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Free the Amish Beard-Cutters
Michael Ramsey

…from federal charges, that is.

At Reason, Jacob Sullum reports on the odd case of the Amish beard-cutters: How the Justice Department Transformed an Amish Feud into a Federal Hate Crime

... Samuel Mullet Sr., the leader of an Amish sect in Ohio, and 15 of his followers were convicted of federal crimes in connection with a series of bizarre beard- and hair-cutting attacks on other Amish with whom Mullet was feuding. Why was this a federal case? Because Steven M. Dettelbach, the U.S. attorney for the Northern District of Ohio, argued that Mullet picked his victims "because of" their "actual or perceived religion." Specifically, Mullet had said the attacks (which he denied ordering) were punishment for failing to respect his authority as a bishop, including his excommunication orders against those he deemed insufficiently pious. Federal prosecutors said that religious motivation made the attacks hate crimes.

But what is the Article I, Section 8 enumerated power that allows the national government to regulate what appears to be a local offense?  The commerce clause, of course.  From Sullum’s account:

The government also had to cite an "interstate nexus" to justify federal prosecution. You might think that would be a challenge, since all of these crimes occurred within a single state. But hey, look, Dettelbach says: The "Wahl battery-operated hair clippers" used in the assaults "were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware." The defendants also used "a pair of 8'' horse mane shears which were manufactured in the State of New York and sent via private, interstate postal carrier to [a retailer] in Ohio for resale." They took pictures of their victims with "a Fuji disposable camera from Walmart" that "travelled in and affected interstate commerce in that it was manufactured in Greenwood, South Carolina." They used "an instrumentality of interstate commerce" (i.e., a highway) to reach victims in Trumbull County, Ohio. (They never actually left the state, but they could have.) The indictment also mentions a letter (carried by the U.S. Postal Service!) that was used to lure one of the victims. An embarrassment of interstate nexuses, in more ways than one.

This result seems hard to square with any plausible theory of shared national/local powers, and in particular with the original meaning of the commerce clause.  And it seems inconsistent with the U.S. Supreme Court’s decision in United States v. Morrison, which held a portion of the federal Violence against Women Act unconstitutional on the ground that the Act regulated non-economic activity (assault) lacking a substantial relationship with interstate commerce.  (Morrison addressed a civil remedy rather than a criminal prosecution, but it’s hard to see how that matters).  The short of it is that if the national government can regulate any activity that involves items that at one distant point moved in interstate commerce, then it can regulate effectively everything. 

Two caveats.  (1) It’s possible, in my view, that under some circumstances the national government might reach activity of this sort under Section 5 of the Fourteenth Amendment (which gives Congress power to enforce the prior sections of the Amendment, including the equal protection clause).  If a state is not enforcing its assault laws (or other laws) against a particular group out of prejudice, I would think Section 5 might allow the national government to intervene to assure that equal protection is given to that group, including by providing a federal remedy.  But here, as far as I know there’s no argument that Ohio couldn’t or wouldn’t prosecute the assault.  (2) Whatever one thinks of the 1960s civil rights cases like Katzenbach v. McClung, they are entirely different from the Amish case and have their own limiting principle.  In McClung (the “Ollie’s Barbecue” case), the Court upheld a federal prohibition on private race discrimination by a restaurant (Ollie’s) that had minimal interstate business.  It’s true that one of the arguments made in support of the decision was that Ollie’s Barbecue purchased food in interstate commerce.  But (a) the Court’s better argument was that private race discrimination impeded interstate travel, and anyway (b) Ollie’s, unlike the Amish defendants, was engaged in commercial activity.  The Morrison Court emphasized the latter difference in distinguishing McClung and Morrison, and that distinction seems also appropriate in the Amish case.  This would be a different case if the defendant's actions had economic motivations, but as far as I know they didn't.

I don’t know if procedurally the issue is viable on appeal, but it is cases like this that the Supreme Court should look for, if it is serious about reviving a meaningful limit on the national government’s regulatory power.  It’s hard to imagine that many people care whether beard-cutting is a state or federal crime, so there’s a principle to be reinforced at relatively low cost (unlike in NFIB v. Sebelius, where a meaningful upholding of the principle would have come at great political cost to the Court). 

Notably, I suspect that cases like this are farily common (that is, cases of federal criminalization of local offenses; beard-cutting, we may assume, is rare).  A while back I asked which (if any) fields were one that modern national legislation routinely and obviously exceeded the original limits.  This sort of law seems like a good candidate, and thus a good target for those interested in at least a modest step toward revival of the original design.

And as a further aside, a number of nationalist-oriented academic commentators have developed theories of national/state power that purport to leave room for some exclusive state power while permitting major federal programs such as the health care law upheld in NFIB v. Sebelius.   For example, Neil Siegel and Robert Cooter have argued that national regulation is appropriate as to activities that pose collective action problems having substantial spill-over effects across states (like, they say, the health care law), but not otherwise.  As Professor Siegel insists, "[c]ollective action federalism is a theory of limits on federal power, not just a theory of licenses to legislate."  But I tend to be a little skeptical when such assurances are made in the abstract.  If these theories are to be taken seriously, they need to actually favor state power in some specific non-hypothetical cases – such as, perhaps, this one.  What say you, Professor Siegel?