Are Federal Criminal Sanctions for IP Infringement Unconstitutional? (Part 2)
This post continues the discussion I began in Part 1 of the cases that have involved or related to the Supreme Court’s criminal law jurisprudence.
By the time the 1930s rolled around, Congress confidently criminalized a wide variety of activities, and expansion of the federal criminal law was thus well on its way before the beginning of the New Deal. The Supreme Court did begin taking a more lenient approach toward federal economic regulation beginning in the 1930s than it had previously. In Wickard v. Filburn, the Court famously upheld a regulation that limited a farmer’s ability to grow wheat for home consumption because the aggregate impact of farmers doing so would have a sufficient effect on the interstate market that the Court deemed the law to be constitutional. At that time, however, Congress preferred to enact federal crimes for which “under the facts of the particular case, a nexus was shown between the act and interstate commerce”, hence involving a so-called jurisdictional hook, rather than provisions based on the interstate effect of pooled local activities.
The Court, however, gave a fairly high degree of latitude to Congress when interpreting the connection to commerce, ruling for example in Perez v. United States that Congress could criminalize improper intrastate credit transactions without showing an effect on interstate commerce in every case. The Supreme Court thus did not put up too many obstacles in Congress’s path until the United States v. Lopez case.
In Lopez, the Supreme Court held that the criminalization of possession of a firearm near a school did not substantially affect commerce. While the government tried to show a relationship between violent crime and interstate commerce, the Court remained unconvinced, noting in part the lack of congressional findings on the matter. It appeared in some ways that Lopez represented a break with the Court’s reluctance to interfere with congressional decisions concerning criminal law, but recent cases have shown that the Court continues to grant a high degree of congressional latitude in this area.
One of the most important recent tests of Congress’s power took place in the case of Gonzales v. Raich, which involved the question of whether individuals who were growing medical marijuana for personal use in a manner permitted by California law could constitutionally be held to have violated federal drug laws. The Supreme Court ruled that this criminalization was in fact constitutional and aligned the case with Wickard rather than Lopez. Relying on the reasoning in Perez, the Court held that “[w]hen Congress decides that the total incidence of a practice poses a threat to a national market, it may regulate the entire class.”
Another important case that raised similar issues followed in 2010 in the form of United States v. Comstock, which involved the question whether a federal statute permitting a district court to civilly commit a sexually dangerous prisoner beyond the end of his prison term was constitutional. The Court held that this was constitutional for a number of reasons including the broad powers of Congress under the Necessary and Proper Clause.
The third recent case to have tested congressional power over criminal law is United States v. Kebodeaux, which raised the issue whether a requirement to register regulated by the Sex Offender Registration and Notification Act (SORNA) was constitutional. The Court upheld Congress’s decision to subject an individual to SORNA’s requirements who already had to register under the so-called Wetterling Act, a statute deemed valid under the Military Regulation and Necessary and Proper Clauses.
In the next part of this post, I will tackle some of the problems surrounding current constitutional criminal law doctrine.