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Monday, April 8, 2013

Congressional Authority to Enact Criminal Law: An Examination of Selected Recent Cases

Charles Doyle
Senior Specialist in American Public Law

The powers of Congress begin and end with the Constitution. The Constitution vests Congress with explicit authority to enact criminal laws relating to counterfeiting, piracy, crimes on the high seas, offenses against the law of nations, and treason. It grants Congress other broad powers, such as the power to regulate interstate commerce. The Constitution’s Necessary and Proper Clause allows Congress to enact criminal laws when reasonably related to the regulation of commerce or to one of the other constitutionally enumerated powers. The Constitution also imposes limits on the powers of Congress, however. It places those limits in the terms it uses in its grants of authority, in explicit prohibitions, and in the Tenth Amendment reminder of the restrictions implicit in the federal union. Recently, the Supreme Court and the lower federal appellate courts have supplied several examples of the scope and limits of congressional authority.

In the case of the Commerce Clause, seven Justices of the Supreme Court endorsed separate opinions in National Federation explaining that the power to regulate interstate commerce does not include the power to require participation in commerce. The Fifth Circuit held in Kebodeaux that the Commerce Clause does not embody the power to outlaw purely intrastate movement with only an attenuated nexus to commercial activity. As for foreign commerce, the circuits disagree on whether Congress’s regulatory authority is subject to the same constraints that apply to its powers over domestic commerce. The Ninth Circuit (Clark) believes it is not. The Third Circuit (Pendleton) disagrees. (The Violence Against Women Reauthorization Act, P.L. 113-4 (S. 47), eliminates the need to prove a foreign commerce element in the law that gave rise to the circuit split.)

In the realm of the Necessary and Proper Clause, the Eleventh Circuit in Belfast observed that Congress may pass criminal legislation in order to implement a treaty obligation, and the Third Circuit in Bond held that it may do so without regard to federalism concerns. Moreover, the Ninth Circuit Court of Appeals concluded in Elk Shoulder that Congress may outlaw the unregistered movement within a state of a federally convicted sex offender who is on supervised release. The Fifth Circuit held in Kebodeaux, however, that the Clause does not permit enactment of a statute that outlaws such movement after the offender has been fully discharged. Although they did not join in a single opinion, seven Justices in National Federation concluded that Congress’s power under the Spending Clause may not be used to compel the states to accept expansion of a federal regulatory regime or to face draconian economic consequences. The case did not involve criminal penalties, but a limit on Congress’s Spending Clause power is a limit on its authority to enact implementing necessary and proper criminal legislation.

Article I, Section 8, clause 10 grants Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Federal appellate courts have looked to customary international law for explanations of the power over offenses against the law of nations (Bellaizac-Hurtado) and piracy (Dire). The High Seas cases (Saac and Ibarguen-Mosquera) continue to acknowledge congressional authority to outlaw drug trafficking in international waters subject only to an elusive due process limitation. The Constitution’s Military Clauses permit Congress to criminalize overseas assaults by Defense Department foreign contractors (Brehm), but do not permit it to punish an individual’s conduct based solely on his status as a former member of the Armed Forces even when supplemented by the Necessary and Proper Clause (Kebodeaux).

Date of Report: March 27, 2013
Number of Pages: 24
Order Number: R43023
Price: $29.95

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