United States v. Frank Lafayette Bird

DeMOSS, Circuit Judge,

concurring in part and dissenting in part:

I concur in subparts 1(B), 1(C), and 1(D) and in parts II and III of the majority opinion. I also concur in section 1(A)(1) (“Channels of Interstate Commerce”) and section 1(A)(2) (“Persons or Things in Interstate Commerce”) of the majority opinion, which conclude that the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248 et seq. (hereinafter “FACE”), was not validly enacted under either of the first two categories of Commerce Clause analysis set forth by the Supreme Court in United States v. Lopez, 514 U.S. 549 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995). However, I cannot concur in the analysis and holding in section 1(A)(3) (“Interstate Activity that ‘Substantially Affects’ Interstate Activity”) of the majority opinion, which concludes that the enactment of FACE falls within part three of the Lopez analysis because Congress found a “national commercial market in abortion-related services,” and that Congress was justified in determining “that the regulation of intrastate activity — the activity prohibited by the Act — was necessary to ensure the availability (both in terms of access and price) of abortion services in the national commercial market.” Ante at 678. Because I disagree with the fundamental premises of these holdings, I write now to explain my reasons.

I.

Rather than applying the clear and explicit criteria which the Supreme Court set forth in Lopez , the majority considers the constitutionality of FACE under the third Lopez category by constructing an analysis built upon three essential premises:

1. “After Wickard — and its reaffir-mance in Lopez — there can be no question that Congress is able to regulate noncommercial, intrastate activity that substantially affects interstate commerce, an admittedly broad power not without danger to the federalism that is the most fundamental postulate of our constitutional order.” Ante at 676 (footnotes omitted).

2. “[A] requirement for ... a limiting principle in the absence of a jurisdictional element, although not expressly adopted by the Supreme Court, is the only legitimate reading of the Wickard-Perez line of cases.” Ante at 677.

3. “[0]ur inquiry must determine not simply whether § 248(a)(1) proscribes intrastate activity that has (or might have) a substantial effect on interstate commerce, but rather whether there is a national commercial market in abortion-related services such that the regulated conduct — considered in light of the size and scope of the benchmark market — substantially affects interstate commerce.” Ante at 677.

I disagree with each of these premises, which create fundamental and logical deficiencies in the majority’s analysis.

There is no question that the conduct proscribed by FACE is “intrastate and noncommercial conduct.” Injuring or threatening to injure persons who seek to receive or deliver abortion services is, by its very nature, an intrastate activity; such conduct inherently involves face-to-face and person-to-person contact which must occur in the same place at the same time. Likewise, such conduct does not involve the transfer of money or any other consideration between the perpetrator and the victim, and there is no commercial motive prompting the perpetrator to engage in such conduct.

I think the first premise of the majority opinion as set forth above is inaccurate in two respects. First, I do not read Lopez as an affirmance of Wickard. Rather, I see Lopez as a reinterpretation of Wickard which focuses on what the Court now says is the *686 essential ingredient for Congress to be able to regulate intrastate noneconomic conduct which substantially affects interstate commerce. Particularly, the proscribed intrastate, noncommercial activity must be “an essential part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at 561 , 115 S.Ct. at 1631 . The majority recognizes this essential ingredient in the second paragraph of its discussion of “intrastate activity that substantially affects interstate activity,” see ante at 675, but then blithely ignores the fact, that FACE is not a part of any larger regulatory scheme, and moves on to discuss the need for a “limiting principle,” as indicated by the majority’s second premise above.

The only relevant “limiting principle” is the one dictated by the Supreme Court’s Lopez decision. The Lopez Court adopted a new reading of the Wickard-Perez line of cases by specifying that, for Congress to be able to regulate intrastate and noncommercial conduct under the Interstate Commerce Clause, such conduct must be “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Id. FACE does not meet these criteria. The legislation is not an essential part of a larger regulatory scheme which would be undercut if Congress does not proscribe with criminal sanctions the intrastate and noncommercial conduct which FACE addresses.

