The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I catch up with opinions from the end of the term, I finally came to U.S. v. Taylor. This case considers whether attempted Hobbs Act robbery qualifies as a "crime of violence." Justice Gorsuch's majority opinion offered this colorful hypothetical:
A hypothetical helps illustrate the point. Suppose Adam tells a friend that he is planning to rob a particular store on a particular date. He then sets about researching the business's security measures, layout, and the time of day when its cash registers are at their fullest. He buys a ski mask, plots his escape route, and recruits his brother to drive the getaway car. Finally, he drafts a note—"Your money or your life"—that he plans to pass to the cashier. The note is a bluff, but Adam hopes its implication that he is armed and dangerous will elicit a compliant response. When the day finally comes and Adam crosses the threshold into the store, the police immediately arrest him. It turns out Adam's friend tipped them off.
Gorsuch returns to the hypothetical later in the opinion:
Of course, threats can be communicated verbally or nonverbally—pointing a gun at a cashier conveys a threat no less effectively than passing a note reading "your money or your life." But one way or another, some form of communication is usually required.
"Your money or your life!" This line should sound familiar. It featured prominently in NFIB v. Sebelius. I described the oral argument in Unprecedented:
To illustrate that the Medicaid grant was coercive, Justice Scalia harkened back to "the old Jack Benny thing, 'your money or your life.'" The "your money or your life" bit came from a classic episode of The Jack Benny Show, first aired on March 28, 1948—exactly sixty-four years to the day of the Medicaid oral arguments. (I'll assume that Scalia the Originalist knew this.) During the sketch, Jack Benny is approached by a mugger who demands, "Don't make a move, this is a stickup. Now, come on. Your money or your life?" With a gun pointed at him, Benny pauses for several seconds. The studio audience erupts in laughter. The mugger, growing impatient, demands, "Look, bud! I said, your money or your life!" Benny, with his legendary timing, responds, "I'm thinking it over!"
Scalia mused that even though the mugger provided Benny with a choice, there really was no choice. Of course he would hand over the money. Similarly, Scalia reasoned, although the ACA ostensibly gave states the choice of whether to accept the new money, the failure to accept that funding would result in the death of their preexisting Medicaid programs. To Scalia, the states bringing suit after being mugged by the federal leviathan was no different than Jack Benny being robbed by a common criminal. The states could either take the money or give up their lives—that is, their sovereignty as states. The federal government was not a cooperative partner, but a despotic outlaw.
Continuing his own stand-up routine, Justice Scalia added, "You can't refuse your money or your life. But your life or your wife's, I could refuse that one."
Chief Justice Roberts, who did not look amused, said, "Let's leave the wife out of this." Justice Sotomayor attempted to join in on the fun. Referring to Clement's wife, she warned that "Mr. Clement, he's not going home tonight." Sotomayor's joke fell flat. (After the silent Justice Thomas, Sotomayor usually garners the fewest laugh lines at the Supreme Court.) Clement began saying something about "Ms. Clement," but was interrupted again by Justice Scalia. The chief justice, who at this point was visibly displeased, cut things short. A dour-looking Roberts exclaimed, "That's enough frivolity for a while."
The reference continued during Solicitor General Verrilli's argument:
Roberts, even more engaged, continued. Evoking the image of Clint Eastwood as Dirty Harry, Roberts declared, "Of course no state is going to say, 'Okay, go ahead, make my day, take it away.'" An uncomfortable laughter trickled out. Roberts pursued the point further. The states, he said, are "going to give in." Then Justice Breyer joined the pile-on, sharply asking, "Has the secretary gone around threatening people that we will cut off totally unrelated funds. What is the situation?" Again, the solicitor general refused to answer that question. "I don't think it would be responsible of me to commit that the secretary would exercise the discretion uniformly in one way or another."
Before he could even finish his sentence, Chief Justice Roberts interrupted him. Sticking with the Wild West imagery, Roberts said that Verrilli's response to the "your money or your life" analogy was, "There's no evidence that anyone has ever been shot." The chief justice continued: "Well, it's because you have to give up your wallet. You don't have a choice."
Ultimately, Chief Justice Roberts used the line in Part IV.A of his opinion, which was joined by Justices Breyer and Kagan. Footnote 12 provides:
Justice GINSBURG observes that state Medicaid spending will increase by only 0.8 percent after the expansion. Post, at 2632. That not only ignores increased state administrative expenses, but also assumes that the Federal Government will continue to fund the expansion at the current statutorily specified levels. It is not unheard of, however, for the Federal Government to increase requirements in such a manner as to impose unfunded mandates on the States. More importantly, the size of the new financial burden imposed on a State is irrelevant in analyzing whether the State has been coerced into accepting that burden. "Your money or your life" is a coercive proposition, whether you have a single dollar in your pocket or $500.
All things considered, Gorsuch's hypothetical has some similarities to the attempted assassination of Justice Kavanaugh. Did the defendant commit the necessary "substantial step"? Gorsuch explained:
There is little question the government could win a lawful conviction against Adam for attempted Hobbs Act robbery. After all, he intended to take property against the cashier's will by threat of force, and his actions constituted a substantial step toward that goal. At the same time, this example helps show why attempted Hobbs Act robbery does not qualify as a crime of violence under the elements clause.Adam did not "use" physical force. He did not "attempt" to use such force—his note was a bluff and never delivered. And he never even got to the point of threatening the use of force against anyone or anything. He may have intended and attempted to do just that, but he failed. Simply put, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.
Later, Gorsuch writes:
Individuals like our foiled robber who are arrested before they can threaten anyone may be convicted too.
Eugene wrote about the criminal law issues with the abandonment doctrine here.