Commerce

Is a Religious House of Worship "Used in Interstate Commerce"?

A federal appeals court rejects an expansive reading of the federal arson law.

|The Volokh Conspiracy |

Several years ago, federal prosecutor indicted Robert Doggart for soliciting others to help destroy a mosque in upstate New York. Among the specific charges was solicitation to commit arson in violation of 18 U.S.C. § 844(i), for which he was convicted in federal court.

In United States v. Doggart, the U.S. Court of Appeals for the Sixth Circuit considered Doggart's appeal of his conviction for, among other things, exceeding the scope of the federal arson statute, which is limited to the destruction of buildings or property "used in" interstate commerce."

In an opinion by Judge Jeffrey Sutton, the Sixth Circuit found merit to this aspect of Doggart's appeal. From Judge Sutton's opinion:

Doggart objects to his conviction for solicitation to commit federal arson on the ground that the target of the crime—a mosque—is not "used in" interstate commerce or in any activity affecting interstate commerce. 18 U.S.C. §§ 373, 844(i). We agree.

The text of this criminal statute does not create a natural home for the attempted destruction of a mosque. The underlying arson statute says in relevant part: "Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned." 18 U.S.C. § 844(i). This encompassing grant of authority (to prosecute the arson of "any" building) comes with a broad limit on that authority (to do so only when the building is "used in interstate [commerce]" or "used … in an activity affecting interstate [commerce]").

By any conventional measure, these terms do not cover the attempted destruction of a local mosque or for that matter any house of worship. In everyday English, one does not think of a mosque that serves a 200-person local community as a building used in commerce, much less interstate commerce. There may be plenty of good reasons to prosecute Robert Doggart for his deranged plan. But the words of this statute are not one of them.

Precedent backs this up. Arson, the United States Supreme Court has made clear, is "a paradigmatic" state law crime, one usually best left to the States to prosecute. Jones v. United States, 529 U.S. 848, 858, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In an opinion by Justice Ginsburg, Jones determined that Congress did not exercise the full scope of its Commerce Clause powers in enacting § 844(i). Id. at 854–55, 120 S.Ct. 1904. The National Legislature's decision to cabin the arson statute's reach to buildings "used in" interstate commerce, the Court reasoned, reflected a decision to regulate less than Congress otherwise might have power to require. Id. It then construed the statute to apply only to the destruction of buildings with an "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Id. at 855, 120 S.Ct. 1904. Under that approach, Jones unanimously read § 844(i) not to cover the arson of a residence. Otherwise, the Court feared, the statute would transform "virtually every arson in the country [into] a federal offense." Id. at 859, 120 S.Ct. 1904; United States v. Laton, 352 F.3d 286, 303 (6th Cir. 2003) (Sutton, J., dissenting).

In holding that the federal arson statute does not cover private residences, the Court rejected several alleged connections between homes and interstate commerce. It did not suffice, the Court ruled, that an interstate bank lent the owners money to buy the home, that the building was insured by interstate companies, or that interstate energy companies kept the house warm. Jones, 529 U.S. at 852–57, 120 S.Ct. 1904. In each instance, the interstate activity was perceived as too fleeting and incidental to the conventional use of a home—as a shelter, a place to live, a place to raise a family. Id. at 855–56, 120 S.Ct. 1904. The same presumably would be true for other equally attenuated connections between private homes and interstate commerce: that each home is part of a large interstate commercial market in home buying and selling; that people often cross state lines to buy houses; that the materials to build residences often come from other States; or even that an unsentimental economist might characterize a family as a group of profit-maximizing individuals who live together as a way to keep expenses down.

Three canons of construction reinforced the Court's conclusion. One was the rule of lenity. Id. at 858, 120 S.Ct. 1904. This is a criminal statute after all. Another was the principle that, unless Congress speaks "clearly," the federal courts will not assume that it means to change the "federal-state balance in the prosecution of crimes." Id. (quotation omitted). Arson is a quintessential state law crime, and the power to regulate arson under interstate commerce includes the power to marginalize any local regulation of the topic (by creating higher federal sentences for the same crime) or to preempt it (by barring any local regulation of the topic). The third canon was that, "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." Id. at 857–58, 120 S.Ct. 1904 (quotation omitted). The Court relied on the "used in" qualifier to limit the reach of the statute to conventional uses of interstate commerce and to prevent the law from exceeding Congress's Commerce Clause authority by regulating any and all local arsons. All indicators of meaning considered, the Court ruled that one category of American buildings—private residences—is generally out of bounds when it comes to the federal arson statute.

