Alderman v. United States ( 2011 )


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  •                  Cite as: 562 U. S. ____ (2011)            1
    THOMAS, J., dissenting
    SUPREME COURT OF THE UNITED STATES
    CEDRICK B. ALDERMAN v. UNITED STATES
    ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
    STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
    No. 09–1555. Decided January 10, 2011
    The petition for a writ of certiorari is denied.
    JUSTICE THOMAS, with whom JUSTICE SCALIA joins
    except for footnote 2, dissenting from the denial of certio
    rari.
    Today the Court tacitly accepts the nullification of our
    recent Commerce Clause jurisprudence. Joining other
    Circuits, the Court of Appeals for the Ninth Circuit has
    decided that an “implic[it] assum[ption]” of constitutional
    ity in a 33-year old statutory interpretation opinion
    “carve[s] out” a separate constitutional place for statutes
    like the one in this case and pre-empts a “careful parsing
    of post-Lopez case law.” 
    565 F. 3d 641
    , 645, 647, 648
    (2009) (citing Scarborough v. United States, 
    431 U. S. 563
    (1977)). That logic threatens the proper limits on Con
    gress’ commerce power and may allow Congress to exer
    cise police powers that our Constitution reserves to the
    States. I would grant certiorari.
    I
    Title 
    18 U. S. C. §931
    (a) makes it “unlawful for a person
    to purchase, own, or possess body armor, if that person
    has been convicted of a felony that is . . . a crime of vio
    lence.” James Guelff and Chris McCurley Body Armor Act
    of 2002, §11009(e)(2)(A), 
    116 Stat. 1821
    . The statute
    defines “body armor” as “any product sold or offered for
    sale, in interstate or foreign commerce, as personal protec
    tive body covering intended to protect against gunfire.” 
    18 U. S. C. §921
    (a)(35).
    In October 2005, federal prosecutors indicted Cedrick
    2               ALDERMAN v. UNITED STATES
    THOMAS, J., dissenting
    Alderman under §931. Seattle police had stopped Alder
    man on suspicion of selling cocaine. The officers found no
    cocaine but discovered that Alderman was wearing a
    bulletproof vest. Although possession of the vest was legal
    under Washington state law, the elements of §931 were
    satisfied. Alderman had been convicted of robbery in
    1999, and the vest had been sold in interstate commerce
    three years earlier when the California manufacturer sold
    it to a distributor in Washington State. 
    565 F. 3d, at 644
    .
    There were no allegations that Alderman had purchased
    the body armor from another State or ever carried it
    across state lines.
    Alderman entered a conditional guilty plea and was
    sentenced to 18 months in prison. He then appealed,
    arguing that §931 exceeded Congress’ power under the
    Commerce Clause. U. S. Const., Art. I, §8, cl. 3. Over a
    dissent, a panel of the Ninth Circuit found §931 constitu
    tional. 
    565 F. 3d, at 648
    ; 
    ibid.
     (Paez, J., dissenting). The
    Ninth Circuit denied rehearing en banc, with four judges
    dissenting. 
    593 F. 3d 1141
     (2010) (O’Scannlain, J., dis
    senting from denial of rehearing en banc).
    II
    This Court has consistently recognized that the Consti
    tution imposes real limits on federal power. See Gregory
    v. Ashcroft, 
    501 U. S. 452
    , 457 (1991); Marbury v. Madi
    son, 
    1 Cranch 137
    , 176 (1803) (opinion for the Court by
    Marshall, C. J.) (“The powers of the legislature are de
    fined, and limited; and that those limits may not be mis
    taken, or forgotten, the constitution is written”). It follows
    from the enumeration of specific powers that there are
    boundaries to what the Federal Government may do. See,
    e.g., Gibbons v. Ogden, 
    9 Wheat. 1
    , 195 (1824) (“The enu
    meration presupposes something not enumerated . . .”).
    The Constitution “withhold[s] from Congress a plenary
    police power that would authorize enactment of every type
    Cite as: 562 U. S. ____ (2011)           3
    THOMAS, J., dissenting
    of legislation.” United States v. Lopez, 
    514 U. S. 549
    , 566
    (1995).
    Recently we have endeavored to more sharply define
    and enforce limits on Congress’ enumerated “[p]ower . . .
    [t]o regulate Commerce . . . among the several States.”
    U. S. Const., Art. I, §8, cl. 3. Lopez marked the first time
    in half a century that this Court held that an Act of Con
    gress exceeded its commerce power. We identified three
    categories of activity that Congress’ commerce power
    authorizes it to regulate: (1) the use of the channels of
    interstate commerce; (2) the instrumentalities of inter
    state commerce; and (3) “activities having a substantial
    relation to interstate commerce . . . i.e., those activities
    that substantially affect interstate commerce.” 
    514 U. S., at
    558–559. Emphasizing that we were unwilling to “con
    vert congressional authority under the Commerce Clause
    to a general police power,” 
    id., at 567
    , we struck down a
    ban on the possession of firearms within a 1,000-foot
    radius of schools because the statute did not regulate an
    activity that “substantially affect[ed]” interstate com
    merce, 
    id., at 561
    .
