Conservatives should be wary of supporting a federal prosecution like this.
Conservatives should be wary of supporting a federal prosecution like this.
O n January 18, roughly 30 protesters disrupted a service at Cities Church in St. Paul, Minn., to protest ICE enforcement, believing that the pastor was an ICE official. Multiple individuals are facing federal charges for this protest.
Interrupting a church service is deplorable and criminal — at minimum, the protesters should face disorderly conduct and trespassing charges. Contrary to Don Lemon’s now infamous comments, no First Amendment right exists to disrupt church services or protest on private property without permission.
But Minnesota prosecutors won’t act, choosing instead to leave the question to federal authorities. This raises a critical question: Do the feds really have this power?
Conservatives should be wary of supporting a federal prosecution like this, which relies on an expansive reading of the Constitution’s commerce clause. If Congress can criminalize local, noneconomic activities like church disruptions, then “the federal government is no longer one of limited and enumerated powers,” as Supreme Court Justice Clarence Thomas has warned. Regardless of the shamefulness of the underlying criminal conduct, we should all be concerned about a federal government evading limits imposed by our Constitution.
Federal prosecutors charged the church protesters under two federal laws. Section 241 criminalizes conspiracies to deprive individuals of any right secured by the Constitution or laws of the United States, and Section 248 is the Freedom of Access to Clinic Entrances, or FACE, Act. Although originally designed to protect abortion clinics, the FACE Act now prohibits anyone from interfering with the exercise of religious freedom at a place of worship.
The defendants will likely be convicted if the video evidence holds. But does Congress have authority to regulate this behavior in the first place?
As Chief Justice William Rehnquist wrote in United States v. Morrison, “Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” So let’s examine the possible constitutional authorities. There are three possible candidates to support a prosecution under Section 241 and 248 — the 13th Amendment, the 14th Amendment, and the commerce clause — but each has a significant limitation as a source of authority for a church-disruption prosecution under federal law.
Section 241 is authorized at least in part by the 13th Amendment. In the wake of the Civil War, Congress passed several acts to protect the civil rights of the newly freed slaves, including an earlier version of Section 241, passed as part of the Enforcement Act of 1870, or the “Ku Klux Klan Act.” The Supreme Court has upheld many applications of these statutes, reasoning that Congress may pass laws not only to extinguish slavery but also to remove any “badges” or “incidents” of slavery. The Court has applied it to vandalism against religious property but only for discrimination based on ancestry or ethnicity.
Although expansive, the 13th Amendment’s power to eliminate “badges” and “incidents” of slavery reaches only “identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” While interfering with the exercise of religious freedom is a critical right of citizenship, Congress may only protect that right under the 13th Amendment if tied to some act of racial discrimination (such as protesting churches based on race). No evidence like this exists in the St. Paul church disruption.
Section 241 may also be partially authorized by the 14th Amendment, which does protect religious freedom. Yet this amendment only reaches the acts of government officials through the “state action” doctrine. Congress cannot criminalize purely private conduct under the 14th Amendment. In an 1883 case, the Supreme Court held that Section 241’s predecessor could not be applied to private defendants.
Finally, both Sections 241 and 248 may be authorized by the commerce clause. Under this expansive power, Congress may “regulate” all sorts of activities that directly or indirectly impact interstate commerce. Earlier decisions have upheld Section 248 prosecutions against protesters blocking access to abortion clinics because abortions involve commerce (payment for services) and often interstate travel.
Churches, on the other hand, are a much tougher case. Under Supreme Court precedent, purely local activity — such as the possession of a gun near a school or sexual assault — cannot be criminally regulated by Congress. The Supreme Court has never held that Congress can regulate noneconomic activity under the commerce clause, even if the activity substantially affects interstate commerce. Moreover, when passing Section 248, Congress never found that church disruptions interfere with or impact interstate commerce.
The prosecution of church disrupters in St. Paul is novel. Justice Department official Jesus Osete said this is “the first time in U.S. history” Sections 241 and 248 have formed the basis of a charge for disrupting a church service. In the only case grappling with the issue of church disruptions under Section 248, a federal court held that churches and religion substantially affect interstate commerce, “accounting for 1 percent of the gross national product of the United States.”
The decision is tough to defend: The court did not consider whether the specific act at issue (disrupting a church service) affected interstate commerce either individually or in the aggregate. How could it? In passing Section 248, Congress presented no findings about the aggregate effects of nationwide church disruptions on interstate commerce. Although the Second Circuit Court affirmed the case on appeal, Judge John M. Walker wrote separately to explain that church disruptions are “non-economic conduct that has at best a tenuous connection to interstate commerce.”
In short, there is scant legal support for the idea that church disruptions substantially affect interstate commerce, and there is absolutely no support for the idea that these protests are economic activities. The only way to use the commerce clause in this case is to claim that “religion” in general affects interstate commerce (it does), and criminalizing these protests somehow “regulates” that interstate commerce. That would be quite a stretch for a government of supposed limited powers.
Still, the Trump administration is all in on this prosecution. Vice President JD Vance recently said, “If you storm a church . . . we’re going to do everything we can to put you in prison.” That may be a righteous cause. But conservatives should remember that for decades, the movement has been pushing to rein in the commerce clause.
Justice Clarence Thomas has long railed against the abuse of the commerce clause, explaining that stretching federal jurisdiction to intrastate noneconomic activities, “if taken to its logical extreme, would give Congress a ‘police power’ over all aspects of American life,” and Congress could “regulate marriage, littering, or cruelty to animals.” In another case, Justice Thomas quipped, “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.”
That’s not a world anyone should want, especially conservatives dedicated to the principle of a limited federal government. So ponder this: If the federal government can criminalize a protest inside a church, then what else could Congress criminalize? The answer is everything, and that’s not an answer any conservative should want to hear.