Consequently, the majority errs in engaging in an examination of “the congressional findings, the committee reports, and the relevant testimony,” ante at 677, to determine whether Congress found national commercial market in abortion-related services, which would serve as the “limiting factor” that would minimize the danger to federalism. There is absolutely nothing in the Supreme Court’s Lopez decision that speaks to the majority’s concept of a “national market” as being a limiting factor. As the majority opinion indicates, this “national market” limiting concept is a leftover argument from our Circuit’s panel opinion in Lopez. See United States v. Lopez, 2 F.3d 1342, 1367 (5th Cir. 1993), aff'd on other grounds, 514 U.S. 549 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995). In my view, to the extent that the “national market” concept appears in our Circuit’s Lopez opinion, it is dicta. Regardless, when the Supreme Court decided Lopez, it provided a new framework for appraising legislation under the Commerce Clause, and it did not include the “national market” consideration in its own analysis, which necessarily supersedes the earlier analysis from this Circuit. See, e.g., United States v. Pettigrew, 77 F.3d 1500 , 1511 n. 1 (5th Cir.1996) (“While ... one panel of this Court is generally powerless to overrule the previous decision of another panel absent rehearing by the full Court sitting en bane, an exception to this rule arises when there has been an intervening decision by the United States Supreme Court overriding the earlier decision.”).

Furthermore, neither the Fifth Circuit’s Lopez opinion, nor the majority opinion in this case, establish any criteria to define what is referred to as a “national market.” The words “national market” invoke the image of something like the New York Stock Exchange, the Chicago Board of Trade, or the Commodities and Futures Exchange. These are national markets which operate through brokers and dealers to bring buyers and sellers together and produce an established range of bid and ask prices as reflected by current transactions in the item being traded. It seems to me that at the very least, a “national market” requires a product or commodity which has a high degree of fungibility. For example, a share of stock in U.S. Steel can be sold on a national market by a seller in California to a buyer in New York in reliance upon the fact that the share of stock represents the same thing in both places. Similarly, a bushel of wheat grown in Nebraska will be the same as a bushel of wheat grown in Kansas once the farmers who grew each bushel have moved them into the national market. There is nothing in the Congressional Record that establishes that one abortion procedure is just like every other abortion procedure. To the contrary, an abortion is a unique, personal, and highly individualized procedure.

*687 In addition to fimgibility, a primary function of a “national market” is to determine a unit price for each commodity based upon the most recent sales of that commodity, without distinction as to whether that commodity was grown or manufactured in Texas or was grown or manufactured in Michigan. The majority says that “Wickard itself offered, as a limiting principal, the national wheat market” and “Perez cited the national market for commercial credit.” See ante at 677. But there is a serious distinction between those types of national markets and a “national market in abortion-related services.” An abortion is a medieal/surgical procedure performed in a hospital or clinic by a provider on a pregnant woman. There is no product or commodity which results from this procedure. When a woman arranges to have an abortion performed, the subject of the arrangement is a personal service that is to be provided. When the service is rendered and the fee is paid, the abortion has no ongoing value or marketability.

I recognize, of course, that the majority has concluded that Congress, found a national market for abortion services. See ante at 678-679. I question the factual accuracy of this conclusion. The only findings which the full Congress made relating to FACE are those identified in the Conference Committee Report. See ante at 671 n.2. Because the Conference Committee made these express findings, we are bound to view these findings as the only findings which Congress made. Therefore, in determining whether Congress found a national market for abortion services, we can look only to the Conference Committee Report and the findings set forth therein.

