1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-7-1995

United States v Bishop

Precedential or Non-Precedential:

Docket 94-5321

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Recommended Citation

"United States v Bishop" (1995). 1995 Decisions. Paper 245.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

Nos. 94-5321 and 94-5387 

___________ 

UNITED STATES OF AMERICA 

 vs. 

KEVIN BISHOP 

 Appellant, No. 94-5321. 

___________ 

UNITED STATES OF AMERICA 

 vs. 

 EDWARD STOKES 

 Appellant, No. 94-5387. 

___________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. Criminal Nos. 93-cr-00552-2 and 93-cr-00552-1) 

___________ 

ARGUED JUNE 28, 1995 

BEFORE: BECKER, LEWIS and GARTH, Circuit Judges. 

(Filed September 7, 1995) 

___________ 
2 
3 

Kim A. Otis (ARGUED) 

Haveson & Otis 

194 Nassau Street 

Princeton, NJ 08542 

 Attorney for Appellant, Kevin Bishop

Michael J. Sullivan (ARGUED) 

Office of Federal Public Defender 

972 Broad Street 

Newark, NJ 07102 

 Attorney for Appellant, Edward Stokes

Kevin McNulty (ARGUED) 

Office of United States Attorney 

970 Broad Street 

Room 502 

Newark, NJ 07102 

 Attorney for Appellee

___________ 

OPINION OF THE COURT 

___________ 

LEWIS, Circuit Judge. 

 We are called upon in this case principally to perform 

one of our most delicate duties -- determining whether Congress 

exceeded its constitutional authority in enacting a federal law. 

At issue is the power of Congress to criminalize "carjacking" --

the armed theft of an automobile from the presence of another by 

force and violence or by intimidation. Congress believed that it 

had the power to criminalize the carjacking of any motor vehicle 

that has been transported, shipped or received in interstate or 

foreign commerce, and accordingly enacted 18 U.S.C. § 2119 to do 
4 

just that. Edward Stokes and Kevin Bishop were convicted under 

that statute of carjacking an automobile in East Orange, New 

Jersey. They appeal their convictions on numerous grounds, most 

of which require little discussion. However, we address in 

greater depth two of the arguments: (1) that the Double Jeopardy 

Clause of the Fifth Amendment prohibited the district court from 

imposing consecutive sentences for carjacking in violation of 

28 U.S.C. § 2119 and use of a firearm during the commission of a 

violent felony in violation of 28 U.S.C. § 924(c); and (2) that 

Congress exceeded its constitutional authority in enacting the 

carjacking statute. We will affirm. 

I. 

 Close to midnight on the warm, pleasant night of 

July 22, 1994, after getting a bite to eat, Roger Bradley decided 

to teach his fiancee, Grace Rollins, how to drive the new Dodge 

Shadow automobile Bradley had purchased just three weeks 

previously. Bradley chose the parking lot of a Channel store in 

East Orange, New Jersey for the lesson and pulled his car into 

the lot. Rollins practiced driving in the parking lot for a 

while, then decided that she had had enough, and the two got out 

of the car to switch positions. 

 As they did so, they were approached by two men. One 

of the men put a pistol to Bradley's head and demanded the car 

keys; the other put a hand over Rollins' mouth and held her from 

behind. After Bradley turned over the keys, the two men drove 

off, but not before both Bradley and Rollins got a good look at 

the man who had brandished the gun at Bradley. 
5 

 Luckily, as the thieves pulled away in the car and 

Bradley ran out into the road, he spotted a police car that had 

just pulled into another nearby parking lot. Flagging down the 

police, Bradley described the incident and his automobile, and 

provided descriptions of the assailants. This information was 

broadcast over the police radio. 

 Officer Morris Rhodes of the East Orange Police 

Department heard the bulletin, and shortly thereafter an 

automobile matching the description drove by him. Its occupants 

fit the general description (two black males) Bradley had 

provided. Officer Rhodes followed without his lights on while 

radioing in the license plate number, then switched on the lights 

and siren when the report came back that the car was the vehicle 

in question. 