The same is true, even more true, of houses of worship. Whether it's a church, a synagogue, or a mosque, they are no more "active[ly]" used for "commercial purposes" than residential homes are. Id. at 855, 120 S.Ct. 1904. A place of worship simply is not the kind of building traditionally used for commercial activities. The structures instead are associated with spiritual and local activities—a place of worship and a source of community and education for people of a shared faith. One could tie aspects of these buildings, we realize, to some commercial activities, just as one could do the same with respect to a family dwelling. Yes, the buildings are often insured. (Faith goes so far.) A house of worship must comply with governmental building and safety codes that apply to commercial buildings. (Give to Caesar what is Caesar's.) The faith community usually employs and pays the individuals who work in the buildings. (Even servants of God have bills to pay.) And these expenses and the expenses to construct the buildings themselves are paid for through tithes and other contributions—usually money earned through commercial, often interstate commercial, activities. But just as these and comparable activities did not suffice to treat residences as buildings used in interstate commerce, they do not suffice to transform houses of worship into buildings used in interstate commerce. That a "building is a church" or house of worship of any kind, "without more," does not cut it. . . .

Upon reversing parts of Doggart's conviction, the Court remanded Doggart's case to the district court for resentencing.

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  1. Well, if God is everywhere, then doesn’t it–by definition–cross state lines? (Not really, of course. Seems like a sensible decision here.)

    1. Yes. But it’s not commerce. At least not in physical currencies.

      Now, if you wanted to argue it’s commerce in peoples’ immortal souls, you may have an argument there. That might be outside what the founders may have intended though.

      1. What was that plate that was passed to collect money for god in exchange for saving your soul for then?

      2. “Yes. But it’s not commerce. At least not in physical currencies.”

        Sometimes it is. There’s good money in the God business.

  2. This attempt to shoehorn clearly intrastate activity into interstate commerce via a convoluted gossamer thread reminds me of the Amish beard cutting brouhaha.
    I believe Jacob Sullum wrote about it here in reason. The prosecutors argued that the shears used to cut the victims beard had been purchased via interstate commerce, or some similar argument

    1. And the worst part of it is this gem:

      “The National Legislature’s decision to cabin the arson statute’s reach to buildings “used in” interstate commerce, the Court reasoned, reflected a decision to regulate less than Congress otherwise might have power to require.”

      The joke here is that the courts would actually be willing to allow the law with even less of a nexus in interstate commerce.

      The interstate commerce clause gives Congress authority to regulate commerce, which is interstate. (Or crosses other specified boundaries.) The commerce itself, not all things that have been involved in, or might hypothetically effect such commerce.

      They’ve transformed the interstate commerce clause into the general police power the federal government deliberately wasn’t given.

      1. Yes, restricting it to buildings in interstate commerce was the Master holding his hand for reasons, and not because they were trying to get away with something squirrely and that was the only way they could conceivably go even that far.

        Similarly they exempt religion from taxation because they are nice, and not because they would get crushed in court if it interfered with free exercise.

    2. Crossing state lines to commit arson is obviously interstate activity.

      But that’s not the jurisdictional hook Congress used.

  3. An obvious basis for an end run around Roe v Wade is simply to recite long standing cases sharply distinguishing interstate commercial from private matters, and holding that what is interstate commerce is definitely not private and vice versa.

    While abortion may in principle be a private matter, abortion affecting interstate commerce – for example, using materials that previously passed in interstate commerce – is not. Same with contraceptives.

    The expansiveness of current interstate commerce doctrine, and the long-standing idea that the subject of interstate commerce is inherently public and not private, could be used to make privacy an effective nullify.

    1. It’s a fundamental mistake to treat these things as actual rationales, rather than the sophistries they are. The “interstate commerce” fraud is just an excuse to grant Congress general police power over everything. But since they don’t want Congress to be able to regulate abortion, abortion will auto-magically not be subject to the same “reasoning”.

      1. I have little problem with living constitutionalism discovering new personal rights that would not have been considered so originally. The problem is the same process grows, rather than shrinks, government power in other areas. Increasing rights is good and keeping with the original philosophy. Increasing power to control and tax things is exactly the opposite.

        1. All without amendment, that is.

        2. It’s perfectly legitimate for the courts to uphold unenumerated rights, provided they’re traditional rights dating back to the founding, which just failed to be enumerated because the Bill of Rights couldn’t be an exhaustive list. That’s the whole point of the 9th amendment: An existing right wouldn’t be extinguished for failure to include it in the Bill of Rights.

