Facial Versus As-Applied

[Kim Daniels]

There's an interesting discussion of this issue in U.S. v. Wang, 222 F.3d
234 (6th Cir. 2000).  The defendant in Wang robbed two individuals of money
they happened to have just brought home from the restaurant they owned.  He
argued that, post-Lopez, this robbery was insufficiently connected with
interstate commerce to support his conviction under the Hobbs Act, which has
a jurisdictional element requiring such a connection.

The court agreed.  In reversing this particular application of the Hobbs
Act, the court beefed up the statute's jurisdictional nexus requirement by
holding that the connection to interstate commerce was too attenuated here.
While as a facial matter "the Hobbs' Act's de minimis standard survives
Lopez by virtue of the aggregation principle" [ie, "individual instances
arising under the statute could, through repetition, have a substantial
effect on interstate commerce"], post-Lopez, this aggregation principle
could not be applied "in conjunction with long chains of causal inference
that would have been necessary to arrive at a substantial effect on
interstate commerce" -- something the court termed "the butterfly effect
theory of causation."  See also U.S. v. Corp. 236 F.3d 325 (6th Cir.
2001)(declining to declare Child Abuse Victims Rights Act facially
unconstitutional, but holding it unconstitutional as applied; the court
again read the jurisdictional element as "a meaningful restriction", and
this time explicitly ignored the aggregate effect on interstate commerce of
the purely intrastate, possibly non-economic activity at issue).

So if, post-Lopez and -Morrison, courts are strengthening statutes'
jurisdictional elements in order to avoid overturning acts of Congress, what
result if a statute does not have such a jurisdictional element?

Kim Daniels

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of John Noble
Sent: Friday, April 20, 2001 2:12 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Facial Versus As-Applied

>The Court's test -- substantially affecting interstate commerce
(even leaving aside its emphasis on economic activity) -- suggests if you
can't get there in the aggregate, you're not going to get there "as
applied" by introducing a case-specific interstate commerce connection.
Sort of the flip-side of Wickard v Filburn -- if the field admits of
Commerce Clause authority, the authority extends even to purely intrastate
activity. An as-applied approach would open every area from family law to
property law to inconsistent federal and state regulation; and you could
apply the federal law whenever you could identify an interstate commerce
connection. It sure would complicate preemption analysis, and you'd end up
with federal question jurisdiction that is co-extensive with diversity
jurisdiction freed of the jurisdictional amount requirement. On the other
hand, if the "substantially affecting" interstate commerce test retained
any meaning, it would seem to open the door to challenging the acknowledged
exercise of Commerce Clause authority as applied. Does the minimum wage law
pass muster as applied to a housekeeper?