate borders. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-

90, 6 L. Ed. 23 (1824) (“Commerce, undoubtedly, is traffic, but it is something

more: it is intercourse.”); Heart of Atlanta, 379 U.S. at 255-56 (noting that

“intercourse” includes “the movement of persons through more States than one”);

Champion v. Ames, 188 U.S. 321, 352, 23 S. Ct. 321, 47 L. Ed. 492 (1903)

(“Commerce was defined in Gibbons v. Ogden to be ‘intercourse,’ and the

thousands of people who daily pass and repass over this bridge may be as truly said

to be engaged in commerce as if they were shipping cargoes of merchandise from

New York to Liverpool.” (citation omitted) (quoting Covington & Cincinnati

Bridge Co. v. Kentucky, 154 U.S. 204, 218, 14 S. Ct. 1087, 38 L. Ed. 962 (1894)));

27

id. at 351 (“Commerce with foreign countries and among the states, strictly

considered, consists in intercourse and traffic, including in these terms navigation

and the transportation and transit of persons and property, as well as the purchase,

sale, and exchange of commodities.” (quoting County of Mobile v. Kimball, 102

U.S. 691, 702, 12 Otto 691, 26 L. Ed. 238 (1880))); Camps Newfound/Owatonna,

Inc. v. Town of Harrison, 520 U.S. 564, 573, 117 S. Ct. 1590, 137 L. Ed. 2d 852

(1997) (“[T]he transportation of persons across state lines . . . has long been

recognized as a form of ‘commerce.’”). Accordingly, the jurisdictional language

“in commerce” invokes Congress’ authority to regulate only the channels within

which people and goods move through the flow of commerce, as well as the

instrumentalities used to facilitate that movement -- that is, the Lopez 1 and Lopez

2 powers. A statute that uses only the “in commerce” language stops well short of

invoking Congress’ Lopez 3 power to regulate activities outside the channels and

instrumentalities of commerce that nonetheless substantially “affect” commerce.

Recognizing the importance of preserving easy linguistic tools by which

Congress can articulate just how much of its commerce power it may choose to

exert in a particular statutory enactment, the Supreme Court has been unwavering

in its interpretation of these commerce-modifying terms. See, e.g., Am. Building

Maintenance, 422 U.S. at 280 (“[T]he Court ha[s] drawn a sharp distinction

28

between activities in the flow of interstate commerce and intrastate activities that

affect interstate commerce.”). Their meanings are well settled, and the Court

consistently declines to alter them. See, e.g., Circuit City Stores, 532 U.S. at 117

(“The Court’s reluctance to accept contentions that Congress used the words [in a

manner inconsistent with their standard meanings] rests on sound foundation, as it

affords objective and consistent significance to the meaning of the words Congress

uses when it defines the reach of a statute.”); Am. Building Maintenance, 422 U.S.

at 280-81 (citing the NLRA and the Bituminous Coal Act of 1937 as examples of

Congress’ use of “affecting commerce,” and the 1950 amendment to section 7 of

the Clayton Act as an example of a decision by Congress to “retain[] the narrower

‘in commerce’ formulation”).

In fact, the Supreme Court has rejected the suggestion that “in commerce”

and “affecting commerce” may be conflated or read interchangeably: “The

contention that ‘in commerce’ should be read as if it meant ‘affecting interstate

commerce’ was emphatically rejected [by the Court in FTC v. Bunte Bros., 312

U.S. 349, 61 S. Ct. 580, 85 L. Ed. 881 (1941)].” Am. Building Maintenance, 422

U.S. at 276. So “far-reaching” an application of the statute in question, the Court

said, “ought to await a clearer mandate from Congress.” Id. at 277. The Bunte

Bros. decision “stressed the distinction between unfair methods of competition ‘in

29

commerce’ and those that ‘affected commerce,’ in limiting the scope of the

[FTC’s] authority under the ‘in commerce’ language.” Id. at 280.

In Scarborough v. United States, 431 U.S. 563, 97 S. Ct. 1963, 52 L. Ed. 2d

582 (1977), the Court reiterated this point. At issue in Scarborough was the

meaning of Title 18 U.S.C. § 1202(a), which penalizes any felon “who receives,

possesses, or transports in commerce or affecting commerce” a firearm. § 1202(a)

(emphasis added). Again, the Court observed that “Congress is aware of the

distinction between legislation limited to activities ‘in commerce’ and an assertion

of its full Commerce Clause power so as to cover all activity substantially affecting

interstate commerce.” Scarborough, 431 U.S. at 571 (citation and internal

quotation marks omitted). Thus, the Court found it “apparent that . . . by

prohibiting both possessions in commerce and those affecting commerce, Congress

must have meant more than to outlaw simply those possessions that occur in

commerce or in interstate facilities.” Id. at 572.

The Supreme Court similarly declined to conflate the phrase “used in” with

“affect” in Jones v. United States, a case interpreting the federal arson statute, §

844(i). In Jones, the Court assigned great significance to the particular commerce-

modifying language selected by Congress, observing that “Congress did not define

the crime described in § 844(i) as the explosion of a building whose damage or

30

destruction might affect interstate commerce,” but rather “require[d] that the

damaged or destroyed property must itself have been used in commerce or in an

activity affecting commerce.” Jones, 529 U.S. at 854 (alteration in original)

(emphasis added) (quoting United States v. Mennuti, 639 F.2d 107, 110 (2d Cir.

1981). The Court refused to read § 844(i) so that “the statute’s limiting language,

‘used in’ any commerce-affecting activity, would have no office,” noting that

“[j]udges should hesitate . . . to treat statutory terms in any setting [as surplusage],

and resistance should be heightened when the words describe an element of a

criminal offense.” Id. at 857 (omission and second alteration in original) (quoting

Ratzlaf v. United States, 510 U.S. 135, 140-41, 114 S. Ct. 655, 126 L. Ed. 2d 615

(1994)).

Even if we had any doubt whether Congress was using “in commerce” and

“affects commerce” as terms of art in this case, looking to the pre-1996 version of

§ 247 would erase all uncertainty on this score. Prior to its amendment in 1996, §

247 specifically prohibited the destruction of religious property when, in

committing the offense, the defendant traveled in interstate commerce. The pre-

1996 statute provided in pertinent part:

(a) Whoever in any of the circumstances referred to in subsection (b) of this

section --

(1) intentionally defaces, damages, or destroys any religious real property,

because of the religious character of that property, or attempts to do so; or

31

....

shall be punished as provided in subsection (c) of this section.

(b) The circumstances referred to in subsection (a) are that --

(1) in committing the offense, the defendant travels in interstate or foreign

commerce, or uses a facility or instrumentality of interstate or foreign

commerce in interstate or foreign commerce; and

(2) in the case of an offense under subsection (a)(1), the loss resulting from

the defacement, damage, or destruction is more than $10,000.

Pub. L. No. 100-346, § 1, 102 Stat. 644 (1988).

In amending the statute eight years later, Congress simply substituted in the

jurisdictional language “that the offense is in or affects interstate or foreign

commerce” for the original jurisdictional language that “in committing the offense,

the defendant travels in interstate or foreign commerce, or uses a facility or

instrumentality of interstate or foreign commerce in interstate or foreign

commerce.” All that Congress did was (1) employ the shorthand “in commerce”

rather than describing the substantive requirement of use of the channels or

instrumentalities of commerce; and (2) expand the jurisdictional hook to cover

offenses that “affect” commerce, thereby invoking for the first time all of its

commerce power. As the House Report accompanying the bill explained, the

purpose of revising the jurisdictional language was to “simplif[y] the interstate

commerce requirement of the current law,” H.R. Rep. No. 104-621, at 2, reprinted

in 1996 U.S.C.C.A.N. 1082, 1083, whose “highly restrictive and duplicative

32

language” made it difficult to prosecute cases under § 247, id. at 4, reprinted in

1996 U.S.C.C.A.N. at 1085. Notably, the amendment left the definition of the

offense itself alone, altering only the jurisdictional scope of the statute. In fact, the

new language was specifically drafted to mirror the Supreme Court’s articulation

in Lopez of the nature and extent of the commerce power. See id. at 7, reprinted in

1996 U.S.C.C.A.N. at 1088 (“This Committee is aware of the Supreme Court’s

ruling in United States v. Lopez . . . . [The amended § 247], by contrast [to the

statute struck down in Lopez], specifically limits its reach to conduct which can be

shown to be in or to affect interstate commerce.”).

Simply put, § 247 contains unambiguous jurisdictional language -- covering

offenses in or affecting commerce -- that must be given its proper effect. In this

important respect, § 247 differs significantly from the statute invalidated in Lopez,

which did not contain any clarifying jurisdictional statement, see Lopez, 514 U.S.

at 561, thus leaving substantial ambiguity about which type of commerce power

Congress intended to exert, see id. at 559. Here, in sharp contrast, by using the

phrase “in or affects commerce,” Congress has clearly invoked Lopez category 3 --

its power to regulate activities that substantially affect interstate commerce -- as

well as categories 1 and 2 -- its power to regulate the use of the channels and

instrumentalities of interstate commerce. Ballinger plainly used both channels and

33

instrumentalities of commerce to facilitate his eleven-church arson spree; thus, he

committed his offenses “in commerce” within the precise meaning of the statute.

Any other reading would contravene more than a century of Commerce Clause

precedent by failing to give the jurisdictional words expressly chosen by Congress

in amending § 247 their long-settled meanings.

Indeed, Ballinger’s interpretation of § 247 would read the “in commerce”

language out of the statute altogether. The Appellant’s circumscribed construction

of § 247 as applying only when the ultimate destruction of the church itself

happens in commerce (or affects commerce) effectively excises the “in commerce”

basis for jurisdiction from the statute. In fact, the Appellant argued explicitly to

the en banc Court that Ҥ 247 applies only to cases having a substantial effect on

interstate commerce, and does not apply to situations where the offense was

committed or facilitated through the instrumentalities of interstate commerce, or

through interstate travel.” Appellant’s En Banc Br. at 20. Although the Appellant

offered at oral argument several strained examples of offenses he believed would

be “in commerce,” his argument in his brief that § 247 applies “only to cases

having a substantial effect on interstate commerce” suggests that even he believes

his interpretation of “in commerce” to be virtually impossible to satisfy.

The Appellant’s remarkably constricted reading of the “in commerce”

34

language effectively strips those words of any force at all. It is difficult to imagine

a case that more classically depicts arson occurring in commerce than Ballinger’s.

