Sunday, May 17, 2009

Case o' The Week: Like Nigel's "Up to 11" -- Alderman and the "Fourth Category" Of Commerce Clause Power

Congress criminalized the possession of body armor by "violent felons." See 18 USC § 931. Within which of Supreme Court's three categories of federal Commerce Clause power does this statute fall?

Trick question -- turns out that the body armor statute is authorized by that that elusive "fourth" category of Commerce Clause power, explains the Ninth in a disappointing decision (sparking a powerful Paez dissent).
United States v. Alderman, __ F.3d __, 2009 WL 1298056 (May 12, 2009), decision available here.

Players: Decision by Judge McKeown, joined by Judge B. Fletcher. Dissent by Judge Paez. Hard-fought case by Seattle AFPDs Brian Tsuchida and Vicki Lai.

Facts: Alderman was charged with being a “violent felon” in possession of body armor, in violation of 18 USC § 931 and 921(a)(35). Id. at *1. In a conditional plea, he admitted the vest had crossed state lines but preserved a challenge to the constitutionality of the statute. Id.

Issue(s): “This case of first impression in the Ninth Circuit requires us to consider whether Congress has the authority under the Commerce Clause of the . . . Constitution . . . to criminalize the possession by a felon of body armor that has been sold or offered for sale in interstate commerce . . . . Put another way, the issue is whether the sale of body armor in interstate commerce creates a sufficient nexus between possession of the body armor and commerce to allow for federal regulation under Congress’s Commerce Clause authority.” Id. (internal quotations and citations omitted).

Held: “We conclude that we are bound by [pre-Lopez trilogy] precedent – absent the Supreme Court or our en banc court telling us otherwise – and that the felon-in-possession of body armor statute passes muster.” Id. at *1.

Of Note: In ‘77, the Supremes upheld the felon-in-possession statute against Commerce Clause attack in Scarborough. Since then, the Supreme Court delivered the Lopez trilogy, three cases that fundamentally re-define the scope of Congressional Commerce clause authority: Lopez (‘95), Morrison (‘00), and Raich (‘05).

Read Judge McKeown’s decision carefully, and it seems to concede that the body armor statute cannot survive after the Lopez trilogy. In reality, it appears that the real issue in this case is that old Agostini conundrum: when can a panel break from precedent when an intervening Supreme Court decision directly controls? See id. at *15 (Paez, J., dissenting).

Judge Paez has the better argument in his well-written dissent. Id. He persuasively questions how this statute can be saved by placing it in the “fourth category” of Commerce Clause power – when the Supremes have only identified three categories. Id. at *15. The true conservatives in the Ninth – those who believe in limited federal government and in “state’s rights” – should be siding with Paez and seeking en banc review of Alderman.

How to Use: As is her custom, Judge McKeown has written a balanced opinion that concedes the weaknesses of her argument and that notes the issue may turn out differently on en banc or Supreme Court review. Preserve the Commerce Clause challenge in body armor cases – the dust hasn’t settled on this issue.

Also, Las Vegas AFPD and appellate guru Jason Carr has flagged footnote three of Alderman, which appears to change the Ninth’s “notice of appeal” procedures. Most folks generally (broadly) refer to the conviction and final written judgment in a notice of appeal. In Alderman, however, Judge McKeown seems to imply that a failure to specify the specific motion or issue on the initial notice of appeal waives it. Id. at *1 n.3. Ninth Circuit Rule of Appellate Procedure 3(c)(1)(B) does state that the notice must “designate the judgment, order, or part thereof being appealed.” See rule here. Alderman may be a reminder to be more specific in initial notices to appeal.

For Further Reading: Justice Souter dissented from Lopez and Morrison. Will his Lefty replacement get fired up over the Commerce Clause?

She will not.

For an interesting article on the historical rise and fall of conservative efforts to limit Congressional power, see A. Christopher Bryant, The Third Death of Federal of Federalism, 17 CNLJLPP 101 (2007), abstract available here.

Body armor image from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Sunday, June 28, 2009 2:52:00 AM  

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