 The Shadow accelerated and tried to pass another car 

that was turning, but struck the other car and careened into a 

building. As Officer Rhodes pulled up to the scene, he saw a man 

exit through the driver's side window, fall to the pavement, get 

up, and run. Officer Rhodes gave chase, pulled his gun, and 

ordered the man to stop. The man stopped and was arrested and 

handcuffed. That man was Edward Stokes. Two guns were found on 

the floor of the automobile, but the other man who had been in 

the car was not found. 

 Officer Rhodes took Stokes to the police station and 

booked him, videotaping the procedure. At one point during the 

booking, one of the officers asked Stokes, who had been limping, 
6 

what was the matter with his leg. Stokes responded that he had 

hurt it in an accident. 

 Within an hour and a half of the carjacking, Bradley 

and Rollins were taken into a room at the police station, one at 

a time, to view a suspect. Prior to viewing the suspect, they 

had heard the police talking about having apprehended the man who 

had stolen the car. Through a one-way mirror, they both 

identified Stokes as the man who had held a gun to Bradley's 

head. 

 Kevin Bishop was arrested three months later on 

unrelated charges. Both he and Stokes were later indicted for 

carjacking in violation of 18 U.S.C. § 2119, use of a firearm 

during commission of a violent felony in violation of 18 U.S.C. 

§ 924(c), and being felons in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1). 

 After the district court denied Bishop's motion to 

dismiss, which had alleged that the carjacking statute was 

unconstitutional, Bishop pleaded guilty to the charges against 

him on February 4, 1994. He received a sentence of 210 months of 

imprisonment, three years of supervised release and a $2,000 

fine. 

 Stokes' case went to trial. Prior to that trial, the 

district court denied Stokes' motion to suppress evidence of the 

victims' out-of-court identification of him and to bar the 

government from using the victims to identify Stokes in court. At 

trial, the victims testified about their out-of-court 

identifications of Stokes and identified him as the perpetrator 
7 

again before the jury. Also, over Stokes' objection, the 

district court permitted the government to introduce into 

evidence Stokes' comment during booking about injuring his leg 

and to show the jury the videotape of Stokes' booking. The jury 

found Stokes guilty of carjacking and use of a firearm during the 

commission of a violent felony and (subsequently, in the second 

half of the bifurcated trial) of being a felon in possession of a 

firearm. Stokes was sentenced to 248 months of imprisonment, 

three years of supervised release and a $5,000 fine. 

 Both Bishop and Stokes appealed,0 and we consolidated 

their appeals for purposes of argument and disposition. We have 

jurisdiction under 28 U.S.C. § 1291. 

 As we stated at the outset, although both Bishop and 

Stokes have raised numerous issues, we address in the body of 

this opinion only two issues: Stokes' argument that the Double 

Jeopardy Clause of the Fifth Amendment prohibits consecutive 

sentences for carjacking (18 U.S.C. § 2119) and use of a firearm 

during the commission of a violent felony (18 U.S.C. § 924(c)); 

and Bishop's and Stokes' arguments that the carjacking statute is 

unconstitutional because in enacting the statute, Congress 

exceeded its authority under the Commerce Clause.0

 

0

 Although Bishop pleaded guilty without reserving his right 

to appeal his motion to dismiss the indictment because of the 

alleged constitutional invalidity of section 2119, see Fed. R. 

Crim. P. 11(a)(2), we have jurisdiction over his appeal of this 

issue because it goes to the jurisdiction of the district court. 

Menna v. New York, 423 U.S. 61, 63 n.1 (1975); Blackledge v. 

Perry, 417 U.S. 21, 30 (1974). 

0

 We have considered and reject Bishop's argument that the 

carjacking statute violates equal protection. See United States 

v. Watson, 815 F.Supp. 827, 832-36 (E.D. Pa. 1993). 
8 

II. 

