  Constitutionality of Federal Habitual Offender Legislation

Provisions o f proposed “habitual offender” legislation would be within Congress’ power
  under the Comm erce Clause even though they may penalize activities w hich are
  entirely intrastate, if Congress has a rational basis for finding that these activities have
  some effect on interstate commerce.

                                                                     November 13, 1981
MEMORANDUM OPINION FOR T H E ASSISTANT ATTORNEY
         GENERAL, CRIM INAL DIVISION

  This responds to your request for our views regarding the power of
Congress to enact S. 1688. We will examine other constitutional impli­
cations of S. 1688 at a later date.
  Section 2118(a) of S. 1688 (97th Cong., 1st Sess.) provides:
          Whoever commits, conspires, or attempts to commit a
        robbery or a burglary in violation of the felony statutes of
        a State or of the United States while using, threatening to
        use, displaying or possessing a firearm, after having been
        twice convicted of a robbery or a burglary in violation of
        the felony statutes of a State or the United States is a
        career criminal and upon conviction shall be sentenced to
        imprisonment for life.
The bill further provides that defendants accused under this provision
shall be admitted to bail “only as provided in capital cases” and that
sentences under this provision shall not be suspended. It requires that
trials occur and appeals be decided within 60 days. Additionally, sec­
tion 4 contains an expression of congressional intent that the federal
government ordinarily defer to state prosecution, but that “if the Attor­
ney General or a United States Attorney, in consultation with appropri­
ate State or local officials, determines that there is a significant Federal
interest in the case and the State authorities are unlikely to secure a
sentence of imprisonment for life, then Federal prosecution may be
brought.”
   At the outset, we would observe that the bill might be read to
impose its substantive requirements on the states in the course of their
conduct of state prosecution. Such an interpretation raises serious Tenth
Amendment concerns. See National League o f Cities v. Usery, 426 U.S.
833, 855 (1976). Although we read the bill as proposing only establish­
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ment of a federal offense, to be decided in the federal courts and having
no impact on the right of the states to enforce their own criminal laws,
we recommend that the language of the bill be made less ambiguous in
this regard.
   If Congress has the power to legislate as it proposes in S. 1688, that
power is derived from the Commerce Clause, which permits Congress
to “regulate Commerce . . . among the several States.” U.S. Const.,
Art. I, §8, cl. 3. The clause grants the power to regulate not only the
channels and instrumentalities of interstate commerce, but also those
activities having an effect on interstate commerce. Perez v. United
States, 402 U.S. 146, 150 (1971). Because S. 1688 does not contain a
specific interstate commerce nexus as an element of the crime, it falls
within the category of legislation regarding activities affecting interstate
commerce.
   Congress has often legislated in the criminal field by specifically
prohibiting activities that occur in interstate commerce, but it also has
legislated without requiring that a connection with interstate commerce
be proved as an element of every crime. See, e.g., 18 U.S.C. § 922(b),
1955. Its power to do so derives from a long line of cases holding that
even purely intrastate activity may be regulated, where that activity
“combined with like conduct by others similarly situated, affects com­
merce among the states. . . .” National League o f Cities v. Usery, 426
U.S. 833, 840 (1976), quoting Fry v. United States, 421 U.S. 542, 547
(1975). See, e.g., Wickard v. Filburn, 317 U.S. I l l (1942).
   Thus, Title II of the Consumer Credit Protection Act, which prohib­
its “extortionate credit transactions” or “loan-sharking,” has been de­
clared constitutional by the Supreme Court. Perez v. United States, 402
U.S. 146 (1971). In so holding, the Court noted that “[e]xtortionate
credit transactions, though purely intrastate, may in the judgment of
Congress affect interstate commerce.” 402 U.S. at 154. In considering
Title II, Congress had received extensive testimony about the connec­
tion between loan-sharking and interstate organized crime. It made
specific findings as to this connection and further found that
“[e]xtortionate credit transactions are carried on to a substantial extent
in interstate and foreign commerce and through the means and instru­
mentalities of such commerce. Even where extortionate credit transac­
tions are purely intrastate in character, they nevertheless directly affect
interstate and foreign commerce.” 402 U.S. at 147 n.l.
   Similarly, Congress enacted 18 U.S.C. § 1955, which makes it a fed­
eral offense to conduct, finance, manage, supervise, direct, or own a
gambling business that: (1) is in violation of state or local law; (2)
involves five or more persons; and (3) has operated for more than 30
days or takes in at least $2,000 per day. This statute has been upheld
repeatedly as within Congress’ power under the Commerce Clause. See,
e.g., United States v. Kail, 612 F.2d 443, 449 (9th Cir. 1979), cert, denied,

