Bird Call

When can Congress make a federal case?

When Frank Bird, a local abortion protester, crashed his van through the glass doors of a Planned Parenthood clinic in Houston last March, he was not exercising his First Amendment right to free speech. He was committing a reckless act of vandalism that could have injured or killed someone.

The constitutional question raised by Bird's case is not whether he should be punished for his crime; it's who should do the punishing. At stake is the distinction between national and state authority at the heart of our federalist system—a line that has been blurred so much that America's leading jurists have trouble making it out.

Bird was originally charged with felony criminal mischief under state law, but that charge was dropped after the U.S. Attorney's Office invoked the Federal Access to Clinic Entrances (FACE) Act. The 1994 law makes it a federal crime to interfere with reproductive health services through physical obstruction, vandalism, threats, or violence.

Bird already has served a year in prison under this law because of a 1994 incident in which he threatened an abortion provider and threw a bottle at his car. But last month U.S. District Judge Kenneth Hoyt dismissed the new FACE Act charge against Bird, concluding that the Constitution does not empower Congress to establish federal penalties for crimes like his.

The Justice Department, to the discomfort of abortion opponents who oppose the FACE Act and count Attorney General John Ashcroft as an ally, plans to to appeal Hoyt's ruling. It will argue that the law is a legitimate exercise of Congress's authority to "regulate Commerce…among the several States." If you're wondering what that has to do with driving a van into an abortion clinic, you're not alone.

According to the Senate version of the bill that became the FACE Act, Congress was responding to "an interstate campaign" aimed at disrupting "reproductive health services across the nation." Yet the law applies to purely local disruptions as well. As Hoyt observed, Frank Bird's crime hardly amounted to "a campaign of violence aimed at [abortion] providers across the nation."

The Senate also noted that abortion clinics buy equipment and supplies from other states, and that women prevented from getting abortions in one state might travel to clinics in other states. Lame as that justification might seem, it has been accepted by half a dozen federal appeals courts, including the 5th Circuit, which upheld Bird's first FACE Act conviction in 1997.

Hoyt is hoping the 5th Circuit will reconsider its position in light of a 2000 Supreme Court decision that overturned part of the Violence Against Women Act (VAWA). The Court ruled that Congress overstepped its authority under the Commerce Clause by establishing a federal civil remedy for victims of "gender-motivated violence."

"The Constitution requires a distinction between what is truly national and what is truly local," the Court said, "and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct's aggregate effect on interstate commerce."

The VAWA decision built on U.S. v. Lopez, a 1995 ruling in which the Supreme Court agreed with the 5th Circuit that the Commerce Clause did not authorize Congress to ban gun possession in school zones. Lopez was a marked departure from a series of decisions beginning in the 1930s that interpreted the Commerce Cause broadly enough to cover pretty much anything Congress decided to do.

Yet the Supreme Court still has not repudiated the doctrine that Congress may regulate intrastate, noncommercial activity that has a "substantial effect" on interstate commerce. Since substantial effects are in the eye of the beholder, this test leads to unpredictable, puzzling distinctions.

It's hard to understand, for example, how the 5th Circuit, which overturned the Gun-Free School Zones Act in 1993, could uphold the FACE Act four years later. The legitimacy of both laws hinges on tenuous, indirect connections between local actions and interstate commerce.

There is no subject on which Congress might try to legislate for which it could not posit such a connection. As Justice Clarence Thomas noted in his concurring opinion in Lopez, the "substantial effect" test, "if taken to its logical extreme, would give Congress a 'police power' over all aspects of American life."