If § 247's prohibition on destroying religious property in commerce does not reach

Ballinger’s four-state church-arson spree, there is implausibly little, if any, conduct

it actually proscribes. To dream up an offense in which the final act of destruction

actually occurs “in commerce” is difficult, if not impossible. Even if the

perpetrator were to ignite a fire in Florida, for example, just over the Georgia state

line, and wait for it to burn its way across the border to a nearby Georgia church,

the offense, as the Appellant sees it, would still not be in commerce because the act

of destruction, though set into motion in Florida, actually occurs in Georgia.

As this example illustrates, the Appellant’s cramped reading of the offense

as comprising only the ultimate destruction of the targeted property severs

unnaturally the offender from the offense. Section 247’s regulatory and punitive

focus is clearly on the offender, providing that “Whoever . . . defaces, damages or

destroys any religious real property . . . shall be punished,” § 247(a) (emphasis

added); nevertheless, the Appellant’s reading accommodates only the offense. A

more reasonable reading would acknowledge that the offense is more than the last

step in a sequence of acts that add up to the statutorily prohibited conduct. Travel

to the site of the fire and procurement of the materials for the specific purpose of

35

burning a church are necessary and indispensable steps in committing arson.

When the arsonist takes these steps in interstate commerce, his offense falls within

Congress’ power to regulate the channels and instrumentalities of commerce under

all but the most artificially constrained reading of “offense.”

By discarding the “in commerce” basis for jurisdiction, Ballinger has

essentially redrafted the statute to read something like this: “Whoever substantially

affects interstate commerce by defacing, damaging, or destroying religious

property . . . shall be punished.” This reading ignores the fact that Congress

explicitly, on the face of the statute, used a disjunctive “in or affects” commerce

jurisdictional predicate. In addition to dispensing with the plain language of the

statute, the Appellant’s reading disregards the Supreme Court’s repeated

admonition that the terms “in commerce” and “affect commerce” must be given

their separate and distinct meanings. Moreover, this effective rewriting of the

statute strips Congress of its constitutional authority to regulate the channels and

instrumentalities of commerce (Lopez 1 & 2), leaving it with only its less-well-

defined power to regulate purely intrastate activities that may substantially “affect”

commerce (Lopez 3).

In addition to eviscerating the statute substantively, reading out “in

commerce” contravenes basic canons of statutory interpretation. For one, an

36

interpretation that fails to give any meaning at all to the statute’s “in commerce”

language violates “‘a cardinal principle of statutory construction’ that ‘a statute

ought, upon the whole, to be so construed that, if it can be prevented, no clause,

sentence, or word shall be superfluous, void, or insignificant.” TRW, Inc. v.

Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001) (quoting

Duncan v. Walker, 533 U.S. 167, 174, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001));

see also Leocal v. Ashcroft, No. 03-583, slip op. at 10 (S. Ct. Nov. 9, 2004) (“[W]e

must give effect to every word of a statute wherever possible . . . .”); TRW, 534

U.S. at 31 (“We are ‘reluctant to treat statutory terms as surplusage in any setting,’

and we decline to do so here.” (quoting Duncan, 533 U.S. at 174)); United States

v. Meansche, 348 U.S. 528, 538-39, 75 S. Ct. 513, 99 L. Ed. 615 (1955) (“It is our

duty ‘to give effect, if possible, to every clause and word of a statute.’” (quoting

Montclair v. Ramsdell, 107 U.S. 147, 152, 17 Otto 147, 2 S. Ct. 391, 27 L. Ed. 431

(1883))).

Ballinger does not contend that it is impossible to give effect to the “in

commerce” language. Indeed, to give meaning to the phrase “in commerce”

requires looking no further than the Supreme Court’s repeated statement that those

words refer to “persons or activities within the flow of interstate commerce.”

Allied-Bruce, 513 U.S. at 273 (quoting Am. Building Maintenance, 422 U.S. at

37

276 (quoting Gulf Oil, 419 U.S. at 195)). Accordingly, the only way to read § 247

is as covering arsons that “affect commerce” and arsons that occur “within the flow

of interstate commerce.” “[C]ourts must presume that a legislature says in a statute

what it means and means in a statute what it says there.” Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 117 L. Ed. 2d 391 (1992). Here,

Congress said -- and plainly meant -- that arson is an offense that can not only

affect commerce, but also actually occur in commerce. Thus, we cannot, as

Appellant would have us do, see Appellant’s En Banc Br. at 20, simply dismiss the

possibility that arson could ever occur “in commerce.”

In addition, reading the linguistically rich term “in commerce” out of the

statute violates the principle that statutory language must be read in the context of

the purpose it was intended to serve. Congress does not write statutes for the

words -- it writes them for the meaning. Accordingly, words must be read to have

a purpose, and from their purpose they cannot be delinked. The Supreme Court

has explained: “As in all cases of statutory construction, our task is to interpret the

words of these statutes in light of the purposes Congress sought to serve.”

Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608, 99 S. Ct. 1905, 60

L. Ed. 2d 508 (1979) (emphasis added). “[N]othing is better settled than that

statutes should receive a sensible construction, such as will effectuate the

38

legislative intention, and, if possible, so as to avoid an unjust or absurd

conclusion.” In re Chapman, 166 U.S. 661, 667, 17 S. Ct. 677, 41 L. Ed. 1154

(1897). The Appellant, by rendering “in commerce” nothing more than empty

words, has severed that phrase from its purpose, in contravention of the basic

principle that the words of a statute are written to fill a purpose, not to fill a page.

The few examples the Appellant offered at oral argument of offenses that

would be “in commerce” under his interpretation illustrate the anomalous results

produced by his reading. For example, Ballinger argued that sending a bomb to a

church by mail would place that offense in commerce, since the mail is an

instrumentality of commerce; however, we see no principled reason why mailing a

bomb should constitute destruction of a church in commerce, whereas intentionally

using a car -- another instrumentality of commerce -- to cross an interstate border

and deliver the bomb oneself would not.

Ballinger contends further that using a cellular telephone as a mechanism for

detonating a bomb might place the resulting church destruction in commerce. This

may well be true; however, we can divine no reason to conclude that using a cell

phone to detonate the bomb directly would be enough, but using a cell phone to

call a co-conspirator in another state for the express purpose of instructing him to

detonate the bomb would not. The Appellant’s effort to distinguish the two cases

39

on the ground that the actual destruction of the church occurs in commerce under

the former circumstances but not under the latter is strained to the breaking point.

Because this Court “need not and should not countenance” an interpretation of

statutory language that “leads to ‘absurd or futile results . . . “plainly at variance

with the policy of the legislation as a whole,”’” Equal Employment Opportunity

Comm’n v. Commercial Office Prods. Co., 486 U.S. 107, 120, 108 S. Ct. 1666,

100 L. Ed. 2d 96 (1988) (quoting United States v. Am. Trucking Ass’ns, Inc., 310

U.S. 534, 543, 60 S. Ct. 1059, 84 L. Ed. 1345 (1940) (quoting Ozawa v. United

States, 260 U.S. 178, 194, 43 S. Ct. 65, 67 L. Ed. 199 (1922))); see also United

States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981)

(“[A]bsurd results are to be avoided.”), we reject the Appellant’s reading.8

8

A further consequence of Ballinger’s reading “in commerce” out of the statute is that it

largely eviscerates the offense of attempt to deface, damage, or destroy religious property. By

its express language, § 247 covers not only completed acts of defacement, damage, or

destruction of property, but also “attempts to do so.” § 247(a) (“Whoever . . . intentionally

defaces, damages, or destroys any religious real property, because of the religious character of

that property, or attempts to do so . . . shall be punished . . . .”). “To sustain a conviction for the

crime of attempt, the government need only prove (1) that the defendant had the specific intent

to engage in the criminal conduct for which he is charged and (2) that he took a substantial step

toward commission of the offense.” United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir.

2004). A substantial step “must be more than remote preparation,” and must be conduct

“strongly corroborative of the firmness of the defendant's criminal intent.” United States v.

Mandujano, 449 F.2d 370, 377 (5th Cir. 1974).

Because Ballinger has effectively removed from § 247 the “in commerce” basis for

jurisdiction, precious few attempt offenses other than those that “affect commerce” remain

covered by the statute. Ballinger suggests that § 247 “only applies to situations where the

prosecution demonstrates that the offense of destroying or damaging religious real property has a

substantial impact on interstate or foreign commerce.” Appellant’s En Banc Br. at 43. Such an

40

effect, he asserts, can be demonstrated “only by virtue of the connection between the structure

and interstate commerce. The offense cannot have any impact on commerce other than through

the destroyed building itself . . . .” Id. at 45 (emphasis in original). Since the completed offense

of arson can affect commerce only insofar as the destruction of the church building has an

impact on commerce, it is virtually impossible to conjure up any instance in which a failed

attempt to destroy a church would have any effect -- let alone a substantial effect -- on interstate

commerce. Ballinger’s brief itself notes that “Section 247 even covers attempted church arson,

which would not even result in any damage to a piece of religious real property.” Appellant’s

Panel Br. at 41. A mere attempt, by definition, could not destroy church property; thus, the

Appellant’s interpretation largely reads the attempt offense out of the statute.

This substantial evisceration of the attempt crime thwarts Congress’ effort to reach with §

247 not only the culminating act of actually destroying a church, but also substantial preparatory

steps dangerously close to completing the offense, even when they ultimately miss their mark.

The Appellant’s suggestion that “the ‘offense’ must be measured solely by looking at the impact

on the building or a religious icon,” Appellant’s En Banc Br. at 52 (emphasis added), is wholly

incongruous with this effort. Furthermore, effectively stripping away the attempt language

violates the basic and much-repeated principle that a statute must be construed so that no

sentence, phrase, or word is rendered superfluous, void, or insignificant.

Moreover, reading § 247's attempt language, as the elements of attempt suggest it should

be read, to cover those cases in which a “substantial step” toward destroying a church happens

“in commerce” only magnifies the difficulty inherent in Appellant’s interpretation. It would

make little sense to conclude that when an arsonist takes a substantial preparatory step in

commerce, the government can prosecute him for an attempt to destroy a church if his efforts

fail, but not for the completed offense of church destruction should his attempt succeed. Thus,

for example, travel in interstate commerce to the site of a target church, with the intent to burn

that church, would constitute a substantial step in commerce; thus, if the would-be arsonist then

sets a bomb that malfunctions and fails to detonate, he presumably could be prosecuted for his

attempt to destroy the church. However, if the bomb detonates as intended and actually destroys

the church, the arsonist could not be prosecuted because, under the Appellant’s interpretation,

the ultimate act of destruction must occur in commerce -- travel in interstate commerce to

commit the offense is not enough to create jurisdiction over the completed offense.