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445 U.S. 969 (1980); United States v. Abramson, 553 F.2d 1164, 1173
(8th Cir.), cert, denied, 433 U.S. 911 (1977); United States v. Sacco, 491
F.2d 995, 999-1001 (9th Cir. 1974) (en banc)-, United States v. Harris,
460 F.2d 1041, 1044-46 (5th Cir.), cert, denied, 409 U.S. 877 (1972). In
considering the constitutionality of § 1955, the courts have applied the
accepted test for determining whether Congress acted within its powers
in prohibiting an entire class of activities as having an undesirable effect
on interstate commerce: (1) “Whether Congress had a rational basis for
finding that [the activity] affected commerce, and (2) if it had such a
basis, whether the means it selected to eliminate that evil are reasonable
and appropriate.” Heart o f Atlanta Motel, Inc. v. United States, 379 U.S.
241, 258-59 (1964); Sacco, 491 F.2d at 999. The legislative history of
§ 1955, like that of Title II, revealed specific congressional findings
about the connections between illegal gambling and organized crime
and interstate commerce, as well as the need for federal involvement
for effective control of the problem. Sacco, 491 F.2d at 999.
   Congress has also specifically regulated intrastate transactions in fire­
arms, see 18 U.S.C. §§921-928, “on the theory that such transactions
affect interstate commerce.” See Huddleston v. United States, 415 U.S.
814, 833 (1974); Mandina v. United States, 472 F.2d 1110, 1113-14 (8th
Cir.), cert, denied, 412 U.S. 907 (1973); United States v. Menna, 451 F.2d
982, 984 (9th Cir. 1971), cert, denied, 405 U.S. 963 (1972). Section
922(d)(1), for example, prohibits the sale o f firearms to those under
indictment for or convicted of felonies, without a specific requirement
that the individual sale be in interstate commerce. This section has been
upheld as within Congress’ powers under the Commerce Clause. United
States v. Nelson, 458 F.2d 556, 559 (5th Cir. 1972).
   As you noted in your October 26, 1981, statement to the Senate
Judiciary Committee, it may be a sufficient basis for enacting S. 1688
that “ [r]obberies and burglaries of homes, stores, businesses, and travel­
ers directly interfere with interstate commerce by impeding the free
flow of goods and people, and by affecting insurance rates, real estate
values, and the general cost of operating businesses, among other
things.” Career Criminal Life Sentence Act o f 1981: Hearings on S. 1688,
S. 1689, and S. 1690 Before the Subcomm. on Juvenile Justice o f the
Senate Comm, on the Judiciary, 97th Cong., 1st Sess. 21 (1981) (state­
ment of D. Lowell Jensen). On the other hand, this statement may be
so generally applicable to state and local crimes as to be unpersuasive
as a statement of the basis for enacting S. 1688. Although the courts
have emphasized that Congress need not make particularized findings,
Perez, 402 U.S. at 154; Sacco, 491 F.2d at 1000, the statutes discussed
above have contained clear statements of the federal interest involved
(in the statute or the legislative history), and it is uncertain how far the


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commerce power extends without such specific congressional consider­
ation. 1
   Although we believe that the broad powers granted to Congress
under the Commerce Clause would permit legislation like S. 1688 on
the proper record, we are unable to say that S. 1688 would be consid­
ered within Congress’ powers if the statute or its history is silent on this
matter, or if Congress’ asserted interest is one generally applicable to all
crimes. While the commerce power is broad, it is not limitless. We do
not believe that S. 1688, on its face, provides as certain a basis for
congressional action as the three statutes discussed above. Therefore,
while they provide support for enacting S. 1688, they do not decide the
constitutional question definitively.

                                                     T h e o d o r e B. O l s o n
                                                  Assistant Attorney General
                                                   Office o f Legal Counsel




   1 In determining whether Congress acted withm its powers under the Commerce Clause, some cases
have emphasized Congress’ perception that existing state control was inadequate. See, e.g.. United
States v. O'Neill, 467, F.2d 1372 (2d Cir. 1972). Although we do not believe that state inadequacy in a
particular area is a requirement for Congress to legislate under the Commerce Clause, a congressional
determination that state efforts are inadequate would not be unhelpful.

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