Ocasio v. United States, argued to the Supreme Court last week, at first seemed to me to raise federalism concerns. Noah Feldman at Bloomberg has a great preview: A Supreme Court Case for Fans of 'The Wire'. As he explains:
Samuel Ocasio was a Baltimore police officer who participated in a kickback plot that worked like this: At the scene of an accident, the officer would refer stranded motorists to the Majestic Repair Shop for towing and repairs. Then the owners of Majestic would pay the officers from $150 to $300 a car. …
The reason we know about this is, well, a wire. Federal agents were wiretapping Majestic, and they recorded scores of calls connected to the kickbacks.
Ocasio’s fellow officers all pleaded guilty. But Ocasio decided to roll the dice. After he was convicted, he appealed to the U.S. Court of Appeals for the 4th Circuit.
His argument was deceptively simple. The sole charge in the indictment was conspiracy to commit extortion. The relevant [federal] law, called the Hobbs Act, defines extortion as “the obtaining of property from another, with his consent, under color of official right.”
Ocasio claimed he couldn’t be guilty of conspiring to obtain property from Majestic’s owners because they couldn’t be guilty of extortion. They in turn couldn’t be guilty because they were being extorted, not doing the extorting. They weren’t obtaining property from themselves, after all. And they couldn’t have conspired to obtain property from “another,” because they were part of the conspiracy, not outside it.
That's an interesting statutory interpretation question (Professor Feldman has more), but my initial reaction was: how is this a federal case? So some guy in Baltimore has a two-bit kickback scheme. I'm sure a lot of shady things go on in Baltimore. Unless federal criminal law can reach everything, because everything sort of affects interstate commerce (in the sense that someone from out of state might happen to drive into one of Ocasio's schemes), this seems beyond any federal enumerated power.
Although federal power isn't an issue in the Supreme Court case, apparently Justice Scalia had some similar concerns at oral argument, questioning the reach of federal commerce power (see here).
But on further reflection, isn't this not a commerce clause case, but a Section 5 case? Congress has power to enforce the Fourteenth Amendment, which includes the provision that no state shall deprive anyone of property without due process of law. Officer Ocasio acts on behalf of a local subdivision of the state. I assume he could be sued for bad acts under 42 U.S.C. 1983, which is presumably valid under Congress' Section 5 power. He is depriving someone of property, obviously without due process. So Congress can enforce the due process clause against him. The same should be true of a Hobbs Act prosecution applied to him as a state officer.
This shows how the Fourteenth Amendment changed the balance between the states and the federal government. Surely, prior to 1868, it would have been absurd to suggest that Congress could regulate the activities of local law enforcement, even though those activities did sometimes affect people travelling in interstate commerce. But the Fourteenth Amendment reflected a loss of confidence in local law enforcement, and accordingly it created a federal supervisory role for Congress. And federal criminal cases would be a lot more interesting if we didn't assume that the commerce clause allows (almost) everything.
Posted at 6:29 AM