Federalism and the Federal Criminal Law

The Supreme Court's decisions in United States v. Lopez and United States v. Morrison have raised serious questions about the scope of Congress's commerce clause jurisdiction in creating federal crimes. This Article analyzes those cases as well as Jones v. United States, and other Supreme Court cases interpreting federal criminal laws, in order to assess the current scope of federal commerce clause jurisdiction.\nIt concludes that while it is not the intent of the Supreme Court to cut serious inroads into federal jurisdiction, the impact of Lopez and Morrison is greater than the lower federal courts have recognized. In particular, private individuals are no longer subject to federal commerce clause jurisdiction, either as victims or perpetrators of crime. Rather, either the criminal or the victim must be a commercial entity for jurisdiction to lie. But if the victim is a commercial entity, then the effects of that crime and similar crimes can be aggregated to show the required "substantial effect" on commerce. Merely because a crime like robbery or extortion is economically motivated does not make it "commercial" under Lopez.\nA substantial effect on interstate commerce is also not shown if the subject of the crime, a gun, for example, has at some time in the past traveled in commerce, but Congress's power to regulate the channels of commerce does extend to the actual shipping of a gun in, or its receipt from, interstate commerce.