 

 Additionally, we reject Stokes' other arguments on appeal, 

namely: that the station house "show-up" of Stokes was so unduly 

suggestive that the district court abused its discretion in 

failing to exclude the evidence of the victims' out-of-court 

identification of him and in refusing to bar their in-court 

identifications; that the district court abused its discretion in 

permitting the videotape of the booking procedure to be shown 

during trial; and that the district court erred in failing to 

suppress Stokes' comment about his leg injury during the booking 

procedure. None of these issues has merit. 

 Although the show-up was arguably unnecessarily and 

impermissibly suggestive, the district court did not commit clear 

error in finding as matters of fact that the victims' 

identifications were the result of their own recollections of the 

crime and not the result of what may well have been an 

impermissibly suggestive show-up. Nor did the district court err 

in concluding that the identifications were reliable. Thus, the 

identifications were admissible. See Neil v. Biggers, 409 U.S. 

188 (1972). 

 Concerning admission of the videotape of the booking at 

trial, Stokes provides no good reason why the videotape of the 

booking should not have been shown to the jury, and the 

government provided a number of good reasons why it was properly 

introduced. Thus, the district court did not abuse its 

discretion in siding with the government. 

 Finally, with respect to the court's admission at trial of 

Stokes' non-Mirandized statement, we join the other courts of 

appeals that have addressed the issue and recognize that there is 

a "routine booking exception" to the requirements of Miranda v. 

Arizona, 384 U.S. 436 (1966). See United States v. Horton, 873 

F.2d 180, 181 n.2 (8th Cir. 1989) (listing cases from First, 

Second, Fifth, Seventh, Eighth and Eleventh Circuits recognizing 

"routine booking exception"). Applying that exception in this 

case, the district court did not commit clear error in finding 

that the police officer's question about Stokes' limp was part of 

the booking procedure designed to fulfill the government's 

obligation to provide medical attention if necessary. Thus, the 

district court did not abuse its discretion in permitting the 

statement to be introduced as evidence under the "routine booking 

questions" exception to Miranda. 
9 

 Stokes argues that the Double Jeopardy Clause of the 

Fifth Amendment0 prohibited the district court from imposing 

consecutive sentences upon him for carjacking in violation of 28 

U.S.C. § 21190 and use of a firearm during the commission of a 

violent felony in violation of 28 U.S.C. § 924(c).0 Our standard 

 

0

 That Clause states, "[N]or shall any person be subject for 

the same offence to be twice put in jeopardy of life or limb 

. . . ." U.S. Const., Amend. V. 

0

 At the time of the commission of the carjacking at issue 

here, Section 2119 provided that: 

 Whoever, possessing a firearm as defined 

in section 921 of this title, takes a motor 

vehicle that has been transported, shipped, 

or received in interstate or foreign commerce 

from the person or presence of another by 

force and violence or by intimidation, or 

attempts to do so, shall-- 

 (1) be fined under this title 

or imprisoned not more than 15 years, or 

both, 

 (2) if serious bodily injury 

(as defined in section 1365 of this 

title) results, be fined under this 

title or imprisoned not more than 25 

years, or both, and 

 (3) if death results, be fined 

under this title or imprisoned for any 

number of years up to life, or both. 

18 U.S.C. § 2119 (Supp. V 1993). The Violent Crime Control and 

Law Enforcement Act of 1994, enacted September 13, 1994, amended 

subsection (3) of this statute by adding a death penalty 

provision and the phrase "with the intent to cause death or 

serious bodily harm" in place of the phrase "possessing a firearm 

as defined in section 921 of this title." Pub. L. 103-322, 108 

Stat. 1796, 1970, Section 60003(a)(14) (1994). We do not address 

the implications, if any, of this change upon the Double Jeopardy 

analysis in the text, and we view this change as having no impact 

upon our Commerce Clause discussion. 

0

 Section 924(c) provides in pertinent part: 
10 

of review is plenary. United States v. Lattany, 982 F.2d 866 

(3rd Cir. 1992). 

 Stokes relies on the principle that the Double Jeopardy 

Clause prohibits multiple punishments for the same offense. 

