Today’s Argument in United States v. Cannon

While I am reprising themes from prior posts, I thought I would also note that the Fifth Circuit heard argument today in United States v. Cannon, a case on the constitutionality of the Matthew Shepard Hate Crime Prevention Act — whose justification under the Thirteenth Amendment I discussed here. Josh Blackman has a detailed account of the argument on his blog.

According to Josh, one big theme from the panel was the impact of Shelby County on the scope of Congress’s enforcement power under the Thirteenth Amendment, on which the panel ordered additional briefing. That’s not the question I’d expect the Supreme Court to focus on, but I can see why a lower court might do so. Lower courts don’t have the same power to revise or narrow prior Supreme Court cases, so if they want to strike down the Act they need to look for subsequent Supreme Court cases that can be argued to have changed the standard.