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Appeal in Amish Beard-Cutting Prosecution
Michael Ramsey

Michael Rosman and the Center for Individual Rights have filed this brief with the Sixth Circuit on behalf of one of the defendants, Kathryn Miller,  in the Amish Beard-Cutting case.  (My earlier discussion of the case here: Free the Amish Beard-Cutters, with follow-up here and here).  As the previous posts describe, this is a very important federalism case, because the government's theory of the commerce power would appear to allow federal criminal law to reach essentially any activity.  Here is the brief's statement of the federalism issues on appeal:

1. In passing 18 U.S.C. § 249(a)(2), did Congress criminalize any infliction of “bodily injury” motivated by gender, religion, and other prohibited criteria -- provided only that a car or bicycle or any other thing capable of moving someone or something across a state line was used?

2. Does Congress have the authority under the Commerce Clause to regulate any and all uses of an automobile, or anything else capable of moving someone or something across a state line, and to regulate any act, no matter how local, in which an automobile (or such other device) is used?

3. Does Congress have the authority under the Commerce Clause to regulate any conduct provided that some object used during the course of that conduct has crossed over a state or national boundary at any time in the past?

As the brief says, the answer to these questions would necessarily need to be "no" if there are to be any meaningful limits on the scope of federal criminal law.  Among other things, there has been a lot of talk about federal power under the treaty clause in the pending U.S. Supreme Court case Bond v. United States, with many commentators (and seemingly some Justices) viewing it as an undue and even absurd claim of federal power over a local criminal matter.  Yet if the government's theory in the Amish case is correct, Congress can criminalize the conduct in Bond through the commerce clause, making all the treaty-based arguments in Bond bizarrely irrelevant.

As I wrote earlier about the Amish case, "it's a test case for the seriousness of the Court's revivial of federalism.  Either this is a local crime, or there is no such thing as a local crime."

Jacob Sullum (Reason) has more on the Amish case here and here.

This is an interesting post on the case as well, at Sentencing Law and Policy, although not directly about federalism.