On Monday the Supreme Court decided Taylor v. United States, a case addressing proof of jurisdiction under the Commerce Clause. A 7-1 majority, with Justice Alito writing for the Court, ruled that the government is relieved of proving that a specific robbery affects interstate commerce so long as it proves that the robbery was intended to affect drug dealing, which, as the Court held in Gonzales v. Raich (2005), is within Congress’s power to regulate. Justice Thomas was the lone dissenter.
Front and center is the Hobbs Act, which criminalizes robbery and extortion that “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” The Act, which the Department of Justice says was originally passed to attack racketeering in labor-management disputes, constitutes the broadest possible federalization of robbery and extortion that Congress could legislate under its Commerce Clause powers. For this reason, Hobbs Act cases often present interesting questions about the precise scope of federal jurisdiction over particular robberies and extortion. To ensure the success of prosecutions under that statute, the Department of Justice restricts prosecutors, “as a general rule,” to charging Hobbs Act robbery only “in instances involving organized crime, gang activity, or wide-ranging schemes,” which presumably have the strongest relationship to interstate commerce.
The first question before the court, then, is whether the indicted robbery fits within Congress’s Commerce Clause authority, and therefore the Hobbs Act. The majority opinion takes Raich as settled law. Justice Alito writes (citations omitted):
The case now before us requires no more than that we graft our holding in Raich onto the commerce element of the Hobbs Act. The Hobbs Act criminalizes robberies affecting “commerce over which the United States has jurisdiction.” Under Raich, the market for marijuana, including its intrastate aspects, is “commerce over which the United States has jurisdiction.” It therefore follows as a simple matter of logic that a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction.
In keeping with his well-known indifference to stare decisis on constitutional issues, Justice Thomas’s dissent does not accept Raich as given. Instead, he lays out a more concise version of the originalist argument he raised in his Raich dissent. He would construe the Hobbs Act more narrowly, requiring proof in every case that the particular act falls within the powers of Congress (citations and internal quotations omitted):
At the founding, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes. The Commerce Clause, as originally understood, thus empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Robbery is not buying, it is not selling, and it cannot plausibly be described as a commercial transaction (“trade or exchange for value”).  Because Congress has no freestanding power to punish robbery and because robbery is not itself “Commerce,” Congress may prohibit and punish robbery only to the extent that doing so is “necessary and proper for carrying into Execution” Congress’ power to regulate commerce. To be “necessary,” Congress’ prohibition of robbery must be plainly adapted to regulating interstate commerce. This means that Congress’ robbery prohibition must have an obvious, simple, and direct relation with the regulation of interstate commerce. And for Congress’ robbery prohibition to be “proper,” it cannot be prohibited by the Constitution or inconsistent with its letter and spirit.
Justice Thomas rejects the categorical approach endorsed in Raich, since “[s]weeping in robberies that do not affect interstate commerce comes too close to conferring on Congress a general police power over the Nation.”
On the second question, the standard of proof, the justices’ views track their attitudes toward Raich. The majority opinion adopts Raich’s categorical approach, holding that jurisdiction doesn’t require any more than proof “beyond reasonable doubt that the robber targeted a marijuana dealer’s drugs or illegal proceeds[.]” Since the defendant was trying to rob his victim of an illegal marijuana stash, that element was easily satisfied in this case.
Justice Thomas’s approach, by contrast, would have required proof that the particular robbery affected one of the channels of interstate commerce, instrumentalities of commerce, or persons or things in interstate commerce. These robberies were purely intrastate, so he would have reversed the convictions.
Justice Thomas’s dissent also worries that the majority has effectively expanded Raich. As he points out, there is asymmetry between the substantial-effects rationale of Raich, which held that Congress had a rational basis for determining that marijuana cultivation and possession affected interstate commerce, and the beyond-reasonable-doubt burden in criminal prosecutions. Justice Alito would presumably counter that no mismatch arose in this case, since the victim in this case was proven to be commercially distributing illegal marijuana, not merely cultivating and possessing it for personal use.
It’s not clear at this point whether Taylor is just an echo of Raich or a harbinger of future Commerce Clause cases. Justice Alito hints obliquely that he’s not a fan of Raich, but doesn’t go much beyond that. We therefore have little insight into whether anyone other than Justice Thomas would be willing to overturn it.
In the end, I suspect that Taylor is best understood as an effort to tie up a loose end from Raich, but it’s always good to have Justice Thomas reminding us that the Commerce Clause doesn’t mean whatever the courts say it does.