Since 1995, the contours of Congress’s Commerce Clause power have been undergoing a makeover. In United States v. Lopez1 and United States v. Morrison,2 the Supreme Court — in a departure from sixty years of Commerce Clause jurisprudence3 — struck down federal statutes because the activities regulated by those statutes did not “substantially affect”4 interstate commerce.5 Lopez and Morrison suggested that, under the “substantial effects” line of cases, regulations of “economic” activity were more likely to be permissible exercises of the Commerce Clause than were regulations of “noneconomic” activity.6 Since then, jurists and academics have struggled to make sense of and consistently apply this distinction.7 Recently, in United States v. Hill,8 the Fourth Circuit upheld the constitutionality of the Hate Crimes Act9 as applied to the defendant’s bias-motivated assault of a coworker while they were working at a packaging center.10 Although the court recognized that the regulated activity — the physical violence — was not itself economic, it relied on the assault’s limited effect on ongoing interstate commerce to justify its holding.11 In so doing, the court took a significant step toward retiring the economic/noneconomic distinction from Commerce Clause jurisprudence.
In May 2015, while working at an Amazon fulfillment center preparing packages for shipment, James Hill III violently attacked his coworker, Curtis Tibbs,12 causing packages to “fl[y] into the air and onto the ground.”13 Work in the area ceased for thirty to forty-five minutes so that blood could be cleaned off of the floor, and Tibbs missed the remaining hours of his shift.14 However, because other employees absorbed the extra work, Amazon did not miss any packaging deadlines that day.15
Later, Hill “boastfully admitted” that he had attacked Tibbs because Tibbs was gay.16 He was prosecuted17 under section 249(a)(2) of the Hate Crimes Act.18 A federal grand jury indicted him for “willfully caus[ing] bodily injury” to someone based on their “actual and perceived sexual orientation,” thereby “interfer[ing] with commercial . . . activity in which [the victim] was engaged at the time.”19
Hill moved to dismiss the indictment, advancing, inter alia, facial and as-applied challenges against § 249(a)(2) as an invalid exercise of Congress’s Commerce Clause power.20 The district court dismissed the indictment solely based on the as-applied challenge.21 The Fourth Circuit reversed on appeal, concluding that the indictment was facially valid, and remanded because it was “premature” to address the as-applied challenge prior to the development of the facts at trial.22 On remand, a jury convicted Hill.23 Hill renewed his as-applied challenge, and the district court granted his motion for a judgment of acquittal.24
On appeal, the Fourth Circuit reversed. Writing for the majority, Judge Wynn25 recognized that applying the Hate Crimes Act to the “unarmed assault of a victim engaged in commercial activity” was “an issue of first impression.”26 After first laying out the “legal backdrop”27 of the Commerce Clause and the Hate Crimes Act,28 the court analogized the Hate Crimes Act to the Hobbs Act29 and the federal arson statute.30 Based on cases in which the Supreme Court upheld convictions under those statutes,31 the court in Hill concluded that “when Congress may regulate a . . . commercial activity, it also may regulate violent conduct that interferes with . . . that activity.”32 Thus, what mattered was not the commercial nature of the conduct being regulated, but the commercial nature of the activity affected by the regulation.33
Therefore, the court held that Hill’s conduct fell within Congress’s Commerce Clause powers: shipment of interstate goods — the activity Hill and the victim were involved in at the time of the assault — easily qualified as interstate commerce.34 As such, the court need only find that Congress had a rational basis for concluding that the regulated conduct (in the aggregate35) substantially affected interstate commerce, not that a substantial effect existed in fact.36
Finally, the court distinguished Lopez and Morrison, which the defendant relied on in challenging the above-described “substantial effects” analysis.37 The court in Hill concluded that “whereas the Lopez and Morrison Courts found it significant that the statutes at issue had no . . . jurisdictional element, [section 249(a)(2) of] the Hate Crimes Act . . . expressly includes such an element.”38 This element ensures “through case-by-case inquiry”39 that the Hate Crimes Act “authorizes prosecution of only those bias-motivated crimes that interfere with . . . ongoing economic . . . activity”40 — without giving Congress a “general license to punish [all] crimes of violence motivated by discriminatory animus.”41
Judge Agee dissented. He first argued that the jurisdictional element did not sufficiently limit Congress’s power because the element the government relied on did not mention the word “interstate.”42 Next, he argued that bias-motivated violence — the activity the Hate Crimes Act prohibited — was not itself economic.43 He took issue with the majority’s conflation of the jurisdictional element and the economic nature of the activity — which he believed should remain separate inquiries.44 And he challenged the majority’s analogy to the Hobbs Act because in the main case the majority relied on,45 the Supreme Court explicitly limited its holding to the drug market context.46 Since the regulated activity was not economic, the effect of the defendant’s activity could not be aggregated to reach the requisite substantial effect.47 Because Hill’s attack, standing alone, had “no discernible impact” on the packaging process,48 Judge Agee concluded that it was not within Congress’s power to regulate.49
In grappling with the Supreme Court’s complicated Commerce Clause jurisprudence, the majority took another step toward retiring the economic/noneconomic distinction. Although this distinction was once deemed “central”50 to the Supreme Court’s “substantial effects” test, cases since Lopez and Morrison have significantly weakened its relevance — first by making an exception for noneconomic activity that is part of a “comprehensive regulatory scheme,”51 and then by focusing on the effects rather than the nature of the regulated activity. Hill took these cases a step further by focusing on the effect rather than the nature of the regulated activity, even in the absence of a comprehensive regulatory scheme. Although in tension with Lopez and Morrison, this move was appropriate given that the economic/noneconomic distinction has proven to be unworkable and ineffective.