    Five years after Lopez, we reaffirmed the “substantial
    effects” test in United States v. Morrison, 
    529 U. S. 598
    (2000). We rejected Congress’ attempt to “regulate none
    conomic, violent criminal conduct based solely on that
    conduct’s aggregate effect on interstate commerce,” and
    held unconstitutional the civil remedy portion of the Vio
    lence Against Women Act of 1994. 
    Id., at 617, 619
    . We
    could think of “no better example of the police power,
    which the Founders denied the National Government and
    reposed in the States.” 
    Id., at 618
    .
    III
    In upholding §931(a), the Ninth Circuit recognized that
    Lopez and Morrison had “significantly altered the land
    scape of congressional power under the Commerce Clause”
    4               ALDERMAN v. UNITED STATES
    THOMAS, J., dissenting
    but held that it was guided “first and foremost” by Scar
    borough, 
    supra.
     
    565 F. 3d, at 643, 645
    . In Scarborough,
    this Court construed 18 U. S. C. App. §1202(a) (1970 ed.),
    which made it a crime for a felon to “receiv[e], posses[s], or
    transpor[t] in commerce or affecting commerce” any fire
    arm. 
    431 U. S., at 564
    . The question in that case was
    whether the “statutorily required nexus between the
    possession of a firearm by a convicted felon and commerce”
    could be satisfied by evidence that the gun had once trav
    eled in interstate commerce. 
    Ibid.
     The Court held that
    such evidence was sufficient, noting that the legislative
    history suggested that Congress wished to assert “ ‘its full
    Commerce Clause power.’ ” 
    Id., at 571
    . No party alleged
    that the statute exceeded Congress’ authority, and the
    Court did not hold that the statute was constitutional.
    The Ninth Circuit concluded that Scarborough had “im
    plicitly assumed the constitutionality of” §1202(a). 
    565 F. 3d, at 645
    .
    The Ninth Circuit discussed how it might apply Lopez
    and Morrison “when traveling in uncharted waters” but
    ultimately concluded that it was “bound by Scarborough,”
    in which this Court had “blessed” a “nearly identical juris
    dictional hook.” 
    565 F. 3d, at 648
    . Although it would
    “generally analyze cases in the framework of th[e] three
    [Lopez] categories,” the Ninth Circuit determined that
    Scarborough had “carved out” a separate constitutional
    niche for statutes like §931(a) and §1202(a). 
    565 F. 3d, at
    646–647. The Ninth Circuit thus upheld the statute with
    out “engag[ing] in the careful parsing of post-Lopez case
    law that would otherwise be required.” 
    Id., at 648
    . The
    court recognized a tension between Scarborough and
    Lopez but declined to “deviate from binding precedent.”
    
    565 F. 3d, at 646
    .
    The dissent argued that the court had “effectively ren
    der[ed] the Supreme Court’s three-part Commerce Clause
    analysis superfluous.” 
    Id., at 648
     (opinion of Paez, J.).
    Cite as: 562 U. S. ____ (2011)                    5
    THOMAS, J., dissenting
    Scarborough, the dissent explained, “decided only a ques
    tion of statutory interpretation.” 
    565 F. 3d, at 656
    . Sec
    tion 931 was, in the dissent’s view, unconstitutional be
    cause applying Lopez, “felon-possession of body armor does
    not have a substantial effect on interstate commerce.” 
    565 F. 3d, at 648
    .
    The Ninth Circuit is not alone in its confusion about
    Scarborough and Lopez. The Tenth Circuit, also uphold
    ing §931 under Scarborough, has observed that “[l]ike our
    sister circuits, we see considerable tension between Scar
    borough and the three-category approach adopted by the
    Supreme Court in its recent Commerce Clause cases.”
    United States v. Patton, 
    451 F. 3d 615
    , 636 (2006).1 These
    Circuits have determined that “[a]ny doctrinal inconsis
    tency between Scarborough and the Supreme Court’s more
    recent decisions is not for [us] to remedy,” ibid., and have
    stated their intent to follow Scarborough “until the Su
    preme Court tells us otherwise.” 
    565 F. 3d, at 648
     (inter
    nal quotation marks and brackets omitted).
    IV
    It is difficult to imagine a better case for certiorari.
    Scarborough, as the lower courts have read it, cannot be
    reconciled with Lopez because it reduces the constitutional
    analysis to the mere identification of a jurisdictional
    hook like the one in §1202(a). See 
    593 F. 3d, at 1142
    (O’Scannlain, J., dissenting from denial of rehearing en
    banc) (“The majority’s opinion makes Lopez superfluous”).
    In fact, the Tenth Circuit has concluded that “[a]lthough
    the body armor statute does not fit within any of the Lopez
    ——————
    1 Other Courts of Appeals, considering the constitutionality of differ
    ent possession statutes, have applied Scarborough similarly, although
    the issue has divided some panels. See, e.g., United States v. Bishop, 
    66 F. 3d 569
     (CA3 1995); 
    id.,
     at 595–596 (Becker, J., concurring in part
    and dissenting in part); United States v. Vasquez, 
    611 F. 3d 325
     (CA7
    2010); 
    id., at 337
     (Manion, J., dissenting).
