Posted by Orin Kerr:
Statutory Federalism:
http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118765572
Although [1]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 [2]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 Boston case, [3]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 [4]White Collar Crime Prof
Blog for the link, and for posting the opinion.
References
1.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-1454
2. http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=1343
3.
http://lawprofessors.typepad.com/whitecollarcrime_blog/files/order_granting_rule_29_on_wire_fraud.pdf
4.
http://lawprofessors.typepad.com/whitecollarcrime_blog/2005/06/wire_fraud_requ.html
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