The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Department of Justice recently raised some eyebrows by announcing that it wouldn't appeal a ruling striking down 18 USC § 116, the federal ban on female genital mutilation (FGM). The Solicitor General's explanatory letter "condemns this practice in the strongest possible terms." But it also argues that the FGM ban lacks a sufficient connection to Congress's powers under the Constitution, and it suggests that Congress enact a new ban with a clear jurisdictional nexus—for example, forbidding conduct that takes place within D.C. or federal territories, or conduct using the channels and instrumentalities of interstate commerce.
This is a perennial problem for Congress, which often writes broad legislation without too much attention to the limits on its powers. So maybe Congress should supply a nexus, not just for the FGM statute, but for every statute at once.
Imagine a Jurisdictional Nexus Act, added to Title 1, Chapter 2 of the U.S. Code, that says something like the following:
Sec. 115. Jurisdictional Nexus
A criminal offense established by act of Congress that would otherwise exceed the powers of Congress in at least one of its applications shall be construed, with respect to such applications, to extend only to offenses committed by means of at least one act or omission of any person—
(a) within the District of Columbia, any territory or possession of the United States, or the special maritime and territorial jurisdiction of the United States;
(b) involving the use of a means, channel, facility, or instrumentality of, or occurring in or otherwise affecting, interstate or foreign commerce; or
(c) who is, or to the injury of a person who is, protected under Sections 351, 1114, or 1751 of Title 18 [e.g., federal officers and employees, including the uniformed services—ed.].
This is a back-of-the-napkin version, but a real statute like this would have several advantages:
1. As a background rule of construction, along with much of the rest of Title 1, the statute can do its job even when a future Congress forgets about it. Like other legal rules of interpretation—RFRA, the Dictionary Act, the general savings statute (1 U.S.C. § 109), and so on—it silently amends past statutes and changes the effect of future ones, until a future Congress indicates otherwise. So Congress can keep on passing bills in general terms, without putting quite so much pressure on the courts to uphold them (or else to let bad actors go free).
2. The statute would only matter for offenses that fail for lack of constitutional power, not offenses that directly abridge constitutional rights. The key language here is the word "otherwise." A law banning Methodism might exceed the powers of Congress ("Congress shall make no law…"), but limiting it to Methodists in D.C. and the territories wouldn't help. The offense wouldn't "otherwise exceed" those powers, as compared to a world with the Nexus Act in place. So the Nexus Act would leave the Methodism law to fail on its own.
3. The statute would leave constitutional applications of existing statutes alone. Suppose that a statute can be applied in fifty-three ways, fifty of which are constitutionally fine, but three of which would exceed the powers of Congress. Using the Nexus Act to limit the whole statute would be inappropriate, especially because some of those fifty ways might be justified by other powers not listed above (the patent power, the counterfeiting power, etc.). Instead, the Act deals specifically with a statute's otherwise-unconstitutional applications. It offers a rule of construction only "with respect to such applications," so we don't have to spend much time thinking about the constitutional ones.
4. Although the statute might have the effect of expanding the reach of the criminal law (preserving offenses that would otherwise be struck down), it doesn't actually criminalize more conduct than Congress intended to reach. The statute acts only by limiting the scope of a criminal law, providing that the government can secure certain convictions only if it goes on to prove various additional elements. So it helps achieve Congress's goals, while also fitting well with a preference for lenity.
5. When the constitutional issues are murky, a statute like this still offers an easy procedural means of satisfying its requirements. Suppose we're not sure whether a given prosecution under a given statute is constitutional. If it is, everything proceeds as normal. If it isn't, the Nexus Act applies, and additional elements are needed. So whenever the government expects a constitutional challenge, it can simply draft the indictment to include one of the listed elements (which usually aren't very hard to prove).
