Judge Harry Pregerson, Champion of Federalism:
In a dissent filed today in United States v. Reynard, Judge Pregerson argued that the DNA Analysis Backlog Elimination Act of 2000 (the "DNA Act") is unconstitutional because it exceeds Congress's authority. The DNA Act compels those convicted of qualifying federal crimes to submit to DNA collection as a condition of being released on federal probation or supervised release. In his dissent filed today, Judge Pregerson argued that this law exceeds the Commerce Clause power even after Raich:
[B]y passing the DNA Act, Congress is attempting to regulate something that it — and nobody else — has put into the stream of commerce. Reynard’s DNA — while housed in his body — is not a "thing" in interstate commerce until the government, under the DNA Act, compels the DNA's extraction by drawing blood from a parolee and places the DNA in the stream of commerce for analysis. Congress may not bootstrap its authority to regulate purely local activity under the Commerce Clause. If the government is allowed to regulate anything that it puts into the stream of commerce, its powers under the Commerce Clause would be without limit. "To be sure, 'the power to regulate commerce, though broad indeed, has limits.' " Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003) (quoting Maryland v. Wirtz, 392 U.S. 183, 196 (1968)). By arguing that Condon authorizes Congress to regulate Reynard’s DNA only after the government has placed it in interstate commerce, the government puts the proverbial cart before the proverbial horse.First Judge Reinhardt, now Judge Pregerson. I wonder if these Judges want to bring back the Constitution-in-Exile? (Hat tip: Decision of the Day)
Because passage of the DNA Act cannot be justified under any of the three "categories of regulation in which Congress is authorized to engage under its commerce power," Raich, 125 S. Ct. at 2205, I agree with Reynard that passage of the DNA Act exceeds Congress’s power under the Commerce Clause.
Man bites dog always gets the commentary.
[OK Comments: AF, your sense of what I'm suggesting is pretty far off. My impression, based on reading hundreds of their opinions over the years, is that Pregerson and Reinhardt are chiefly opportunists. That is, they will each take whatever argument they can find to try to justify the result they want. Do you disagree?]
Prison isn't a regulation of interstate commerce either, but it can be imposed after a conviction for a federal offense as necessary and proper to carrying into execution the enumerated power invoked by the criminal statute. In other words, having written Part II.E.1 of the opinion, why does the court need to reach the commerce question in II.E.2-.3?
This seems pretty embarassing for Pregerson...
As I recall, the dicta in McCulloch that seminally explained and defined the Necessary and Proper Clause reasoned that almost the entire federal penal code -- nowhere mentioned in the Constitution except for a handful of specific offenses -- was derived from the N&P Clause.
I should think that the collection of DNA is arguably incidental to the operation of the federal penal system itself, just like fingerprints. The very power actually to punish almost any federal crime by imprisonment is an implied power, as is the establishment and operation of the federal prison system. The criminal statutes themselves, which define various acts that are punishable, still need ultimate grounding in the Commerce Clause or some other enumerated power.
I'd agree with your point if Congress said it needed to get the DNA to provide law enforcement power under the N&P clause, but here the taking is based on the person's *releas* from custody, and the DNA isn't *necessarily* needed for the conviction in the first place.
I wonder, instead, if this would be an unreasonable seizure of DNA if the DNA isn't needed for the initial conviction. That doesn't seem like it can be right, since the same objection would hold to the collection of fingerprints, but I can't at the moment think of why.
A man spends years in a prison cell. He has to use the toilet in public, and he is frequently raped. And we're discussing whether or not he must "submit to DNA collection" -- that is, have his cheek swabed -- in order to be released.
This is crazy.
[OK Comments: I don't know what "liberal federalism" is, or why we should focus on how to characterize judicial assessments of the desirability of binding precedents. The post is about a specific case, not whether it is in some sense desirable for particulr judges to pick up certain legal arguments.]
Both liberals and conservatives tend to enjoy federalism to the precise extent that it allows their policy goals to be realized. When Republicans controlled the federal government, for example, they suddenly fell out of love with the notion. Liberals realized at some point that allowing states to experiement with gay marriage was a much better result than seeing it banned at the federal level, and so on.
The decision under discussion here just seems flat-out arbitrary.
Sadly, their attempts are doomed to failure at the hands of self-proclaimed originalists like Scalia. Irony indeed.
He's definitely a opportunist (or a results-oriented judge - the categories overlap greatly), but lacks the intellectual firepower to realize when his opportunism is nonsensical - here, as multiple commentators have pointed out, Congressional power isn't from the Commerce Clause, but from the Necessary and Proper Clause.
Nick
Congress' authority under the commerce clause, you mean.
I have to ask, if Congress has the authority to pass the DNA bill and impose its conditions on federal prisoners under one of its other powers, as Pregerson seems to have agreed, what difference does the commerce clause make? It's irrelevant.
This seems a bit exaggerated. Why is not the power to regulate something ("commerce among the states") include the power to impose criminal sanctions for the most egregious violations of such regulation? If the Commerce Clause includes the power to, for example, regulate labelling of foods and drugs sold in interstate commerce, then why couldn't criminal sanctions be imposed upon, for example, blatantly fraudulent labelling of such goods?