    6                 ALDERMAN v. UNITED STATES
    THOMAS, J., dissenting
    categories, it is supported by the pre-Lopez precedent of
    Scarborough.” Patton, 
    supra, at 634
    .
    Recognizing the conflict between Lopez and their inter
    pretation of Scarborough, the lower courts have cried out
    for guidance from this Court. See 
    565 F. 3d, at 643
    (“[A]bsent the Supreme Court or our en banc court telling
    us otherwise . . . the felon-in-possession of body armor
    statute passes muster”); Patton, 
    supra, at 636
     (“We sus
    pect the Supreme Court will revisit this issue in an appro
    priate case—maybe even this one”). This Court has a duty
    to defend the integrity of its precedents, and we should
    grant certiorari to affirm that Lopez provides the proper
    framework for a Commerce Clause analysis of this type.2
    Further, the lower courts’ reading of Scarborough, by
    trumping the Lopez framework, could very well remove
    any limit on the commerce power. The Ninth Circuit’s
    interpretation of Scarborough seems to permit Congress to
    regulate or ban possession of any item that has ever been
    offered for sale or crossed state lines. Congress arguably
    could outlaw “the theft of a Hershey kiss from a corner
    store in Youngstown, Ohio, by a neighborhood juvenile on
    the basis that the candy once traveled . . . to the store from
    Hershey, Pennsylvania.” United States v. Bishop, 
    66 F. 3d 569
    , 596 (CA3 1995) (Becker, J., concurring in part and
    dissenting in part). The Government actually conceded at
    oral argument in the Ninth Circuit that Congress could
    ban possession of french fries that have been offered for
    sale in interstate commerce.
    Such an expansion of federal authority would trespass
    on traditional state police powers. See Morrison, 
    529 U. S., at 618
    ; Lopez, 
    514 U. S., at 566
    ; 
    id., at 584
     (THOMAS,
    ——————
    2 I adhere to my previously stated views on the proper scope of the
    Commerce Clause. See United States v. Lopez, 
    514 U. S. 549
    , 585
    (1995) (concurring opinion); United States v. Morrison, 
    529 U. S. 598
    ,
    627 (2000) (same); Gonzales v. Raich, 
    545 U. S. 1
    , 57 (2005) (dissenting
    opinion).
    Cite as: 562 U. S. ____ (2011)                   7
    THOMAS, J., dissenting
    J., concurring) (“[W]e always have rejected readings of the
    Commerce Clause and the scope of federal power that
    would permit Congress to exercise a police power . . .”
    (emphasis in original)). Before Congress enacted §931, the
    majority of States already had employed their police pow
    ers to address body armor and its use or possession by
    criminals. The States’ different regimes range from laws
    requiring sales of body armor to be face-to-face, to laws
    increasing sentences for criminals who commit certain
    crimes with weapons and body armor, to no regulation at
    all.3 Cf. Lopez, supra, at 581 (KENNEDY, J., concurring)
    (noting that more than 40 States had already outlawed
    gun possession at or near schools, and observing that “the
    reserved powers of the States are sufficient to enact those
    measures”).
    *    *     *
    Fifteen years ago in Lopez, we took a significant step
    toward reaffirming this Court’s commitment to proper
    constitutional limits on Congress’ commerce power. If the
    ——————
    3 At  least 31 States have some form of body armor regulation. For
    instance, Maryland makes it a crime to wear body armor while commit
    ting certain crimes, Md. Crim. Law Code Ann. §4–106 (Lexis Supp.
    2010), and also prohibits individuals who have been convicted of crimes
    of violence or drug crimes from possessing, owning, or using body
    armor, although individuals may be exempted through a permit sys
    tem. §4–107 (Lexis 2002). Virginia makes it a Class 4 felony to wear
    body armor while possessing a knife or firearm and committing a drug
    or violence offense. 
    Va. Code Ann. §18.2
    –287.2 (Lexis 2009). North
    Carolina, by comparison, enhances all felony offenses by one class level
    if the offender wears or possesses body armor during the commission of
    the felony. N. C. Gen. Stat. Ann. §15A–1340.16C (Lexis 2009). The
    States also define “body armor” in many different ways. See M.
    Puckett, Body Armor: A Survey of State & Federal Law (2d ed. 2004).
    Montana, Hawaii, Alaska, Maine, Nebraska, and Rhode Island, among
    others, have elected not to regulate body armor at all. See United
    States v. Patton, 
    451 F. 3d 615
    , 631, n. 7 (CA10 2006) (categorizing the
    various state schemes).
    8              ALDERMAN v. UNITED STATES
    THOMAS, J., dissenting
    Lopez framework is to have any ongoing vitality, it is up to
    this Court to prevent it from being undermined by a 1977
    precedent that does not squarely address the constitu
    tional issue. Lower courts have recognized this problem
    and asked us to grant certiorari. I would do so.