The words “national market for abortion-related services” do not appear anywhere in these five Conference Committee findings. The only one of these five findings which even mentions the term “interstate commerce” is the third one, which states simply that anti-abortion violence “burdens interstate commerce by forcing patients to travel from states where their access to reproductive health services is obstructed to other states.” H.R. Conf. Rep. No. 103-488, at 7 (1994), reprinted in 1994 U.S.C.C.A.N. 724, 724. The mere fact that some individuals choose to or are forced to travel interstate to receive abortions does not establish that there is a “national market” for abortions. Nothing in the Conference Committee’s statement of findings speaks to whether abortion services are fungible, and nothing in this finding speaks to the question of whether the price or availability of abortion services in New York City is the same as that in Los Angeles or in Des Moines, Iowa.

For the foregoing reasons, I do not agree that the presence of a national market is the relevant inquiry under part three of the Lopez analysis. Furthermore, assuming that the presence of a national market is determinative, I am unable to concur in the majority’s conclusion that Congress found a “national market for abortion-related services,” which is the keystone of the majority’s determination that FACE is a permissible exercise of Congress’s power under the Commerce Clause as described in part three of Lopez.

II.

In my view, FACE cannot survive Lopez analysis because the statute is distinguishable from the permissible regulations of conduct that substantially affects interstate commerce in four important aspects. First, FACE is a criminal statute that by its terms has nothing to do with commerce. See Lopez, 514 U.S. at 560-61 , 115 S.Ct. at 1630 . Second, FACE is not an essential part of any larger regulation of economic activity, in which that larger regulatory scheme could be undercut unless the intrastate activity were regulated. See id. at 561 , 115 S.Ct. at 1631 . Third, FACE contains no jurisdictional element which would ensure through case-by-case inquiry that the conduct prohibited therein affects interstate commerce. See id. Finally, FACE exercises general police powers by creating criminal sanctions in an area where the states have historically been recognized to be sovereign. See id. at 564-65 , 115 S.Ct. at 1631-33 . These four departures from the Lopez standard are fatal to the constitutionality of FACE.

*688

A. FACE Is a Criminal Statute That by Its Terms Has Nothing to Do with Commerce.

The statutory text of FACE does not contain the word “commerce,” nor the phrase “intrastate commerce,” nor the phrase “interstate commerce.” The conduct prohibited by FACE — the use of force to interfere with another person’s obtaining or providing reproductive health services — does not inherently involve conduct which is a part of any commercial activity. In fact, the prohibitions of FACE apply to a nonprofit, charitable facility that provides abortions for free just as they apply to a clinic that charges a fee for providing abortion services.

Also, the prohibited conduct does not have any commercial purpose of its own. The commercial nature of the regulated activity is an important consideration in the substantially-affects prong of the Lopez analysis. See, e.g., Lopez, 514 U.S. at 560 , 115 S.Ct. at 1630 (“Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” (emphasis supplied)). The activity regulated by FACE, the use of force, threats, or intimidation to injure, intimidate, or interfere with the persons identified by the statute, is behavior that is not commercial by nature.

Despite the majority’s protest to the contrary, see ante at 678 n.13, there is no difference between the prohibitions in FACE and a statute that might federalize murder on the grounds that killing people substantially affects interstate commerce. The majority’s suggested distinction, that the FACE prohibitions have “a relatively narrow common goal or motivation and are all directed at a relatively narrow common set of victims, and farther ... many of the proscribed offenses involve common perpetrators traveling in interstate commerce and victims engaged in interstate commerce,” ante at 678 n.13, is untenable. Our panel is in agreement that FACE does not fall within part two of the Lopez analysis, the prong for persons or things in interstate commerce. Yet the majority’s purported distinction relies on the presumed involvement of “perpetrators engaged” and “victims engaged” in interstate commerce. As the majority itself notes, “[cjongressional regulation or protection of persons or things that move in interstate commerce must ensure that, in fact, a particular ‘threat’ — whether posed by an interstate or intrastate activity — actually threatens persons or things with a plain and clear nexus to interstate commerce.” Ante at 674. FACE contains no such “jurisdictional nexus.”