In Lopez and Morrison, the Supreme Court distinguished between economic and noneconomic activity in an attempt to place limits on Congress’s Commerce Clause power.52 In striking down the Gun-Free School Zones Act53 in Lopez, the Court emphasized that the regulated activities “ha[d] nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.”54 Building on this analysis, the Court in Morrison struck down the damages provision of the Violence Against Women Act55 after admonishing: “[W]e need not adopt a categorical rule against aggregating the effects of any non-economic activity . . . , [but] thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activities only where that activity is economic in nature.”56 Many — including the dissent in Hill57, 927 F.3d at 221 (Agee, J., dissenting). — interpreted the economic nature of the regulated activity to be a prerequisite to aggregation.58 The Court did not clarify the underlying rationale behind this distinction59 — and many have questioned whether this distinction is doctrinally sound60 — but it is widely accepted that the distinction was designed to vindicate the values of federalism by performing some sort of gatekeeper role in the Court’s “substantial effects” test.61
Importantly, for this distinction to have significance, the economic or noneconomic nature of an activity cannot be determined by the activity’s effect on commerce. As Professor David Driesen explains: “[T]he role of a finding of noneconomic activity seems to involve biasing the analysis against finding a substantial effect. It would be circular to bring the question of whether a substantial effect exists into the determination of which activities are economic.”62 More specifically, the distinction separates those activities that can be considered in the aggregate from those that must be evaluated on their own terms.63 Therefore, if merely affecting commerce (but not substantially affecting commerce) is sufficient to render an activity “economic,” then the economic/noneconomic distinction has no bearing on the “substantial effects” analysis.64
Notwithstanding the economic/noneconomic distinction’s centrality in Lopez and Morrison, the Supreme Court sharply limited its significance in Gonzales v. Raich65 by permitting the regulation of noneconomic conduct as part of a “comprehensive regulatory regime.”66 In Raich, the Court addressed the constitutionality of the Controlled Substances Act67 as applied to individuals who locally cultivated or possessed marijuana for their personal medical use.68 Despite this activity lacking a clear connection to commerce, let alone interstate commerce, the Court held that the cultivation and possession of marijuana was part of an “economic ‘class of activities’”69 that could be regulated as part of a comprehensive regulatory scheme — here, the regulation of the interstate drug trade — that substantially affected interstate commerce.70 By permitting the regulation of noncommercial intrastate activity as part of a “class” of activities subject to a comprehensive regulatory scheme, Raich limited the significance of, but did not formally eliminate,71 the economic/noneconomic distinction.72
Taylor v. United States73 further undermined this distinction by focusing on the regulated activity’s effect on commerce, rather than its “nature.” In Taylor — which involved the statutory interpretation of the jurisdictional element in the Hobbs Act — the Supreme Court invoked Raich in rejecting the defendant’s claim that the statute could not apply to his attempted robbery of drug dealers selling only locally grown marijuana.74 The Court emphasized that what mattered was the economic nature of drug dealing generally — the activity affected — not the robbery.75 Taylor departed from Raich by focusing on the “class of activities” affected by drug robberies, rather than on the nature of the robbery, without attempting to show that the Hobbs Act was part of a “comprehensive” scheme for regulating the drug trade.76 Only the decision’s narrow context (the proper interpretation of a jurisdictional element)77 and limited holding (which was confined to robberies of drug dealers)78 prevented a direct collision with Lopez and Morrison.
The Hill majority’s approach — specifically its emphasis on Taylor as a source for its holding79 — represents another blow to the economic/noneconomic distinction. First, the majority in Hill invoked Taylor — a case involving statutory interpretation — to support the proposition that “under the Commerce Clause, Congress may proscribe violent conduct when such conduct interferes with or otherwise affects commerce over which Congress has jurisdiction.”80 In so concluding, the economic/noneconomic distinction did not drive the majority’s analysis; instead, the court focused on the regulated activity’s effect on a concrete aspect of commerce — the package preparation process.81 Second, although there is arguably an economic “class of activities” at issue in Hill (the interstate shipment of goods),82 the physical assault is not part of this class of activities. And like the statute at issue in Taylor, the Hate Crimes Act is not part of a comprehensive regulatory scheme for this class of activities.83 Finally, by relying on Taylor to establish that Congress could regulate activity based on its effect on commerce, the majority was able to argue that the Hate Crimes Act’s jurisdictional element — its requirement that Hill’s conduct affect “ongoing” commerce — satisfied Lopez and Morrison,84 which essentially read the economic/noneconomic distinction out of its analysis altogether.
The Fourth Circuit’s decision to focus on the effect of the defendant’s activity on commerce, rather than on its nature, is simply another step in retiring a distinction that has proven unworkable. At best, the economic/noneconomic distinction is an imperfect, and inconsistently applied, proxy for limiting federal jurisdiction over activity that is traditionally subject to local control and tenuously connected to interstate commerce.85 But a simple comparison between Raich — where the Court upheld the conviction of individuals who cultivated or possessed marijuana for personal use as a regulation of “economic” activity86 — and Hill — where the defendant assaulted a coworker in an interstate packaging facility87 — reveals its limitations as a meaningful dividing line “between what is truly national and what is truly local.”88 By relying on Taylor, rather than on Lopez and Morrison, the majority ensured that a hate-crime victim was not denied justice on the basis of a largely abandoned distinction.