Posted by Orin Kerr:
Judge Harry Pregerson, Champion of Federalism:
http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168635365
In a dissent filed today in [1]United States v. Reynard, Judge
Pregerson argued that the DNA Analysis Backlog Elimination Act of 2000
(the "DNA Act") is unconstitutional because it exceeds Congress's
authority. The DNA Act compels those convicted of qualifying federal
crimes to submit to DNA collection as a condition of being released on
federal probation or supervised release. In his dissent filed today,
Judge Pregerson argued that this law exceeded the Commerce Clause
power even after Raich:
[B]y passing the DNA Act, Congress is attempting to regulate
something that it � and nobody else � has put into the stream of
commerce. Reynard�s DNA � while housed in his body � is not a
"thing" in interstate commerce until the government, under the DNA
Act, compels the DNA's extraction by drawing blood from a parolee
and places the DNA in the stream of commerce for analysis. Congress
may not bootstrap its authority to regulate purely local activity
under the Commerce Clause. If the government is allowed to regulate
anything that it puts into the stream of commerce, its powers under
the Commerce Clause would be without limit. "To be sure, 'the power
to regulate commerce, though broad indeed, has limits.' " Citizens
Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003) (quoting Maryland v.
Wirtz, 392 U.S. 183, 196 (1968)). By arguing that Condon authorizes
Congress to regulate Reynard�s DNA only after the government has
placed it in interstate commerce, the government puts the
proverbial cart before the proverbial horse.
Because passage of the DNA Act cannot be justified under any of
the three "categories of regulation in which Congress is authorized
to engage under its commerce power," Raich, 125 S. Ct. at 2205, I
agree with Reynard that passage of the DNA Act exceeds Congress�s
power under the Commerce Clause.
[2]First Judge Reinhardt, now Judge Pregerson. I wonder if these
Judges want to bring back the [3]Constitution-in-Exile? (Hat tip:
[4]Decision of the Day)
References
1.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/B3973469E73BAB7D88257261000921AE/$file/0250476.pdf?openelement
2. file://localhost/volokh.com/2003_03_16_volokh_archive.html#200018243
3. http://volokh.com/posts/1104346631.shtml
4.
http://appellatedecisions.blogspot.com/2007/01/judge-pregerson-dissents-on.html#links
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