The approval of legislation like FACE opens the door to general federalization of felonies. Lopez reaffirms that this sort of legislation is not envisioned by the Commerce Clause. The criminalization of noncommercial conduct by FACE is one important distinction between FACE and the category of legislation described in part three of Lopez.

B. FACE Is Not an Essential Part of a Larger Regulation of Economic Activity, in Which the Regulatory Scheme Could Be Undercut Unless the Intrastate Activities Were Regulated.

There is no national regulatory scheme regarding the provision of abortion services. The federal government does not license abortion clinics, does not approve the training of abortion providers, and does not regulate the delivery of abortion services to ensure that any minimum health standards are met. The federal government has not created any administrative agency nor designated any department of the federal government to regulate the abortion industry in order to stabilize the supply of abortion services or encourage the demand for such services.

In short, there is no general federal regulatory scheme relating to the abortion industry. Congress has made no finding to the contrary. FACE cannot, therefore, be an essential part of any general federal regulatory scheme, because none exists. It thus goes without saying that the prohibited conduct in FACE does not, as Lopez requires, undercut the enforcement of any general regulatory scheme.

The majority recognizes the importance of this factor when it quotes the operative language at the very beginning of its section 1(3), discussing the substantially-affects cate *689 gory of Commerce Clause power. Ante at 675 (quoting Lopez, 514 U.S. at 561 , 115 S.Ct. at 1631 ). But the majority then proceeds to try to rationalize its way around this specific language of Lopez by citing three earlier Supreme Court opinions for the proposition that Congress can regulate noncommercial local activity which “in the aggregate” substantially affects interstate commerce: United States v. Darby, 312 U.S. 100 , 61 S.Ct. 451 , 85 L.Ed. 609 (1941); Wickard v. Fitbum, 317 U.S. Ill, 63 S.Ct. 82 , 87 L.Ed. 122 (1942); and Perez v. United States, 402 U.S. 146 , 91 S.Ct. 1357 , 28 L.Ed.2d 686 (1971).

These three cases demonstrate the correctness of the Lopez premise rather than an exception to it. In each of these eases there was a comprehensive national regulatory scheme, and the criminalized conduct was clearly defined as part of that regulatory scheme. In Darby , the Supreme Court dealt with the wage and hour laws of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. The defendant was an employer who failed to pay the statutory minimum wages but went ahead and shipped his product in interstate commerce. In Wickard , the Agricultural Adjustment Act of 1938 (“AAA”) was at issue. Filburn was a farmer whose farm fell under the purview of the AAA and who had received an acreage allotment under the AAA. The AAA expressly limited the ability of farmers to raise a wheat crop for their own consumption and the Wickard case validated that limitation. Finally, Perez arose in the context of the Consumer Credit Protection Act, 18 U.S.C. § 891 , with the defendant being a loan shark who engaged in extortionate credit transactions as therein defined. These cases deal directly with conduct that might frustrate the efforts of a federal regulatory system.

While I agree with the majority that Lopez’ s reaffirmation of the Wickard-Perez cases can be read as meaning that Congress can “regulate noncommercial, intrastate activity that substantially affects interstate commerce,” ante at 676, I see nothing in Lopez that permits the elimination of the further requirement that such “noncommercial, intrastate activity” must be “an essential part of a larger regulation of economic activity.” Lopez, 514 U.S. at 561 , 115 S.Ct. at 1631 . FACE stands alone as a criminal statute, unconnected to any larger federal regulatory scheme. The statute purports to regulate intrastate noncommercial activities and thus fails, for the reasons noted above, to satisfy this requirement of Lopez.

C. FACE Contains No Jurisdictional Element Which Would Ensure, Through Case-by-Case Inquiry, That The Prohibited Conduct Has a Substantial Effect on Interstate Commerce.