However, as the Supreme Court has found, "With respect to 

cumulative sentences imposed in a single trial, the Double 

Jeopardy Clause does no more than prevent the sentencing court 

from prescribing greater punishment than the legislature 

intended." Missouri v. Hunter, 459 U.S. 359, 366 (1983). 

 Attempting to fit within this rubric, Stokes argues 

that we should apply the rule of statutory construction announced 

in Blockburger v. United States, 284 U.S. 299 (1932). The 

essential question of that test is "whether each provision 

requires proof of an additional fact which the other does not." 

Id. at 304. In this case, Stokes argues, since all violations of 

the carjacking statute necessarily constitute violations of 

§ 924(c), the statutes fail the Blockburger test and their 

consecutive application would violate double jeopardy "in the 

absence of a clear indication of contrary legislative intent." 

Whalen v. United States, 445 U.S. 684 (1980). 

 Although we have not yet addressed the Double Jeopardy 

implications of 18 U.S.C. §§ 924(c) and 2119, Stokes' arguments 

have been raised in every other court of appeals except the 

 

 (1) Whoever, during and in relation to 

any crime of violence . . . uses or carries a 

firearm shall, in addition to the punishment 

provided for such crime . . . be sentenced to 

imprisonment for five years. . . . 
11 

Seventh and D.C. Circuits. Defendants have lost every time. 

United States v. Centeno-Torres, 50 F.3d 84 (1st Cir. 1995); 

United States v. Mohammed, 27 F.3d 815, 819-20 (2d Cir. 1984); 

United States v. Johnson, 32 F.3d 82, 85 (4th Cir. 1994); United 

States v. Singleton, 16 F.3d 1419, 1425-29 (5th Cir. 1994); 

United States v. Johnson, 22 F.3d 106, 107-08 (6th Cir. 1994); 

United States v. Jones, 34 F.3d 596 (8th Cir. 1994); United 

States v. Martinez, 49 F.3d 1398 (9th Cir. 1995); United States 

v. Overstreet, 40 F.3d 1090 (10th Cir. 1994); United States v. 

Moore, 43 F.3d 568 (11th Cir. 1994). Indeed, when one evaluates 

the statutes at issue, it is evident why no appellate court has 

accepted Stokes' Double Jeopardy theory, for although Stokes 

wants us to apply Blockburger, to do so would be to put the cart 

before the horse. Blockburger applies when the legislative 

intent is not clear. Here, the statutes are clear. As the 

Second Circuit noted in Mohammed, "Because the legislative intent 

to impose a consecutive sentence for the violation of section 

924(c) is plain from the language of that provision, . . . we 

need not consider the Blockburger test to conclude that the 

consecutive sentence imposed in this case did not violate double 

jeopardy." Mohammed, 27 F.3d at 819. This conclusion required 

the Mohammed court to move no mountains: as even a cursory 

reading of section 924(c) (supra n.5) confirms, that statute says 

that its punishment applies "in addition to the punishment 

provided for" the crime in which the firearm was used. Because 

Congress unambiguously provided that it wanted to impose a 
12 

consecutive sentence, the Double Jeopardy Clause is not 

triggered. 

 Even if we were to apply the Blockburger test to 

sections 924(c) and 2119, we would find no Double Jeopardy 

problem. In this regard, we are persuaded by the reasoning of 

Judge Wisdom in United States v. Singleton, 16 F.3d 1419 (5th 

Cir. 1994).0 As Judge Wisdom explained, the clear indication in 

section 924(c) that its penalty was to apply "in addition to the 

punishment provided" for the underlying crime in which the 

firearm is used or carried "states that Congress intended for 

§ 924(c)'s five-year sentence to be imposed cumulatively with the 

punishment for the predicate drug-related or violent crime." 

Singleton, 16 F.3d at 1425. This Congressional intent, Judge 

Wisdom explained, eliminated any Blockburger problem. 