          But inventing new rights with no historical basis usually involves contracting existing rights, because the courts are usually inventing positive rights, not negative.

          1. “It’s perfectly legitimate for the courts to uphold unenumerated rights, provided they’re traditional rights dating back to the founding,”

            It’s also perfectly legit for the courts to uphold constitutional rights that were not granted by the Founders. Say, the right to not have your cell phone searched at the border.

        3. Or extending a few definitions, such as “press” including the internet. But it’s all too easy to extend anything and everything in every direction when the goal is simply increased power.

        4. One man’s “grows” is another man’s “shrinks.” The only way to grant a gay man a “right” to a “wedding” cake is to take away the right of a baker to not bake it.

          1. ” The only way to grant a gay man a “right” to a “wedding” cake is to take away the right of a baker to not bake it.”

            A “baker” isn’t a “baker” if he (or she, of course) does not “bake”. So you need to work out your definitions.
            Nobody who isn’t a “baker” FOR HIRE is ever “forced” to bake cakes.

            1. Becoming a baker for hire is not consent to bake whatever anyone wants, whenever anyone wants.

        5. I doubt the framers spent much time thinking about either abortion or gay marriage, and had the rationale behind Roe and Obergefell been explained to them, I don’t think we can categorically say that at least some of them might not have found it persuasive. But regardless, I still fail to see why our constitutional jurisprudence should be linked to the views of people who have been dead for 200 years. It’s hard to imagine a group of people whose views would be more thoroughly out of touch with modern American thought than the framers. We don’t take seriously the views of James Madison’s physicians on how modern medicine should be practiced, so why should Madison’s views on polity carry any more weight?

          1. And there’s the rub. Ultimately, the left’s view on the Constitution can be reduced to “It was just written by old, racist, white men anyway.”

            In any case, I think we can say quite confidently they would not have found Obergefell or Roe persuasive.

            1. The point isn’t that they were old, racist and white (though most of them probably were). The point is that their views are totally out of sync with current American values. It’s as if an American Protestant church were taking its cues from a middle ages pope.

              1. There’s a bit of “appeal to authority” fallacy at work. The Founders were the Founders, therefore their opinions on how American society should operate are better than others. Which is BS. They did a pretty good job of building a framework for us, but THEIR ideas of how we should do it NOW shouldn’t outweigh OUR ideas of how we should do it NOW.

    2. “While abortion may in principle be a private matter, abortion affecting interstate commerce – for example, using materials that previously passed in interstate commerce – is not. Same with contraceptives.”

      Your problem is one of apples and pomegranates. Congress’ power over intrastate matters is limited, but the Constitution’s is not.

  4. I’m fine with letting the states prosecute garden variety crimes like arson. That said, I don’t see how a mosque isn’t used in interstate commerce. Do they take offerings for Islamic charities in other states or countries? Do they purchase and use educational materials that were produced in other states or countries? Do they pay federal withholding taxes on the salaries of their employees? Do they organize mission trips to proseletyze people in other places? Under traditional Interstate Commerce analysis, OF COURSE religious buildings are used in interstate commerce. Whether, as a matter of policy, that stuff should be considered interstate commerce is another question.

    1. By that ridiculous standard, anything is interstate commerce. Even jaywalking, if you were wearing sneakers made elsewhere.

      1. The standard may or may not be ridiculous but it’s the standard we’ve had since Wickard v. Fillburn. Justice Breyer admitted once during oral argument that he couldn’t think of anything that wouldn’t be interstate commerce.

        1. Something that you couldn’t sell at any price.

          1. You cannot sell marijuana legally at any price yet the USSC upheld the Controlled Substances Act under the Commerce Clause.

  5. A church is a business, whether selling entertainment, advice, Starbucks beverages, babysitting, medical miracles, or use of a wedding venue. America has made it (so far) a tax-exempt business, but it is nonetheless a business.

    Not that there’s anything wrong with that.

    1. I agree, the minister makes a living. We also have non-profits with CEOs and principals making big bucks. Both those ministers are non-profit principals do pay income taxes. Which brings me to my favorite part of the article: some of judge Sutton’s opinion:

      “Yes, the buildings are often insured. (Faith goes so far.) A house of worship must comply with governmental building and safety codes that apply to commercial buildings. (Give to Caesar what is Caesar’s.) The faith community usually employs and pays the individuals who work in the buildings. (Even servants of God have bills to pay.)”

      It’s nice to see a judge with a sense of humor that also respects the Constitution and limits on government power, even to the benefit of some reprobate like Doggart who thinks burning a mosque will achieve anything positive.

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