This would have the effect of curing any error based on the absence of congressional power. When the court draws up the jury instructions, the defendant would have a choice: (1) to insist on the jury's finding that the nexus exists, or (2) to waive the issue by asking for the instructions to leave the nexus out. In the first case, if the jury convicts, we don't need to decide whether a nexus-less prosecution could have succeeded on its own; the government will already have proved any additional facts it might need. And in the latter case, the defendant would hardly be heard to complain of a constitutional violation, having just won a ruling that the charged conduct was constitutionally punishable as written and that no additional elements needed to be proved. Only if the government couldn't prove the additional nexus—or didn't want to try—would we have to consider the hard constitutional questions.
6. By setting out a list of individual jurisdictional hooks, instead of relying on all of Congress's powers all at once, the statute avoids a potential vagueness challenge. By contrast, imagine a "Minimal Nexus Act":
Any criminal statute that violates the Constitution shall be narrowly construed until it doesn't.
Defendants faced with a general statute like that would be entirely in the dark as to what portions of their conduct were actually criminal, or what power might some day be pulled out of a hat to justify their prosecution. (The Treaty Clause? The Twenty-Sixth Amendment enforcement power?) Instead, the grounds listed above cover a very large proportion of the categories the federal government would actually want to go after, without leaving us guessing about the scope of our criminal code.
7. For the same reasons, the statute avoids what might otherwise be a complex severability analysis. To use an example that Will Baude and I have batted around, suppose that Congress just chose to ban shoes, giving no jurisdictional nexus or even any explanation. ("It is hereby unlawful to possess shoes.") Assuming that the statute is severable, how exactly would you sever it? Does it apply to shoes moving in interstate commerce or through the U.S. mails, shoes worn on military bases or post offices or national parks, shoes possessed by federal officers or employees or contractors or by members of the unorganized militia or by 501(c)(3) nonprofits or by persons applying for Medicare reimbursements or federal research funds or federally guaranteed student loans…?
This might have been one reason why the Court in Lopez just struck down the relevant provision of the Gun-Free School Zones Act instead of searching, Salerno-like, for some grounds on which it might have been constitutionally applied. (For example, on the "self-insurance" argument well-beloved of the ACA's defenders, perhaps Lopez was engaged in the self-provision of security services, for which he might alternatively have contracted on the interstate market.) As Scott Keller and Misha Tseytlin have discussed, the Court hasn't always been clear about when it will allow a facial challenge—or when it thinks an as-applied challenge is required, with other applications of the statute to be preserved. The Nexus Act does some of this work for us, providing a safe harbor for certain applications even after a successful constitutional challenge to others.
8. Finally, a Nexus Act would allow for focused debate on the scope of Congress's powers and the appropriate range of federal criminal law. For those who take, say, a somewhat narrower view of the Commerce Power, one problem in implementing this view is the sheer number of statutes that might need to be revised if it were correct. Having a Nexus Act in place would allow those statutes to "fail gracefully," diminishing the legal turmoil from the courts' adopting a different view.
A Nexus Act would also help members of Congress to act without waiting for the courts to go first. If Congress thinks that a criminal offense exceeds its lawful powers, it can always repeal or amend it. But instead of having to dig through the code and amend thousands of statutes piecemeal, members of Congress could simply amend the Nexus Act, which would automatically narrow the scope of a variety of statutes. And in debating over the Nexus Act, they might have to articulate their views of the Constitution—which, one might think, is already part of their job.
UPDATE 4/25: One more advantage! A statute like this, if passed, might eventually be used as a standard off-the-shelf cross-reference in other statutes. Right now, criminal laws often make reference to the "special maritime and territorial jurisdiction of the United States," a term defined in 18 U.S.C. § 7 to include a variety of strange places: forts and arsenals, U.S.-flagged vessels on the Great Lakes, guano islands, American spacecraft (but only while in flight), etc.
Once passed, the Nexus Act might serve a similar purpose. Statutes might be written to punish various types of conduct "in the circumstances described in section 115 of Title 1, U.S. Code." That'd make it yet easier for Congress to fine-tune its approach to constitutional power, automatically propagating any changes to the Nexus Act to a variety of substantive statutes.