 Both of the objections raised by Stokes to this 

conclusion were addressed and rejected in Singleton. First, 

Stokes argues that the legislative history of the 1984 amendments 

to section 924(c) demonstrate that Congressional concern was 

focused on responding to the Supreme Court's decision in United 

States v. Simpson, 435 U.S. 6 (1978), in which the Court had 

ruled that Congress had not intended former section 924(c) to be 

applied in conjunction with statutes that included their own 

 

0

 Judge Wisdom believed that the statutes failed the 

Blockburger test, in that proof of a violation of section 2119 

necessarily proves a violation of section 924(c). While we agree 

with the Second Circuit that the Blockburger test need not be 

applied to these statutes, we agree with Judge Wisdom that, if 

applied, Blockburger does not demonstrate a constitutional 

violation. 
13 

penalty enhancement provisions for the use of a firearm. 

According to Stokes, Congress intended its 1984 amendments to 

section 924(c) to clarify that 924(c) applied in such situations: 

 Section 924(c) sets out an offense 

distinct from the underlying felony and is 

not simply a penalty provision . . . . 

 [T]he Supreme Court's decisions in 

Simpson v. United States, and Busic v. United 

States, have negated the section's use in 

cases involving statutes . . . which have 

their own enhanced, but not mandatory, 

punishment provisions in situations where the 

offense is committed with a dangerous weapon. 

These are precisely the type of extremely 

dangerous offenses for which a mandatory 

punishment for the use of a firearm is the 

most appropriate. 

S. Rep. No. 225 at 312, 1984 U.S.C.C.A.N. at 3490 (footnotes 

omitted). According to Stokes, "[b]y 1992, the date of the 

enactment of § 2119, the sentencing guidelines were in effect, 

and minimum sentences based on the guideline calculations would 

be applied to all § 2119 violators. Therefore, the stated intent 

of the 1984 Congress in passing § 924(c) to assure mandatory jail 

time for gun-toting offenders does not dictate consecutive 

sentences for a statute adopted after the Guidelines were already 

in effect." Stokes Br. 23. Without reproducing Judge Wisdom's 

analysis of amended section 924(c) and its legislative history 

here, however, we agree with his conclusion that the text and 

legislative history "make it clear that Congress wanted to stack 

§ 924(c)'s punishment atop all predicate crimes that came within 

the statute, not just the Simpson/Busic variety of predicate 
14 

crimes for which the statutes included `enhancement' provisions." 

Singleton, 16 F.3d at 1427. 

 Second, Stokes attempts to escape the plain language of 

section 924(c) by arguing that, since 924(c) was enacted before 

section 2119, there is no clear legislative intent that the 

phrase "any crime of violence" in 924(c) meant "any crime of 

violence, including those enacted hereafter." Thus, according to 

Stokes, the legislative intent is not clear and the statutes 

cannot be applied in tandem. Again, we agree with Judge Wisdom 

that the sequence of enactment of the statutes is irrelevant. 

Once Congress has clearly stated an intention to stack 

punishments as it did in section 924(c), "it need not reiterate 

that intent in any subsequent statutes that fall within the 

previously defined class." Singleton, 16 F.3d at 1428. 

Otherwise, Congress would have to "repeat itself, restating in 

each subsequent enactment an intention Congress thought it 

clearly expressed once already. We see no reason to require such 

a convoluted approach to lawmaking." Id. Section 924(c) is 

clear, and applying multiple punishments under that provision and 

section 2119 does not violate Double Jeopardy. 

III. 

 We turn, therefore, to Bishop's and Stokes' argument 

that Congress exceeded its constitutional authority under the 

Commerce Clause when it enacted section 2119. Under the Commerce 

Clause, of course, Congress is empowered "to regulate Commerce 

with foreign Nations, and among the several States, and with the 

Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. This power has 
15 

been construed broadly to permit regulation of a great deal of 

modern life.0 Thus, until recently, appellants' argument that 

Congress could not regulate the species of motor vehicle theft 

known as carjacking was uniformly rejected by the courts of 

appeals that had considered the issue.0

 However, Bishop and Stokes believe that new life was 

breathed into their challenge on April 26, 1995. On that date, 

for the first time in more than half a century, the Supreme Court 

in United States v. Lopez, 115 S. Ct. 1624 (1995), invalidated a 

Congressional enactment solely because Congress had exceeded its 

authority under the Commerce Clause.0 Because we will address 

 

0

 Supreme Court precedents demonstrate the breadth of 

Congressional Commerce Clause power, which has been found to 

include the ability to regulate, for example, the company one 

keeps in a local barbecue restaurant or city hotel, Katzenbach v. 