This result is so remote that the doctrine of legal impossibility would likely bar the

attempt prosecutions anyway. “Legal impossibility,” we have explained, “occurs when the

actions which the defendant performs or sets in motion, even if fully carried out as he desires,

would not constitute a crime.” United States v. Oviedo, 525 F.2d 881, 883 (5th Cir. 1976). The

traditional view is that legal impossibility is a defense to the charge of attempt -- that is, if the

completed offense would not be a crime, neither is a prosecution for attempt permitted. See,

e.g., id.; see also Jeffrey F. Ghent, Annotation, Impossibility of Consummation of Substantive

Crime as Defense in Criminal Prosecution for Conspiracy or Attempt to Commit Crime, 37

A.L.R. 3d 375, §§ 2, 3 (2004). Quite simply, excising § 247's “in commerce” language not only

41

B.

The anomalous results produced by the Appellant’s strained reading of § 247

also plainly defeat the statute’s clear purpose. Ballinger suggests that § 247's

legislative history “is not relevant” because the statutory language is unambiguous.

Appellant’s En Banc Br. at 35. We agree that the statute is unambiguous, making

resort to legislative history unnecessary. Indeed, we mention the legislative history

only insofar as Ballinger suggests that there may be some ambiguity in the

jurisdictional scope of § 247, and in response to Ballinger’s argument that the

purpose of the 1996 amendment to § 247 was to contract the statute’s jurisdiction.

See id. at 30-32; 35; 41.

Section 247 was amended in 1996 in response to a national epidemic of

burnings of predominantly African-American churches, particularly in the

southeastern United States. H.R. Rep. No. 104-621, at 2-4 (1996), reprinted in

1996 U.S.C.C.A.N. 1082, 1083-85; 142 Cong. Rec. S7908-4, S7908 (1996) (joint

statement of Sens. Faircloth and Kennedy and Reps. Hyde and Conyers). The

statute’s original jurisdictional language, Congress found, was too complex and too

restrictive to facilitate prosecutions of these offenses. See id. In fact, only one

prosecution had been brought under § 247 since its enactment in 1988. See H.R.

eviscerates half of the statute’s express jurisdictional basis, but also severely undercuts its

explicit proscription of “attempts” to destroy religious property.

42

Rep. No. 104-621, at 4, reprinted in 1996 U.S.C.C.A.N. at 1095. As we have

noted, the pre-1996 version of the statute allowed prosecution for intentional

defacement, damage, or destruction of religious property when: “(1) in committing

the offense, the defendant travels in interstate or foreign commerce, or uses a

facility or instrumentality of interstate or foreign commerce in interstate or foreign

commerce; and (2) . . . the loss resulting from the defacement, damage, or

destruction is more than $10,000.” Pub. L. No. 100-346, § 1, 102 Stat. 644 (1988).

The 1996 amendment to the statute removed both the $10,000 monetary loss

requirement and the requirement of interstate travel or use of a facility or

instrumentality of commerce, extending jurisdiction to all cases in which “the

offense is in or affects interstate or foreign commerce.” § 247(b).

Ballinger says that the removal of the language specifically prohibiting the

destruction of religious property when, in committing the offense, the defendant

traveled in interstate commerce means that travel in commerce is no longer enough

to establish jurisdiction. Appellant’s En Banc Br. at 35. However, the 1996

amendment removed interstate travel only as a jurisdictional requisite, not as a

jurisdictional ground.

The plain and literally expressed purpose of this revision was to extend the

reach of the statute. As the House Report accompanying the bill explains,

43

Congress envisioned that “it would no longer be necessary to establish as a

jurisdictional prerequisite that the defendant himself moved in interstate commerce

or used a facility in interstate commerce. Instead it would be enough to show that

his conduct had an impact on interstate commerce.” H.R. Rep. No. 104-621, at 10

(1996), reprinted in 1996 U.S.C.C.A.N. at 1091. The statute was therefore

amended in order to “broaden[] the jurisdictional scope of the statute by applying

criminal penalties if the offense ‘is in or affects interstate or foreign commerce.’

This formulation grants Federal jurisdiction, and thus extends the Attorney

General’s ability to prosecute cases, as to any conduct which falls within the

interstate commerce clause of the Constitution.” Id. at 1087-88; see also 142

Cong. Rec. at S7909 (joint statement of Sens. Faircloth and Kennedy and Reps.

Hyde and Conyers) (“The bill replaces subsection (b) with a new interstate

commerce requirement, which broadens the scope of the statute by applying

criminal penalties if the ‘offense is in or affects interstate or foreign commerce.’”

(emphasis added)).

Moreover, Congress specifically intended the amended § 247 to reach

offenses like Ballinger’s. The House and Senate reports both state that “[u]nder

this new formulation of the interstate commerce requirement, the Committee

intends that where in committing, planning, or preparing to commit the offense, the

44

defendant either travels in interstate or foreign commerce, or uses the mail or any

facility of interstate or foreign commerce, the statute will be satisfied.” H.R. Rep.

No. 104-621, at 7 (1996), reprinted in 1996 U.S.C.C.A.N. at 1088; 142 Cong. Rec.

at S7909 (joint statement of Sens. Faircloth and Kennedy and Reps. Hyde and

Conyers).

Congress could not have made clearer its intention to exercise its full

commerce power: the House Report specifically stated that § 247's “in or affects

interstate or foreign commerce” language “grants Federal jurisdiction . . . as to any

conduct which falls within the interstate commerce clause of the Constitution.”

H.R. Rep. No. 104-621, at 7, reprinted in 1996 U.S.C.C.A.N. at 1088 (emphasis

added). The Senate Report reiterated that “it is the intent of the Congress to

exercise the fullest reach of the Federal commerce power.” 142 Cong. Rec. at

S7909 (joint statement of Sens. Faircloth and Kennedy and Reps. Hyde and

Conyers). Plainly, the statute is designed to cover all proscribed conduct that

Congress may constitutionally reach. This is nothing more than the simple

principle that the greater includes the lesser. Applying this general rule to the

statute at hand leads inescapably to the conclusion that Ballinger has improperly

read the statute as excluding his conduct: Congress invoked its full commerce

power with the “in or affects commerce” language; Congress has the power, under

45

the Commerce Clause, to reach conduct like Ballinger’s; therefore, the statute

covers Ballinger’s offenses.

C.

A final, and to our thinking significant problem with Ballinger’s reading of §

247 is that it is wholly inconsistent with the Supreme Court’s -- and this Circuit’s -

- interpretation of the linguistically similar federal felon-in-possession statute. As

we have noted, in Scarborough v. United States, the Supreme Court interpreted the

meaning of 18 U.S.C. § 1202(a), which punishes certain individuals who

“receive[], possess[], or transport[] in commerce or affecting commerce” any

firearm. Observing that this provision could be read to require either that the act of

possession itself occur in commerce or simply that the firearm have moved in

commerce prior to an intrastate act of possession, the Court deemed the statutory

language “ambiguous at best.” Scarborough, 431 U.S. at 570. Significantly, the

Court noted that, although Congress did not choose language that explicitly

indicated that the offense of possession need not have “a present nexus with

commerce,” neither did the language indicate that a contemporaneous connection

with commerce was required. Id.

Thus, the Supreme Court did two things. First, it stressed the need to give

meaning to both the “in commerce” and the “affecting commerce” language. See

46

id. at 571. Reviewing the congressional findings accompanying the legislation, the

Court concluded that “it does seem apparent that in implementing these findings by

prohibiting both possessions in commerce and those affecting commerce, Congress

must have meant more than to outlaw simply those possessions that occur in

commerce or in interstate facilities.” Id. at 572.

Second, the Court looked to the legislative history, concluding that it

“further supports the view that Congress sought to rule broadly to keep guns out of

the hands of” felons and others. Id. The legislative history contained “no

indication that Congress intended to require any more than the minimal nexus that

the firearm ha[s] been, at some time, in interstate commerce.” Id. at 575.

Moreover, the Court noted that interpreting the statute as requiring the offense of

possession itself to occur in commerce “fails completely to fulfill the congressional

purpose” and “virtually eliminates the one offense on which Congress focused in

enacting the law.” Id. at 577. Accordingly, the Court rejected that view.

In interpreting § 247, we need look no farther than the methodology

employed by the Supreme Court in Scarborough to reach the conclusion that § 247

cannot be interpreted as requiring the ultimate act of destruction to occur in

commerce. Both the well-settled meaning of the statute’s “in or affects” commerce

language and the unambiguously expressed legislative intent lead us to the view

47

that travel in interstate commerce just prior to and for the purpose of destroying a

church places the offense within the reach of § 247. To avoid -- as the Court

sought to do in Scarborough -- stripping statutory language of meaning and

thwarting legislative purpose, this Court must read § 247 to cover offenses like

Ballinger’s.

Ballinger concedes, as he must, that the words of the felon-in-possession

statute are strikingly similar to the language employed in § 247. Nevertheless, he

argues that the felon-in-possession statute should be interpreted differently because

it is part of an overarching congressional scheme of gun regulation. This argument

hardly begins to explain why the language of a church arson statute is entitled to

less deference than the language of a gun statute. Moreover, Ballinger misses the

point that the similarity between the statutes lies not in the subject of their

regulation but in the linguistic tools used to invoke federal commerce jurisdiction.

Textually, the language of the two statutes is so similar that the method and

reasoning the Supreme Court applied in interpreting the language of the felon-in-

possession law offer an easy and practical approach to the linguistically parallel

arson statute.

Indeed, since Scarborough was decided, we have at least six times

reaffirmed and reapplied its holding. We initially adopted the reasoning of

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Scarborough in United States v. Standridge, 810 F.2d 1034 (11th Cir. 1987). In

1996, we reconsidered that decision in light of Lopez. In United States v.

McAllister, 77 F.3d 387 (11th Cir. 1996), we addressed the meaning of Title 18

U.S.C. § 922(g), the successor statute to § 1202(a), which was at issue in

Scarborough. Section 922(g) makes it unlawful for felons and certain other

individuals “to ship or transport in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition.” § 922(g)(1) (emphasis added).

