Although Gonzales v. Raich doesn’t offer much hope for meaningful constitutional limits on the scope of federal power under the Commerce Clause, a recent case from Massachusetts offers a useful reminder of the continuing role of Congress in this area.
The case involved the wire fraud statute, which punishes fraudulent schemes involving a “wire, radio, or television communication [transmitted] in interstate or foreign commerce.” The interstate commerce requirement in federal criminal statutes such as the wire fraud statute has always been understood to require that a communication in interstate commerce must actually cross state lines. That’s not a hard standard to meet in most cases, especially given modern communications technologies. For example, in United States v. Kammersell, 196 F.3d 1137 (10th. Cir. 1999), the Tenth Circuit held that the federal interstate threat statute applied to an AOL instant message sent from a suburb of Ogden Utah to downtown Ogden, just a few miles away. Why? Just follow the path of the IM: to be delivered, the IM had to travel from Utah to AOL’s servers in Virginia, and back to Utah.
Even if the interstate requirement is easily met in many cases, it does provide a clear statutory limiting principle for the scope of federal power in many contexts. In the Massachusetts case, United States v. Philips, prosecutors argued that they could satisfy the elements of the wire fraud statute without actually showing that any communications had travelled across state lines. They argued that it was enough that the communications in that case travelled by means of an instrument of interstate commerce, such as the phone system. The trial judge initially bought this theory, and the jury convicted on it (as well as a number of other theories). Ruling on a post-trial motion on June 8th, however, the Judge properly changed course and recognized that the wire fraud statute does not apply absent a communication that actually travels across state lines. As the judge noted, the fact that Congress could expand the statute to cover intrastate communications as a constitutional matter wasn’t the relevant question; Congress chose a narrower approach, and that narrower approach was binding as a matter of statutory law. The judge therefore granted the defendants’ motion as a matter of law in their favor on the wire fraud count.
To be sure, Philips is only a minor victory for those of us in favor of some limits on the scope of federal power. But at this point any such ruling seems worth noting. Thanks to White Collar Crime Prof Blog for the link, and for posting the opinion.
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