United States v. Bird

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In United States v. Bird, 124 F.3d 667, 678 (5th Cir. 1997) ("Bird I"), the U.S. Court of Appeals for the Fifth Circuit held that the Freedom of Access to Clinic Entrances Act (FACE) is a valid exercise of Congress's authority under the Commerce Clause.

In United States v. Bird, 401 F.3d 633 (5th Cir. 2005) ("Bird II"), the Fifth Circuit affirmed Bird I and reinstated a conviction against a defendant for violating FACE with respect to an abortion clinic. Judge Emilio Garza, writing for the 2-1 panel, stated that:[1]

We do not find that the Supreme Court's decision in Morrison materially affects our holding in Bird I. Our decision in that case is therefore binding. Cf. United States v. Pettigrew, 77 F.3d 1500, 1511 n.1 (5th Cir. 1996) ("While ... one panel of this Court is generally powerless to overrule the previous decision of another panel ..., an exception to this rule arises when there has been an intervening decision by the United States Supreme Court overriding the earlier decision."). Accordingly, we VACATE the district court's order and REMAND for further proceedings not inconsistent with this opinion.

Judge Harold DeMoss, who dissented in Bird I, wrote a notable dissent in support of federalism:[2]

Bird filed a pretrial motion to dismiss the indictment, contending that Congress impermissibly exceeded its power under the Commerce Clause when it enacted FACE and citing the Supreme Court's decision in United States v. Morrison, 529 U.S. 598, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (2000), as effecting a change in the Commerce Clause analysis that now renders moot our previous decision in United States v. Bird, 124 F.3d 667 (5th Cir. 1997) ("Bird I"). The district court agreed and granted Bird's motion to dismiss the indictment, concluding that its ruling was in line with the Supreme Court's decisions in both United States v. Lopez, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), and Morrison. ... Bird maintains that Morrison clearly rejected the "national commercial market" theory of aggregation espoused in Bird I and argued here by the Government. The majority has concluded that Morrison does not "materially affect[]" our decision in Bird I. ....
I. The regulated activity is intrastate and noncommercial.
The Supreme Court's decision in Lopez set forth three broad categories under which Congress could regulate intrastate activities through its Commerce Clause powers. 514 U.S. at 558. The third category, and the one at issue here, provides that Congress can regulate certain intrastate activities that have a substantial effect on interstate commerce. Id. at 558-59. In Lopez, the statute made the subject of the Court's review was the Gun-Free School Zones Act of 1990 ("GSA"), a criminal statute that made it a federal offense to knowingly possess a firearm in a school zone. See 18 U.S.C. § 922(q)(1)(A) (1994). The Court determined that the GSA was "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at 561. Accordingly, the Lopez Court concluded that the GSA was unconstitutional in part because it regulated an activity that was noneconomic and therefore could not be justified under the third prong of Congress's Commerce Clause authority. Id. at 551, 560-61, (noting that "even Wickard [v. Filburn, 317 U.S. 111, 87 L. Ed. 122, 63 S. Ct. 82 (1942)], which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not"), 566.
Then, in Morrison, the Supreme Court again was faced with a federal statute, the Violence Against Women Act ("VAWA"), 42 U.S.C. § 13981, that sought to regulate criminal activity, this time in the form of gender-motivated violence. The Court first observed that "a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case." 529 U.S. at 610 (emphasis added). The Morrison Court further explicated that requiring the regulation to be of an economic activity is essential to the limitations set forth in the [**7] Commerce Clause, noting that "Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor." Id. at 611 (emphasis added).[3] Using the lack of an economic element in the activity being regulated as partial justification, the Court subsequently struck down VAWA as an impermissible exercise of Congress's Commerce Clause. Morrison, 529 U.S. at 617-18. ...
Because Congress does not have a general police power, it surely cannot have the authority to define as criminal conduct under federal law private acts that are intended to interfere with another person's exercise of some constitutional right, whether that right is to be free from gender-based violence as in VAWA or to choose to access reproductive health services, such as abortion, as in FACE. Purely criminal activities that are not premised in economic or commercial contexts are subject to an entirely different scheme of congressional regulations, none of which is justifiable under the Commerce Clause. ....
II. Morrison expressly precludes the aggregation of noncommercial, criminal activity.
... Morrison refutes the concept of an aggregate effect on a national market when the conduct proscribed is violent criminal conduct. 529 U.S. at 615-19. As a preliminary matter, the Commerce Clause may not reach noneconomic activity that only affects commerce through a "but-for" causal chain. Id. at 613. ...
In sum, FACE, as interpreted now in light of Morrison, represents another effort by Congress to dismantle the federalist foundation upon which this country was designed to function. The regulation of purely intrastate, noneconomic, noncommercial criminal activity that is not essential to a broader regulatory scheme surely cannot be within Congress's purview. To uphold the constitutionality of this statute in the face of the teachings provided by Lopez and Morrison not only ignores the precedents established by both of these decisions, but also essentially grants to Congress the unfettered authority to govern in areas the Framers contemplated would be regulated only by the states. Because I believe the Constitution and the Supreme Court disallow the result reached by the majority's holding, I respectfully dissent.


  1. footnotes omitted
  2. footnotes omitted
  3. citing Lopez, 514 U.S. at 559-60