We declared that the fact that “the firearm possessed by McAllister previously had

travelled in interstate commerce” satisfied the requirement that it be possessed in

commerce. McAllister, 77 F.3d at 390.

In spite of the statute’s literal language that the offender must “possess in

commerce” the firearm, in United States v. Reynolds, 215 F.3d 1210 (11th Cir.

2000), we again reiterated that § 922(g)’s jurisdictional requirement means that the

government must prove only “that the firearm possessed traveled in interstate

commerce,” -- not that the possession itself have occurred in commerce. Id. at

1215. Accordingly, Reynolds found the fact that the gun “was manufactured in

Connecticut and then traveled across state lines to Florida, where Reynolds

possessed it” was “sufficient to show the required nexus to interstate commerce.”

Id.

49

In 2001, this Court once more revisited the jurisdictional element of the

felon-in-possession statute, this time in light of the Supreme Court’s decision in

Morrison. In United States v. Dupree, 258 F.3d 1258 (11th Cir. 2001), we held

that “Morrison does not change the holding in McAllister and that § 922(g) is a

constitutional exercise of Congress’s commerce power.” Id. at 1259. We

determined that “by brandishing a firearm that was manufactured in California and

found in his car, [the defendant’s] actions satisfy [the jurisdictional requirement].”

Id. at 1260. A panel of the Court echoed the holding once more in United States v.

Scott, 263 F.3d 1270 (11th Cir. 2001), noting that nothing in Morrison or in Jones

v. United States (which held that the federal arson statute, 18 U.S.C. § 844(i), did

not reach a private residence), altered the holding in McAllister. See Scott, 263

F.3d at 1274. Thus, the fact that the “pistol that Scott possessed was manufactured

in California and had moved in interstate commerce to Georgia where Scott was

caught with the weapon” was “sufficient to demonstrate the required nexus to

interstate commerce.” Id.; see also United States v. Clay, 355 F.3d 1281, 1287

(11th Cir. 2004) (holding that § 922(g)’s “possess in or affecting commerce”

language covered an offense in which the only evidence of a nexus between the

weapon and commerce was an inscription on the barrel reading, “Colt

Manufacturing Company, Hartford, Ct.,” since the jury could “rationally infer[]”

50

from the inscription, coupled with the fact that the gun was seized in Georgia, that

the weapon had “traveled in or at least affected interstate commerce”). The

“possess in or affecting commerce” language of § 922(g) -- just like the “offense is

in or affects commerce” language found in § 247 -- “is a jurisdictional element of

that criminal offense.” Clay, 355 F.3d at 1286.

Simply put, the Appellant’s cramped construction of the jurisdictional

language employed by Congress in § 247 is wholly at odds with the approach this

Circuit has repeatedly taken to the nearly identical language found in § 922(g). In

short, we read § 247 as requiring that the offender utilize the channels or

instrumentalities of interstate commerce in carrying out his crime -- not that the

ultimate actus reus of destroying the church itself somehow occur in commerce.

IV.

The nature and history of the commerce power, the plain language of § 247,

and the long-accepted meaning of the term “in commerce,” along with the

accompanying legislative history and the interpretation of the linguistically similar

felon-in-possession statute, all yield the conclusion that Congress did, in fact,

proscribe Ballinger’s conduct, and that it had the power to do so. Accordingly, we

affirm Ballinger’s convictions.

AFFIRMED.

51

EDMONDSON, Chief Judge, concurs in the result.

52

TJOFLAT, Circuit Judge, dissenting, in which BIRCH and HILL, Circuit Judges,

join:

The court holds that 18 U.S.C. § 247, which provides that “[w]hoever . . .

intentionally defaces, damages, or destroys any religious real property, because of

the religious character of that property, or attempts to do so . . . shall be punished”

if “the offense is in or affects interstate or foreign commerce,” reaches a purely

local church arson so long as the arsonist crossed state lines prior to the offense. In

other words, the earlier travel places the offense itself “in . . . interstate . . .

commerce.” Because I believe that a church arson is not “in commerce” simply

because the offender traveled from another state sometime prior to the offense and,

moreover, that so interpreted the statute exceeds Congress’s authority under the

Commerce Clause, I respectfully dissent. I agree with much of what is said in the

dissents Judges Hill and Birch have filed and write separately only to emphasize a

few points.

I

When Congress seeks to rely on interstate travel as a basis for exercising its

authority under the Commerce Clause, it knows how to do so. As the panel

majority noted, “[t]here are numerous federal statutes which do, explicitly, forbid

movement in interstate commerce in order to commit a traditional common-law

crime.” United States v. Ballinger, 312 F.3d 1264, 1273 n.8 (11th Cir. 2002)

53

(collecting statutes). And more important for present purposes, prior to its

amendment in 1996, § 247 itself reached cases in which, “in committing the

offense, the defendant travels in interstate or foreign commerce, or uses a facility

or instrumentality of interstate or foreign commerce in interstate or foreign

commerce.” In 1996, this provision was deleted and replaced with the current §

247(b), which extends only to cases in which “the offense is in or affects interstate

or foreign commerce.”

The court, however, now reads the old interstate travel provision back into

the statute, as if the 1996 amendment had never occurred, despite the fact that it is

unable to cite a single case that holds that an offense is “in commerce” simply

because the offender crossed state lines at some point prior to its commission. In

reaching this conclusion, the court makes much of the narrowness of the contrary

interpretation urged by the appellant and relies on the principle that, whenever

possible, a statute should be read in a way that gives effect to all of its words.

Indeed, the court faults the appellant for failing to identify satisfactorily those

offenses other than his own that might be considered “in commerce.” Ante, at 22.

I am uncertain what, if any, church arson might be “in commerce.” It is, however,

clear to me that a church arson is not “in commerce” simply because the arsonist

came from another state at some point prior to the offense. The rule that statutes

54

should be read so as not to render words insignificant is a general principle of

statutory interpretation, not an inflexible rule.1 Therefore, we need not do violence

to the statutory language simply to satisfy ourselves that we have given all the

words of § 247 a function. The court says that “Congress does not write statutes

for the words—it writes them for the meaning.” Ante, at 38. The court, in turn,

has applied § 247’s (perceived) meaning rather than its words.

II

I agree fully with the court that the “congressional power to regulate the

channels and instrumentalities of commerce includes the power to prohibit their

use for harmful purposes, even if the targeted harm occurs outside the flow of

commerce and is purely local in nature.” Ante, at 12. That congressional power,

however, is not implicated by this case. Rather, the court has interpreted § 247 to

reach a crime that is purely local in nature simply because the defendant crossed

state lines prior to its commission. Thus, what the court interprets the statute to

regulate is the purely local intrastate crime, not the use of the channels and

instrumentalities of commerce for a harmful purpose.

In its opinion, the court cites a number of federal criminal statutes that

1

The court itself quotes cases stating that every word should be given effect “if possible”

or “wherever possible” or that the Supreme Court was “reluctant to treat statutory terms as

surplusage.” Ante, at 37.

55

criminalize interstate travel for illicit purposes, as well as several early Supreme

Court cases upholding such statutes. Ante, at 19-20 & n.6. Those statutes,

however, are unlike § 247 because they do in fact regulate the channels and

instrumentalities of commerce.2 Under such statutes, the offender commits a crime

2

In note 7 of the opinion, the court contends that 18 U.S.C. § 2118(a) is like § 247.

Section 2118(a) provides:

Whoever takes or attempts to take from the person or presence of another by force

or violence or by intimidation any material or compound containing any quantity

of a controlled substance belonging to or in the care, custody, control, or

possession of a person registered with the Drug Enforcement Administration

under section 302 of the Controlled Substances Act (21 U.S.C. 822) shall . . . be

fined under this title or imprisoned not more than twenty years, or both, if (1) the

replacement cost of the material or compound to the registrant was not less than

$500, (2) the person who engaged in such taking or attempted such taking

traveled in interstate or foreign commerce or used any facility in interstate or

foreign commerce to facilitate such taking or attempt, or (3) another person was

killed or suffered significant bodily injury as a result of such taking or attempt.

This statute is valid, however, not because of the interstate travel provision, but rather because it

“form[s] an essential part of a larger regulation of economic activity, namely the manufacture,

distribution and possession of controlled substances, in which the overall regulatory scheme

could be undercut unless the intrastate activity were regulated.” United States v. Workman, 990

F. Supp. 473, 475 (S.D. W. Va. 1998) (upholding § 2118(b), which criminalizes entering or

attempting to enter the premises or property of a person registered with the DEA with the intent

to steal a controlled substance). Moreover, the statute itself indicates that the interstate travel

provision is not relied upon to establish jurisdiction under the Commerce Clause, for even where

no interstate travel is involved the statute reaches cases in which the controlled substance taken

was worth at least $500 or another person was killed or seriously injured in the course of the

crime.

Similarly, the other two statutes discussed in note 7 of the court’s opinion, 21 U.S.C. §

331(k), which criminalizes the adulteration or misbranding of any article subject to FDA

regulation “while such article is held for sale . . . after shipment in interstate commerce,” and the

old felon-in-possession statute addressed in Scarborough v. United States, 431 U.S. 563, 97 S.

Ct. 1963, 52 L. Ed. 2d 582 (1977), which made it a crime for a felon to “possess[] or transport[]

in commerce or affecting commerce, . . . any firearm,” are within Congress’s commerce power

because they are part of a larger regulation of economic activity, namely, the regulation of drugs,

etc., in one case, and the regulation of guns, etc., in the other. See United States v. Sullivan, 332

U.S. 689, 68 S. Ct. 331, 92 L. Ed. 297 (1948) (upholding the FDA provision as a valid exercise

of “the constitutional power of Congress under the commerce clause to regulate the branding of

articles that have completed an interstate shipment and are being held for future sales in purely

56

as soon as he begins travel in interstate commerce for the harmful purpose because

that is precisely what is made criminal—the movement in commerce for the

harmful purpose. In those cases, the use of the channels of commerce and the

offense itself are inextricably intertwined, and Congress has properly regulated the

channels and instrumentalities of interstate commerce. Here, in contrast, there is

no suggestion that § 247 criminalizes mere travel with the unlawful purpose or

regulates, for example, the interstate transportation of persons for the purpose of

committing church arson. Rather, the statute unambiguously regulates the purely

local defacement or destruction of religious real property itself. This distinction

does not, as the court contends, “conflate[] the constitutional question with the

statutory interpretation question.” Ante, at 20. Indeed, the Supreme Court

acknowledged this very difference in Caminetti v. United States, 242 U.S. 470, 37

S. Ct. 192, 61 L. Ed. 442 (1917):

It may be conceded, for the purpose of the argument, that Congress

has no power to punish one who travels in interstate commerce merely

because he has the intention of committing an illegal or immoral act at

the conclusion of the journey. But this act is not concerned with such

local or intrastate commerce” (citing, inter alia, Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82,

87 L. Ed. 122 (1942))); Scarborough, 431 U.S. at 576, 97 S. Ct. at 1969 (1977) (reasoning that a

narrower interpretation of “in commerce or affecting commerce” would “create serious

loopholes in the congressional plan”). Thus, the court’s reliance on Scarborough and progeny is

misplaced, as Congress’s authority to regulate the possession of guns is part of its larger

authority to regulate the sale, distribution, and possession of guns—an economic activity—and

the statute refers not only to possession “in commerce,” but also to possession “affecting

commerce.”