It would have been a simple matter for Congress to have included elements in FACE which would have provided a “jurisdictional nexus.” These elements are ones which explicitly tie the prohibited conduct in a criminal statute to interstate commerce. The absence of a jurisdictional nexus was an important factor in the Supreme Court’s disapproval of the Gun-Free School Zones Act in Lopez. See Lopez, 514 U.S. at 561-62 , 115 S.Ct. at 1631 .

The simplicity with which FACE could have been jurisdietionally limited is easily demonstrated. For example, the statute defines the term “facility” as meaning “a hospital, clinic, physician’s office, or other facility that provides reproductive health services, and includes the building or structure in which the facility is located.” 18 U.S.C. § 248 (e)(1). Congress could have qualified the definition by limiting it to facilities that provide reproductive health services “to a person who has traveled in interstate commerce in order to receive such services.” Likewise, in § 248(a) (“Prohibited activities”), Congress could have limited its prohibition to the use of force or physical obstruction to injure, intimidate, or interfere with any person who has traveled in interstate commerce to receive or provide abortion services.

For whatever reason, Congress opted not to include jurisdictional elements. As a consequence, this is yet another factor that distinguishes FACE from the category of legislation permitted as regulation of intrastate activity which substantially affects interstate commerce.

*690

D. FACE Intrudes on Issues Which Are Historically Local Concerns and Outside the Regulatory Power of the Federal Government Under the Interstate Commerce Clause.

The regulation of violent actions by one person against another through criminal laws is the most elemental component of general police power. The prohibited conduct in FACE — the use of force, threats of force, or physical obstruction to intentionally injure, intimidate, or interfere with another person — are well within the classic type of prohibitions which a state exercising its general police power may adopt. In its Lopez decision, the Supreme Court repeatedly indicated that the Congress does not have a general police power and that such power rests exclusively with the states. See Lopez, 514 U.S. at 561 n.3, 115 S.Ct. at 1631 n.3 (“Under our federal system, the '“States possess primary authority for defining and enforcing the criminal law.”’” (quoting Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 1720 , 123 L.Ed.2d 353 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128 , 102 S.Ct. 1558, 1572 , 71 L.Ed.2d 783 (1982)))); id. at 564, 115 S.Ct. at 1632 (“Under the theories that the Government presents ... it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.”); id. at 566 , 115 S.Ct. at 1633 (“The Constitution ... withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.” (citing U.S. Const., art. 1, § 8)); id. at 567, 115 S.Ct. at 1634 (“[T]o uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”).

The Congress was obviously motivated to enact FACE by the desire to protect persons seeking to obtain or perform abortion services. But this area is distinctly within the province of local law. The Lopez Court considered family law to be the quintessential example of such a local concern, see id. at 564, 115 S.Ct. at 1632 , and the action of obtaining an abortion results from what is essentially a family decision. That the regulation of abortion in particular is a local issue is borne out by the history. Before Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), the states were prohibiting and regulating abortions by state statute. In holding these state statutes unconstitutional, the Supreme Court grounded its decisions in the liberty or privacy elements of the First and Fifth Amendments as made applicable to the states by the Fourteenth Amendment. See Roe, 410 U.S. at 152-53 , 93 S.Ct. at 726-27 . Neither in Roe nor in any of its progeny did the Supreme Court ever mention the Commerce Clause (or the dormant commerce clause), nor did the Supreme Court suggest that these state statutes were unconstitutional because of their intrusion on interstate commerce nor upon any “national market” in the delivery of abortion services. Even today, in the wake of Roe and Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992), many states have statutes which regulate the circumstances of access to abortions and the conditions under which abortions may be delivered. The federal government has no such general abortion regulation.

Both the regulation of violent acts among citizens and the regulation of abortion services are areas of distinctively local concern. The prohibitions imposed by FACE bear all of the characteristics of enactments of police power. Lopez explicitly warns against this variety of legislative excess, making this factor yet one more important distinction between FACE and the laws which have been approved as permissible regulations of intrastate conduct that substantially affects interstate commerce.