57

instances. It seeks to reach and punish the movement in interstate

commerce of women and girls with a view to the accomplishment of

the unlawful purposes prohibited.

Id. at 491, 37 S. Ct. at 197. This statement, which only assumes the point for the

sake of argument, does not, of course, conclusively establish that the court’s

interpretation of § 247 is beyond Congress’s commerce power. But it does

demonstrate that there is a difference between this case and the cases on which the

court relies and, further, that the constitutional issue cannot be resolved simply by

way of citations to those cases. And once it is seen that this case is not controlled

by those precedents, it also becomes clear that the court’s interpretation of § 247 is

unconstitutional under United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131

L. Ed. 2d 626 (1995). Because the court’s reading of § 247 regulates a purely local

crime rather than the use of the channels or instrumentalities of commerce, it

cannot be sustained as an exercise of Congress’s “Lopez 1” or “Lopez 2” powers.

Nor, as the panel majority in this case has already demonstrated, can it be sustained

under “Lopez 3.” Ballinger, 312 F.3d at 1268-76.

III

My final quarrel with the majority opinion is that its ultimate holding is

obscure. As I have explained, I do not understand the court’s decision to hinge on

a determination that Ballinger actually crossed state lines with the intent to burn

58

churches; rather, I take the court to hold that § 247 reaches Ballinger’s conduct

simply because he crossed state lines at some point not too long before committing

the arson. If this is truly the holding of this case, then the obvious follow-up

question is how closely connected the border crossing and the arson must be for §

247 to apply. Ballinger, of course, began burning churches in Georgia soon after

arriving there, so this is, for the court, an easy case. But would § 247 still apply if

he had waited a week? What about a month? Or what if Ballinger had actually

moved to Georgia, established a permanent residence, and then several months or

even years later committed the arson? I think it is likely that the court would draw

a line somewhere along this continuum, but I am not at all sure where it would be.

Nor can I imagine from whence such a rule would come, other than maybe our

own good judgment. Since there is no basis in the text of the statute itself for such

a rule, it—like the court’s interstate travel jurisdictional hook—would have to be

created out of whole cloth. If this is what the court means to hold, it would be

better to say so clearly and to go ahead and write the rule into the statute now so as

to at least give the district courts and the Government some guidance going

forward. Instead, the court vaguely holds that § 247 applies whenever the arsonist

crosses state lines at some point prior to the offense. How close in time the border

crossing and the arson must be is a question that we apparently leave for another

59

day. Thus, although the court is willing to hold that § 247 contains a jurisdictional

hook that, on its face, it quite plainly does not, it is unwilling to say exactly what

that jurisdictional hook is.

It is possible, however, that I have misread the court’s opinion. At the outset

of the opinion, for example, the court does state that Ballinger “cross[ed] the

borders of four states for the purpose of burning churches.” Ante, at 2. And later

on, the court states that Ballinger made “at least six separate border crossings, all

for the specific purpose of spreading the evil of church burning through four

different states,” and, quoting the panel dissent, that “the immediacy with which he

set out to burn churches once he arrived and the absence of any indication that he

had other business in Georgia demonstrate that he used the channels for the

purpose of committing arson.” Ante, at 17-18 (quoting Ballinger, 312 F.3d at 1278

(Hall, J., dissenting)).

Does this mean that the court does, in fact, hold that § 247 applies only when

the defendant actually traveled in interstate commerce with the intent to commit

church arson—i.e., that mere proof of travel and a subsequent arson is insufficient?

If so, then I think that the court has two problems. First, there is again nothing in

the text of the statute to support such a reading. Of course, a lack of textual

support will plague any interpretation of § 247 that reaches Ballinger’s conduct, so

60

I will move on to the second problem with this potential holding: neither the facts

charged in the indictment nor those to which Ballinger stipulated as part of his plea

agreement support a finding that he actually crossed state lines with the intent to

burn churches. The indictment merely tracks the statutory language, charging that

the arson was committed “under circumstances such that [it] was in and affecting

interstate commerce.” Moreover, Ballinger stipulated that he and his girlfriend left

Indiana “partly out of concern about a call by an FBI agent to Ballinger’s parent’s

home in Indiana.” He also stipulated that he did not purchase the gasoline used in

the Georgia fires until he was actually in Georgia. Nowhere does he specifically

admit that he crossed state lines with the intent to burn churches or traveled for that

specific purpose. Thus, if the court has in fact rewritten § 247 to make interstate

travel with the intent to commit church arson an element of the offense, then the

conviction should be vacated because there is no evidence in the record of such an

intent. See, e.g., United States v. Gamboa, 166 F.3d 1327, 1331 n.4 (11th Cir.

1999) (“A court cannot accept a guilty plea unless it is satisfied that the conduct to

which the defendant admits constitutes the offense charged.”); United States v.

White, 258 F.3d 374, 380 (5th Cir. 2001) (“notwithstanding an unconditional plea

of guilty, we will reverse on direct appeal where the factual basis for the plea as

61

shown of record fails to establish an element of the offense of conviction”).3

To reiterate, I do not think this shortcoming really matters to the court’s

holding, as I understand the holding to be that the crime is the church arson and

that the prior border crossing is a sufficient jurisdictional hook whether intent was

present during that interstate travel or not. Indeed, the very fact that the court has

rendered this point a nonissue underscores the difference between federal statutes

that criminalize interstate travel for an illicit purpose and the statute we address

3

On appeal, Ballinger does not specifically argue that his conviction should be vacated

on this ground. This is understandable. In the part of its opinion holding that the charged

offenses “occurred in interstate commerce,” the district court stated the following:

[D]efendant traveled through Indiana, Kentucky, and Tennessee on his way to

Georgia and then back through Kentucky thereafter. Defendant utilized interstate

highways, gas stations, hotels, and supplies and made various purchases in

interstate commerce to prepare for and accomplish a multi-state arson campaign

that ultimately targeted eleven churches in four different states. Although

defendant’s crimes in Indiana, Kentucky, and Tennessee are not presently before

this court, the stipulated factual basis illustrates that these transactionally-related

offenses constitute part of a larger campaign which may be fairly characterized as

an “offense . . . in or affect[ing] interstate or foreign commerce.” 18 U.S.C. §

247(b). This court is satisfied that on these grounds alone, defendant’s § 247

prosecution is constitutionally permissible.

The district court did not rest its determination that the offenses occurred “in commerce” on any

determination that Ballinger actually entered Georgia with the intent of burning churches.

Rather, the district court held that the border crossing by itself placed the subsequent offense “in

commerce” without regard to intent. If the majority’s interpretation of § 247 does, in fact,

require a showing of such an intent—and, again, my impression is that it does not—then it

differs significantly from the “in commerce” theory of the conviction the district court adopted.

Cf. App.’s En Banc Brief, at 29 (“In its Petition for En Banc Consideration, the government

contended that §247 is satisfied when a defendant travels across state lines at some unnamed

point prior to committing the offense.”), 34 (“The government never answers the question of . . .

how far in time this line crossing would continue [to satisfy the requirement that the offense be

‘in commerce’].”). It is, therefore, of no moment that Ballinger has not specifically argued the

point on appeal; if we are to create a new theory of the conviction on appeal, we must at least

ascertain whether the factual basis for the guilty plea in fact supports that theory.

62

here. If § 247 actually targeted interstate travel with the intent to commit church

arson, it would probably be constitutional, and we would have to decide whether

the stipulated factual basis for the plea is sufficient to establish intent and thus to

sustain the conviction. But such a reading of the statute would lack even the

faintest basis in its text, and I do not think that it is the interpretation that the

majority adopts. I mention the possibility only because the court’s opinion is less

than clear on this point, and if I am wrong and this is the court’s interpretation of

the statute, then the court should at least explain its basis for concluding that

Ballinger actually crossed state lines with the intent to commit church arson.

My confusion as to the holding of this case can be summarized in a few

short questions that the court seems to leave unanswered: First, under the court’s

interpretation of § 247, is it necessary to prove that the defendant traveled in

interstate commerce with the intent to commit church arson? I think the court

would answer, “no.” If that is the case, then how close in time must the border

crossing and the arson be for § 247 to apply? (And, as a matter of statutory

interpretation, how are we to decide where to draw the line?) If, however, the

court would answer my first question in the affirmative, what basis is there for

concluding that Ballinger crossed state lines with the intent to commit church

arson? Because all of these points remain unclear, the court’s opinion remains

63

unsatisfactory even if I assume that it reaches the correct result. Once these

ambiguities are cleared away, we are again left with purely intrastate offenses and

a federal prosecution of them that hangs solely on the offender’s earlier crossing

from one state into another. As such, the court’s discussion of Ballinger’s highway

travels, gasoline purchases, and hotel stays, and its citations to cases sustaining

convictions where the federal crime was the interstate travel itself, are simply

irrelevant and serve only to obscure the real issue and to create an illusion of a

connection to interstate commerce that simply does not exist in fact.

IV

Because § 247 cannot properly be interpreted to reach Ballinger’s conduct,

and because it would be unconstitutional even if it could, I respectfully dissent.

64

BIRCH Circuit Judge, dissenting, in which HILL, Circuit Judge, joins:

As to the majority opinion, I respectfully dissent. I fully concur in Judge

Hill’s dissent and add my following thoughts as well.

At its core, this case devolves into a simple, yet nuanced, question: does the

Commerce Clause grant the United States Congress the power to proscribe the

common law crime of arson by attaching the jurisdictional qualifier “in or affects

interstate commerce” to the anti-church-burning statute, 18 U.S.C. § 247? As

Judge Hill’s thorough and well-reasoned dissent points out, the majority’s noble

effort to uphold the constitutionality of § 247 through statutory construction fails to

consider what the statute actually penalizes, namely, a local common law crime

against property.1 While I fully concur with his opinion and analysis, Judge Hill’s

arguments can be magnified even further when viewed through the lens of

federalism, a concept which retains vitality and importance in our modern

constitutional scheme, see United States v. Lopez, 514 U.S. 549, 575, 115 S. Ct.

1624, 1637 (1995). Recognizing that § 247 regulates by federal statute an area of

criminal law traditionally reserved to the States, I write separately to emphasize

1

As Judge Hill notes, § 247 cannot be construed to penalize interstate travel to

accomplish an arson of religious real property because the proscription of such travel was

excised by Congress in 1996 when it amended the statute. By deleting the reference to interstate

travel and inserting the present language, Congress cast § 247’s reach “over a wider, and more

purely intrastate” category of common law crimes by outlawing the act of church-burning itself

if accomplished after the arsonist happened to cross State lines. See United States v. Morrison,

529 U.S. 598, 613, 120 S. Ct. 1740, 1752 (2000).

65

that the principles of federalism implicated in this case should have led the

majority to find that 18 U.S.C. § 247 represents an incursion into State police

powers not sanctioned by the United States Constitution.

I. Federalism and Its Relation to Commerce Clause Interpretation

It is axiomatic that the “Constitution creates a Federal Government of

enumerated powers.” Lopez, 514 U.S. at 552, 115 S. Ct. at 1626. Despite the rise

and fall of various constitutional doctrines, this bedrock principle has received

enduring, unfailing adherence. See McCulloch v. Maryland, 17 U.S. 316, 405

(1819) (noting that it is “universally admitted” that the federal government is “one

of enumerated powers”); Hammer v. Dagenhart, 247 U.S. 251, 275, 38 S. Ct. 529,

532 (1918) (same); United States v. Morrison, 529 U.S. 598, 607, 120 S. Ct. 1740,

1748 (2000). In accordance with this construct, “[e]very law enacted by Congress

must be based on one or more of its powers enumerated in the Constitution.”

Morrison, 529 U.S. at 607, 120 S. Ct. at 1748. Concomitant with this recognition

that federal legislative power is limited by the Constitution, however, is the

principle that legislative power not granted to Congress was reserved to the States.

See U.S. C ONST. amend. X; United States v. Darby, 312 U.S. 100, 124, 61 S. Ct.

451, 462 (1941) (noting that the Tenth Amendment “states but a truism that all is

retained which has not been surrendered”). The Framers thus established a

66

constitutional structure in which “[t]he powers delegated . . . to the federal

government are few and defined[;] [t]hose which are to remain in the State

governments are numerous and indefinite.” T HE F EDERALIST No. 45 (James

Madison). Accordingly, the Constitution ensures “a system of dual sovereignty

between the States and the Federal Government.” Gregory v. Ashcroft, 501 U.S.

452, 457, 111 S. Ct. 2395, 2399 (1991). This complex constitutional dynamic is

typically summarized by the single phrase “federalism.”

Realizing that the constitutional design mandated adherence to federalist

principles, federalism has informed jurisprudential analysis in a number of areas.

For example, federalism and respect for State sovereignty has led the Supreme

Court to caution against granting federal injunctions to enjoin pending State court

proceedings. See Younger v. Harris, 401 U.S. 37, 45, 91 S. Ct. 746, 751 (1971).

Likewise, a concern for federalist principles has led federal courts to refrain from

reversing a State court decision if that decision rests on adequate State grounds

independent of federal questions. See, e.g., Murdock v. City of Memphis, 87 U.S.

590, 635 (1875). Similarly, respect for the legislative competence of States has

dictated that federal courts sitting in diversity apply State rules of decision, see Erie

R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822 (1938) (noting that “the

Constitution of the United States . . . recognizes and preserves the autonomy and

67

independence of the States”), and State choice of law rules, see Klaxon Co. v.

Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021 (1941).

It is against this backdrop of federalism that the Commerce Clause is most

appropriately interpreted when a federal statute purports to regulate an area in

which State law traditionally occupied the field. The Constitution grants Congress

the power to “regulate Commerce with foreign Nations, and among the several

States . . . .” U.S. C ONST. art. I, § 8. This “express grant of power to regulate

commerce among the States has always been understood as limited by its terms.”

United States v. Dewitt, 76 U.S. 41, 44 (1869); see Lopez, 514 U.S. at 553, 115 S.

Ct. at 1627 (citing Gibbons v. Ogden, 22 U.S. 1 (1824) for the proposition that the

“limitations on the commerce power are inherent in the very language of the

Commerce Clause”). Thus, the Constitution relegates Congressional activity to

areas of interstate commerce. The Framers chose to limit the exercise of federal

power in this manner precisely to preserve a federalist system. See NLRB v. Jones

& Laughlin Steel Corp., 301 U.S. 1, 37, 57 S. Ct. 615, 624 (1937) (“[T]he scope of

this [Commerce Clause] power must be considered in the light of our dual system

of government . . . .). By restricting congressional activity to the regulation of

interstate commerce, the Constitution preserves the “‘distinction between what is

national and what is local’” lest a “‘completely centralized government’” wholly

68

occupy the legislative field. Lopez, 514 U.S. at 557, 115 S. Ct. at 1629 (quoting

Jones & Laughlin Steel Corp., 301 U.S. at 37, 57 S. Ct. at 624).

Admittedly, however, some federal regulation in areas traditionally reserved

to the States is required. Realizing that certain acts which are wholly intrastate in

character may affect interstate commerce, and thereby frustrate Congress’s express

power to regulate interstate commerce, the Supreme Court has permitted federal

regulation of such activity where it substantially affects interstate commerce in the

aggregate. See Wickard v. Filburn, 317 U.S. 111, 124-25, 63 S. Ct. 82, 89 (1942).

The Wickard decision, however, has been subsequently declared to be “perhaps the

most far reaching example of Commerce Clause authority over intrastate activity.”

Lopez, 514 U.S. at 560, 115 S. Ct. at 1630. Moreover, subsequent decisions

relying on Wickard have delimited its holding in two important and obvious ways

because of federalist concerns. First, federal regulation of intrastate activity must

regulate activity that is economic in nature. Morrison, 529 U.S. at 610, 120 S. Ct.

at 1750.2 This limitation recognizes that if the federal government is allowed to

2

Reading the cases in which federal regulations of intrastate activity have been upheld

under the Commerce Clause, this limitation could be refined even further to require that the

federal regulation promote the national economy, rather than simply affect it. See United States

v. Wrightwood Dairy Co., 315 U.S. 110, 120, 62 S. Ct. 523, 526 (1942) (noting that the Sherman

Antitrust Act could be applied to intrastate activity because anti-monopolistic conditions

promoted interstate commerce); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258,

85 S. Ct. 348, 358 (1964) (finding regulation of motels was permitted under Commerce Clause

because it promoted interstate commerce by encouraging unrestricted interstate travel); Perez v.

United States, 402 U.S. 146, 154-55, 91 S. Ct. 1357, 1362-63 (1971) (upholding federal

69

encroach upon noneconomic areas of State concern, federal regulation will crowd

out state legislation in contravention to the Constitution’s federalist dynamic. See

Lopez, 514 U.S. at 595, 115 S. Ct. at 1647 (Thomas, J., concurring) (noting that the

power to regulate “intrastate commerce” which substantially affects interstate

commerce does not sanction federal regulation of intrastate “activities” unrelated to

commerce). Second, federal enactments reaching intrastate commerce must have a

sufficient nexus to interstate activity. Id. at 562-63; see Maryland v. Wirtz, 392

U.S. 183, 196, 88 S. Ct. 2017, 2024 (1968) (“The subject of federal power is still

‘commerce,’ and not all commerce but commerce . . . among the several States.”)

(citation omitted). The Court relegated Wickard’s reach in this manner because, if

the federal government were allowed “to take over the regulation of entire areas of

traditional state concern, . . . the boundaries between the spheres of federal and

state authority would blur . . . .” Lopez, 514 U.S. at 577, 115 S. Ct. at 1638

(Kennedy, J., concurring). Accordingly, along the spectrum of Congress’s

commerce power, Wickard and its progeny, tempered by federalist limitations,

represent the farthest federal regulation can reach into intrastate activity. The

majority ignores this limitation.

II. The Commerce Power and 18 U.S.C. § 247

criminalization of loan-sharking because such practices hindered legitimate national economic

activity).

70

Against this background of federalism and the boundaries it establishes for

congressional activity in areas typically relegated to State law, the core issues in

this case come into focus. As Judge Hill’s dissent notes, 18 U.S.C. § 247

represents a federal statute which purports to proscribe the common law crime of

arson when directed at religious real property by a perpetrator who crossed State

lines to commit the crime. Viewing the commerce power in a federalist context, it

becomes manifest that the power to proscribe church burning in this manner lies

beyond Congress’s grasp.

First, this regulation impermissibly intrudes into areas traditionally reserved

to the States. “States possess primary authority for defining and enforcing the

criminal law.”3 Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S. Ct. 1710, 1720

(1993). That the legislative proscription of common law crimes should be left to

the States was apparent to the Framers before the Constitution was ratified. See

T HE F EDERALIST, No.17 (Alexander Hamilton) (noting that the “administration of

criminal and civil justice” was reserved to the States). This concept was confirmed

3

Importantly, it should be noted that Congress is not barred from enacting criminal laws

pursuant to its express powers. See Lopez, 514 U.S. at 597 n.6, 115 S. Ct. at 1648 n.6 (Thomas,

J., concurring). Utilizing the Necessary and Proper Clause, see U.S. CONST . art. I, § 8, Congress

has prohibited movement through interstate channels by criminal sanction. See, e.g., 18 U.S.C. §

1958 (criminalizing travel to commit murder for hire). When Congress criminalizes localized

conduct traditionally regulated the States, however, federalism concerns are triggered and federal

courts should invalidate the statute if it unduly obliterates the federal-State balance mandated by

our constitutional design. See Lopez, 514 U.S. at 552, 115 S. Ct. at 1626.