E. FACE Is Unconstitutional.

Since FACE has the same defects and deficiencies which led the Supreme Court to conclude in Lopez that the Gun-Free School Zones Act was unconstitutional, I would hold that FACE is likewise unconstitutional. It is not clear whether each of these four distinctions, standing alone, would exclude legislation from the third category of Commerce Clause legislation identified in Lopez. As the *691 Lopez Court itself noted, “[t]hese are not precise formulations, and in the nature of things they cannot be.” Lopez, 514 U.S. at 567 , 115 S.Ct. at 1634 . However, the presence of all four of the above-detailed factors in this case leaves no doubt that. FACE is unconstitutional.

III.

Because the majority concludes that the Commerce Clause gave Congress the requisite authority to adopt FACE, they “pretermit the substantially more questionable assertion of congressional authority [under Section Five of the Fourteenth Amendment] to criminalize purely private conduct (not directed at state property or facilities).” Ante at 681-682. Since I would conclude that the Commerce Clause does not permit Congress’s passage of FACE, and since supporting FACE under Section Five of the Fourteenth Amendment was clearly raised in this appeal, I am not at liberty to pretermit the latter question. However, in light of well-established principles which were recently reaffirmed by the Supreme Court’s decision in City of Boerne v. Flores, — U.S. -, 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997), I conclude that Section Five of the Fourteenth Amendment does not empower Congress to enact FACE.

FACE purports to criminalize the conduct of private parties for conduct which is not directed at state property or facilities. Plainly, Section Five of the Fourteenth Amendment does not contemplate the passage of such a law. It provides that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, § 5. The “provisions” which Section Five empowers Congress to enforce are directed at the states. See U.S. Const, amend. XIV, § 1 (“No State shall ... deprive any person of life, liberty, or property, without due process of law____”). As the Supreme Court made clear in City of Boeme, Section Five of the Fourteenth Amendment “did not authorize Congress to pass ‘general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the states may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing.’ ” City of Boerne , — U.S. at-, 117 S.Ct. at 2166 (quoting The Civil Rights Cases, 109 U.S. 3, 13-14 , 3 S.Ct. 18, 22-24 , 27 L.Ed. 835 (1883)). Section Five thus was not intended to confer on the federal government a police power over all matters related to the individual rights contemplated by the Fourteenth Amendment.

After City of Boeme, it is clear that acts passed pursuant to Section Five must be remedial in nature. This is not the case with FACE, which seeks to vindicate Fourteenth Amendment rights through direct legislation affecting individual conduct, rather than by providing a remedy for state violations. Thus, the enactment of FACE cannot be justified as an exercise of the enforcement power under the Fourteenth Amendment.

It is interesting to note that the same Congress which passed FACE also passed the Religious Freedom Restoration Act of 1993, 107 Stat. 1488 (former 42 U.S.C. § 2000bb et seq.) (hereinafter, “RFRA”), the statute at issue in City of Boeme. With each of these laws, Congress was attempting to change through legislation the result of a prior Supreme Court decision: with FACE, that prior decision was Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 , 113 S.Ct. 753 , 122 L.Ed.2d 34 (1993); and with RFRA, it was Employment Division v. Smith, 494 U.S. 872 , 110 S.Ct. 1595 , 108 L.Ed.2d 876 (1990). Just as the Supreme Court in Lopez explained the limits on Commerce Clause powers, so too did it in City of Boeme explain the limitations on the powers bestowed by Section Five of the Fourteenth Amendment. Both Lopez and City of Boeme reflect what I believe to be a significant trend on the part of the Supreme Court in articulating a renewed consciousness of the fundamental principles of our Constitution, that is, that our federal government is a government of limited powers, federalism has a significant place in constitutional analysis, and the separation of powers between the branches of the federal government must be respected.

*692 rv.

For these reasons, I respectfully dissent from the majority’s conclusion that FACE is constitutional.