71

by the Supreme Court, see Cohens v. Virginia, 19 U.S. 264, 428 (1821) (“It is

clear, that Congress cannot punish felonies generally.”), and it retains vitality

today, see Morrison, 529 U.S. at 618, 120 S. Ct. at 1754 (“[W]e can think of no

better example of the police power, which the Founders denied the National

Government and reposed in the States, than the suppression of violent crime and

vindication of its victims.”). In addition to encroaching into State criminal law, §

247 also relates to real property, another area traditionally reserved to the States.

See Village of Euclid v. Amber Realty Co., 272 U.S. 365, 387-88, 47 S. Ct. 114,

118 (1926). By purporting to outlaw the act of burning a church, Congress has

federalized a common law crime against property. See California v. Minjares, 443

U.S. 916, 927, 100 S. Ct. 9, 15 (1979) (Rehnquist, J., dissenting) (noting that

“crimes against person and property—the traditional common-law crimes—have

largely remained the preserve of the State.”). Truly, church arson is contemptible

behavior, and Ballinger’s conduct merits harsh condemnation. His acts, however,

devastated the worship spaces of local church communities; and by destroying

local, fixed real property, the affects of his crimes are most closely felt by local

citizens. Accordingly, the proper channel for expressing local outrage and

exacting justice is the State criminal law 4 enacted by the representatives of the

4

State criminal statutes would have outlawed Ballinger’s conduct in each of the States in

which he committed church arson. See IND . CODE ANN . § 35-43-1-1; KY . REV . STAT . ANN . §

72

affected local citizens.5 Because “Congress may not in the exercise of federal

power exert authority wholly reserved to the States,” Linder v. United States, 268

U.S. 5, 19, 45 S. Ct. 446, 449 (1925) (citation omitted), § 247 is an

unconstitutional attempt by Congress to reach beyond its commerce power. See

Hammer, 247 U.S. at 273, 38 S. Ct. at 532 (finding unconstitutional a federal

statute proscribing the trafficking of goods made with child labor because it

infringed on State police power); Keller v. United States, 213 U.S. 138, 148, 29 S.

Ct. 470, 473 (1909) (invalidating a federal statute criminalizing the importation of

an alien for purposes of prostitution because “there is in the Constitution no grant

to Congress of the police power”); see also Jones v. United States, 529 U.S. 848,

858, 120 S. Ct. 1904, 1912 (2000) (reading 18 U.S.C. § 844(i) narrowly to avoid

513.030; TENN . CODE ANN . § 39-14-301(b)(2)(A) (specifically proscribing “[a]rson of a place of

worship”); O.C.G.A. § 16-7-61.

5

In this way, the majority’s insistence that the statute constitutionally prevents channels

of interstate commerce from being used to accomplish injurious or harmful ends is misplaced.

While Ballinger used interstate highways to travel to the States in which he burned churches, his

crimes affected fixed real property and local citizens. Accordingly, the channels of interstate

commerce were rendered no less conducive to the facilitation of commerce simply because

Ballinger used them prior to the commission of his crimes. If Congress’s commerce power were

allowed to stretch so far, Congress could proscribe common law murder, an act which also has

localized affects and sparks local outrage, if the perpetrator used a highway to arrive at the scene

of the crime. As the Supreme Court has noted, Congress lacks the power to proscribe common

law murder. See Cohens v. Virginia, 19 U.S. at 426 (stating that Congress has “no general right”

to punish common law crimes like “murder committed within any of the States”). Accordingly,

by analogy, Congress may not proscribe arson in § 247 under the guise of protecting a channel of

interstate commerce when arson has localized affects and in no way impairs the conduct of

commercial intercourse.

73

the constitutional issue of transforming all arson subject to state regulation into

federal felonies).

Second, assuming arguendo that § 247 is in fact placed closer to the realm of

permissible federal regulation of intrastate conduct recognized by Wickard and its

progeny because it contains the jurisdictional qualifier “in or affects commerce,”6

its lack of the requisite nexus to things economic shows that § 247 is beyond even

the furthest reach of Congress’s commerce power. In Lopez, the Court found that

a federal statute regulating firearm possession in schools lacked any nexus to

economic activity. See Lopez, 514 U.S. at 551, 115 S. Ct. at 1626. Similarly, only

by the employment of several inferential conclusions can one connect the

proscription in 18 U.S.C. § 247 to economic activity. See id. at 567 (refusing to

“pile inference upon inference” to sustain a federal statute when its provisions

regulated noneconomic activity). Indeed, the majority’s expansive interpretation

of Wickard’s sanction of federal regulation of intrastate commerce “risks making a

whole catalog of ordinary state crimes a concurrent violation of a single

6

As Judge Hill’s dissent notes, the majority relies heavily upon this jurisdictional

qualifier to uphold the constitutionality of § 247. While the Lopez Court faulted the federal

statute in that case for its lack of a jurisdictional limitation, see Lopez, 514 U.S. at 561, 115 S.

Ct. at 1631, it did not indicate that the presence of such a limitation would have by itself saved

the statute from invalidation. Moreover, the Lopez Court’s first and primary objection to the

statute was that it was a criminal statute that lacked the requisite nexus to economic activity. See

id. at 561. Accordingly, I attach more weight to what § 247 penalizes than to its inclusion of a

jurisdictional qualifier.

74

congressional statute . . . .” Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263, 287, 113 S. Ct. 753, 768 (1993) (Kennedy, J., concurring). The commerce

power has “outer limits,” Lopez, 514 U.S. at 557, 115 S. Ct. at 1628, and § 247, as

a regulation of noneconomic criminal activity, falls outside of those limits.

III. Conclusion

While the burning of a church, “is offensive to the moral sense, . . . that fact

must not close the eye to the question whether the power to punish therefor is

delegated to Congress or is reserved to the State.” Keller, 213 U.S. at 144, 29 S.

Ct. at 471. In construing the Commerce Clause, we are charged with upholding the

Constitution, implicit in which is a federalist design. Here, by failing to appreciate

the significance of federalism, the majority has misconstrued the limits of the

Commerce Clause and allowed a federal statute to regulate intrastate noneconomic

conduct in an area of law traditionally protected from federal intrusion. Thus, the

majority has burned yet another bridge to our federalist foundations. Because I

believe that this incursion into State police powers is not sanctioned by the

Constitution, I respectfully dissent.

75

HILL, Circuit Judge, dissenting, in which BIRCH, Circuit Judge, joins:

Under the authority of the Commerce Clause, Congress may regulate the

channels and instrumentalities of interstate commerce, as well as certain activities

affecting commerce. United States v. Lopez, 514 U.S. 549, 558-59 (1995). The

instrumentalities of interstate commerce are those “persons or things” that travel in

interstate commerce. Id. The channels of interstate commerce include all modes

of interstate or foreign movement of commerce. Id. Thus, the instrumentalities

and channels of interstate commerce encompass the concept of movement of

commerce across state lines, and there has never been any serious question about

Congress’ authority to regulate and protect them. Id.

Congress authority to regulate intrastate activities was not always

recognized by the Supreme Court. United States v. E.C. Knight Co., 156 U.S. 1, 12

(1895) (“Commerce succeeds to manufacture and is not part of it”). Later, the

Court recognized the necessity to protect interstate commerce from the burdens

and obstructions that might be imposed by intrastate activities that have a “close

and substantial relation” to it. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

(1937). Under such circumstances, the Court held, the regulation of intrastate

activities that “affect” interstate commerce is within Congress’ commerce power.

Id. at 37. Even purely local activities, such as the wheat grown for personal

76

consumption in Wickard v. Filburn, 317 U.S. 111 (1942), although not in interstate

commerce, may be regulated if the absence of regulation would undercut a larger

regulatory scheme affecting interstate commerce. Lopez, 514 U.S. at 561.

The effect on interstate commerce of such an intrastate activity, however,

must be substantial in order for the commerce power to reach it. Id. See also

United States v. Robertson, 514 U.S. 669, 671 (1995) (“[t]he ‘affecting commerce’

test . . . define[s] the extent of Congress’s power over purely intra state

commercial activities that nonetheless have substantial inter state effects”)

(emphasis in original)). Thus, Congress’ power to regulate intrastate activities is

more limited than is its power to regulate the instrumentalities and channels of

interstate commerce. Whereas Congress may regulate any instrumentality or

channel of interstate commerce, the Constitution permits Congress to regulate only

those intrastate activities that have a substantial effect on interstate commerce.

Furthermore, such regulation of intrastate activities has always been limited

to economic activities. In United States v. Morrison, 529 U.S. 598, 613 (2000), the

Court observed:

Thus far in our Nation’s history our cases have upheld Commerce

Clause regulation of intrastate activity only where that activity is

economic in nature. . . . A review of Commerce Clause case law

demonstrates that in those cases where we have sustained federal

regulation of intrastate activity based upon the activity’s substantial

effects on interstate commerce, the activity in question has been some

77

sort of economic endeavor.

(emphasis added) (citing Lopez, 519 U.S. at 559-60). Thus, Congress’ power to

regulate intrastate activities has always been limited to economic activities that

have a substantial effect on interstate commerce.

To hold otherwise, the Court has observed, would “convert congressional

authority under the Commerce Clause to a general police power of the sort retained

by the States.” Lopez, 514 U.S. at 567. This the Constitution does not permit. The

Court has long recognized that:

The Constitution requires a distinction between what is truly national

and what is truly local. In recognizing this fact we preserve one of the

few principles that has been consistent since the [Commerce] Clause

was adopted. The regulation and punishment of intrastate violence

that is not directed at the instrumentalities, channels, or goods

involved in interstate commerce has always been the province of the

States. Indeed, we can think of no better example of the police power,

which the Founders denied the National government and reposed in

the States, than the suppression of violent crime and vindication of its

victims.

Morrison, 529 U.S. at 617 (internal citations and quotations omitted). The

Constitution withholds from Congress a general police power, and the Court has

always “rejected readings of the Commerce Clause and the scope of federal power

that would permit Congress to exercise [one].” Lopez, 514 U.S. at 596-97

(Thomas, J., concurring).

Congress has, nonetheless, frequently sought to exercise such a general

78

police power. Lacking authority to punish the crime itself, Congress used its

power to keep the channels and the instrumentalities of interstate commerce safe to

prohibit travel in interstate commerce to commit the crime.1 But, in these statutes,

the travel is the offense, not the common-law crime itself.

Section 247, however, is typical of a number of more recent statutes that

seek to use the commerce power “to cast [a] remedy over a wider, and more purely

intrastate, body of violent crime.” Morrison at 613 (emphasis added). These

statutes prohibit the activity of the violent crime itself, making it an offense against

the United States to carry a gun in a school zone, commit arson, batter a spouse, or

burn a church. See 18 U.S.C. §§ 922(q)(1)(A), 844, 13981, and 247. The Supreme

Court has uniformly rejected these attempts to transform the commerce power into

a general police power over intrastate crime.

In Lopez, the Court reviewed a congressional prohibition on possession of a

firearm in a school zone. The Court held that because the knowing possession of a

1

There are numerous federal statutes which do, explicitly, criminalize travel in interstate

commerce in order to commit a traditional common-law crime. See, e.g., 18 U.S.C. § 43

(traveling to engage in animal terrorism); 18 U.S.C. § 228 (traveling to avoid paying child

support); 18 U.S.C. § 1073 (flight to avoid prosecution); 19 U.S.C. § 1074 (flight to avoid

prosecution for destroying property); 18 U.S.C. § 1231 (interstate travel to engage in

strikebreaking); 18 U.S.C. § 1958 (traveling to engage in murder for hire); 18 U.S.C. § 2101

(traveling to cause a riot); 18 U.S.C. § 2118 (traveling to engage in robbery involving controlled

substances); 18 U.S.C. § 2261 (traveling to commit interstate domestic violence); 18 U.S.C. §

2261A (traveling to commit interstate stalking); 18 U.S.C. § 2262 (traveling to violate domestic

protective order); 18 U.S.C. § 2423 (interstate travel to provide minors for sex). These statutes

regulate crime by focusing on the criminal’s movement in the channels of interstate commerce.

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firearm in a school zone does not substantially affect interstate commerce, the

Congress exceeded its authority under the Commerce Clause in making it a federal

crime. Id. at 551.

Similarly, in Morrison, the Court examined Congress’ attempt to provide a

federal remedy for domestic violence. The Court first noted that domestic violence

is not an economic activity. 529 U.S. at 610. Stating that “a fair reading of Lopez

shows that the non-economic, criminal nature of the conduct at issue was central to

our decision [that the statute was unconstitutional] in that case,” the Court held that

Congress’ attempt to regulate the non-economic, purely local crime of domestic

violence exceeded its authority under the Commerce Clause. Id.2

In United States v. Jones, 529 U.S. 848 (2000), the Court was called upon to

interpret the federal omnibus arson statute, 18 U.S.C. § 844, which extends federal

jurisdiction over the burning of any real property “used in interstate or foreign

commerce or in any activity affecting interstate or foreign commerce.” The

government, seeking to prosecute the arson of an owner-occupied, private

residence, argued that Congress’ use of the words “affecting” interstate commerce

2

The Court approved sub silentio a different provision of the Violence Against Women

Act when it noted that Section 40221(a) of the Act, which prohibits travel to commit spousal

abuse, has been uniformly upheld by the Courts of Appeals as an appropriate exercise of

Congress’ Commerce Clause authority to protect the use of the channels of interstate commerce.

529 U.S. at 613 n.5.

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signaled Congress’ intent to exercise its full authority under the Commerce Clause.

The Court, however, rejected the notion that the mere recitation of such words

rendered the statute immune from judicial review, and proceeded to examine the

quality of the connections between the residence and interstate commerce – the

receipt of natural gas, a mortgage and an insurance policy from out-of-state. The

Court rejected these connections as too de minimis, holding that § 844 “does not

reach an owner-occupied residence that is not used for any commercial purpose.”

Id. at 857. The Court concluded that:

“[g]iven the concerns brought to the fore in Lopez, it is appropriate to

avoid the constitutional question that would arise were we to read §

844(i) to render the ‘traditionally local criminal conduct’ in which

petitioner Jones engaged ‘a matter for federal enforcement.’” . . .

Section 844 is not soundly read to make virtually every arson in the

country a federal offense.

Id. at 858.3

Section 247 also seeks to regulate a common-law state crime – church

burning. Therefore, I believe our inquiry into Congress’ attempt to regulate it

should proceed exactly as did the Supreme Court’s in Lopez, Morrison, and Jones.

We should examine the intrastate, non-economic activity of church burning to

determine whether that activity may be regulated because it substantially affects

3

In construing the statute not to reach the arson of a purely private residence, the court

avoided Jones’ constitutional claim that criminalization of such an arson is beyond the

commerce power of Congress. 529 U.S. at 852.

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interstate commerce.4

The en banc court’s analysis of § 247, however, does not proceed in this

way. Its analysis focuses not on the authority of Congress to regulate the intrastate

activity of church burning, but rather on the meaning of the jurisdictional hook

requiring that the offense be “in or affect” interstate commerce. The majority

asserts that by criminalizing the church arson that is “in” interstate commerce,

Congress intended to invoke its “fullest authority” under the Commerce Clause,

including its power to protect the channels and instrumentalities of commerce.

Therefore, the majority concludes, § 247 criminalizes the use of the channels and

instrumentalities of commerce in connection with a church arson. Thus, church

arson is a federal crime if the church burner travels in interstate commerce in order

to burn a church.5

I find nothing to support this interpretation of § 247. The statute defines the

offense as the arson, not travel to commit the arson, and the use of the word “in”

4

Recently a panel of this court approached yet another congressional attempt to federalize

a state crime – intrastate possession of child pornography – in exactly this way, holding that it

too exceeded Congress’ authority because the connection between the intrastate possession of

pornography and interstate commerce was too attenuated to justify federal jurisdiction. United

States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004).

5

Since the majority clearly requires such travel or the use of the instrumentalities for

federal jurisdiction to attach, the statute will not apply to the purely local arsonist who burns the

church down the street, as Congress clearly intended by its 1996 amendment deleting the travel

requirement.

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does not change that. The statute is Congress’ attempt to punish the intrastate

activity of church burning, not the use of the interstate highway to reach the

church.

Nor can the recitation of “in or affecting” create federal jurisdiction where

none is constitutionally permitted. Merely because Congress chooses to prohibit

the church arson that is “in” interstate commerce does not mean that there is such a

crime.6 Whether church burning substantially “affects” interstate commerce is a

highly problematic issue the majority does not even reach.7

I do agree, however, with the en banc court’s conclusion that Congress

intended to invoke its full power under the Commerce Clause in prohibiting church

arson. In attempting to regulate a purely local activity, such as Wickard’s wheat or

church arson, Congress reaches the outer limits of its commerce power and invokes

its full authority not because it may, but because it must. “In or affecting,”

however, is not a shibboleth that, having been correctly pronounced, opens the

door to federal prosecution. As Lopez, Morrison, and Jones have made clear, no

jurisdictional hook, nor any mantric invocation by Congress of its “fullest

6

Similarly, “[s]imply because Congress may conclude that a particular activity

substantially affects interstate commerce does not necessarily make it so.” Lopez, 514 U.S. at

557 n. 2.

7

In the vacated opinion in this case, the panel held that Ballinger’s crimes did not

substantially affect interstate commerce. 312 F.3d 1264 (11th Cir. 2002).

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authority under the Commerce Clause” can establish federal jurisdiction over an

intrastate activity that judicial review determines does not have the constitutionally

required substantial effect on interstate commerce.8

Thus, I do not agree with the conclusion of the en banc court that § 247's

jurisdictional language transforms it from an attempt by Congress to push its

commerce power to the limit by punishing the purely local and non-economic

activity of church burning into an innocuous regulation of the channels or

instrumentalities of interstate commerce by prohibiting the travel to burn the

church. By collapsing the three Lopez categories of permissible regulation of

commerce into one, all-purpose category that permits regulation of even purely

local non-economic activities – such as violent crime – if someone or something

associated with the activity moves in the channels or utilizes the instrumentalities

of interstate commerce prior to the activity, the en banc court obliterates the

Supreme Court’s careful distinction between Congress’ plenary power over the

channels and instrumentalities of commerce, and Congress’ much more limited

power over intrastate economic activities, which may be regulated only if the local

activity itself has a substantial effect on interstate commerce.

8

The Court observed in Morrison, in response to the dissent, that “[u]nder our written

Constitution, however, the limitation of congressional authority is not solely a matter of

legislative grace.” 529 U.S. at 616.

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Furthermore, interpreting “in or affects” to permit Congress to make the

local non-economic activity of church burning a federal crime merely because the

arsonist crosses state lines to commit the crime, permits too much. I cannot think

of any local activity that Congress could not regulate, nor any crime that Congress

could not federalize under such an expansive interpretation of the commerce

power. Cf. Morrison, 529 U.S. at 615 (“Indeed, if Congress may regulate gender-

motivated violence, it would be able to regulate murder or any other type of

violence since gender-motivated violence is a subset of all violent crime, is certain

to have lesser economic impacts than the larger class of which it is a part”).9 Such

an expansive interpretation would render null and void the Court’s decisions in

Lopez, Morrison, and Jones.

The underlying principles of federalism require that the reach of the

commerce power over intrastate activities be limited to those economic activities

that are in or, if purely local, substantially affect interstate commerce. Without

enforcing the limits imposed by the Constitution, according to the Court in

Morrison, “the concern that we expressed in Lopez that Congress might use the

Commerce Clause to completely obliterate the Constitution’s distinction between

9

Of course, the Congress may prohibit travel to commit the offense of church burning as

it has done in the other statutes mentioned above in n. 1. Then, however, the offense prohibited

is the travel.

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national and local authority seems well founded.” Id. at 615.

The view that the distinction between the national and the truly local must be

maintained is not a unanimous one in either the Congress or the Court.10 The

Morrison majority remarked that the dissent’s “remarkable theory [is] that the

commerce power is without judicially enforceable boundaries.” 529 U.S. at 608 n.

3. This theory, although rejected thus far in our constitutional history, remains a

seductive one when Congress, bent on doing good, does violence to the principles

of federalism that have supported our republic for over two hundred years.

Ballinger is an evil doer and the evil that he has done is reprehensible.

Because he has done these evil things, he is locked up and he should remain so.

But to keep him there, I fear that today we step over the historical line so carefully

drawn by the Court.

10

Or, for that matter, in the Executive. President Theodore Roosevelt once remarked that

“little permanent good can be done by any party which . . . fails to regard the State, like the

county or the municipality, as merely a convenient unit for local self-government.” Theodore

Roosevelt, An Autobiography 351 (Charles Scribner’s Sons 1924) (1913).

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