McClung, 379 U.S. 294 (1964), and Heart of Atlanta Motel v. 

United States, 379 U.S. 241 (1964); the ability of a farmer to 

grow his or her own crops for personal consumption as he or she 

sees fit, Wickard v. Filburn, 317 U.S. 111 (1942); the ability of 

a loanshark to make extortionate extensions of credit, even 

though the particular transaction has no nexus with interstate 

commerce, Perez v. United States, 402 U.S. 146 (1971); and the 

ability of a landlord-turned-arsonist to put the match to his own 

rental property, whether or not he rented in interstate commerce, 

Russell v. United States, 471 U.S. 858 (1985). 

0

 United States v. Williams, 51 F.3d 1004 (11th Cir. 1995); 

United States v. Martinez, 49 F.3d 1398 (9th Cir. 1995); United 

States v. Bell, 46 F.3d 442 (5th Cir. 1995); United States v. 

Overstreet, 40 F.3d 1090 (10th Cir. 1994); United States v. 

Harris, 25 F.3d 1275 (5th Cir. 1994); United States v. Johnson, 

22 F.3d 106 (6th Cir. 1994). 

0

 In National League of Cities v. Usury, 426 U.S. 833 (1976), 

the Court invalidated an extension of federal wage law to state 

operations because Congress' exertion of its Commerce Clause ran 

afoul of states' reserved powers under the Tenth Amendment. 

National League of Cities was subsequently overruled. Garcia v. 

San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). 
16 

Lopez throughout the balance of this opinion, it is useful to 

provide an overview of the decision here. 

 At issue in Lopez was the constitutionality of the 

Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), 

which made it a federal offense "for any individual knowingly to 

possess a firearm at a place that the individual knows, or has 

reasonable cause to believe, is a school zone." As one may 

observe from the language of the statute, nothing connected this 

statute overtly with commerce among the states or even any 

economic transaction. To the contrary, it penalized the simple 

possession of any handgun within a "school zone," which was 

defined later in the statute (with certain exceptions) as the 

grounds of a public, private or parochial school or within 1000 

feet of the grounds. Alfonzo Lopez was convicted of violating 

the Act by bringing a .38 caliber handgun to school, but on 

appeal he persuaded the Fifth Circuit that the law was 

unconstitutional because it lacked the requisite nexus with 

interstate commerce. 

 The Supreme Court affirmed. The Court noted that 

Congressional power under the Commerce Clause may involve three 

categories of regulation: (1) Congress may regulate "the use of 

channels of interstate commerce"; (2) Congress may "regulate and 

protect the instrumentalities of interstate commerce, or persons 

or things in interstate commerce, even though the threat may come 

only from intrastate activities"; and (3) Congress may "regulate 

those activities having a substantial relation to interstate 
17 

commerce, . . . i.e., those activities that substantially affect 

interstate commerce." Lopez, 115 S. Ct. at 1629. 

 The government in Lopez tried to justify § 922(q) 

solely on the ground that it fit within Category Three, as "a 

regulation of an activity that substantially affects interstate 

commerce." Lopez, id. The Court noted, however, that § 922(q) 

by its terms was a criminal statute that "has nothing to do with 

`commerce' or any sort of economic enterprise, however broadly 

one might define those terms." Id. Furthermore, the Court noted 

that the statute "contains no jurisdictional element which would 

ensure, through case-by-case inquiry, that the firearm possession 

in question affects interstate commerce." Id. at 1631. And the 

Court noted that the government had conceded that neither the 

statute nor its legislative history contained any findings 

concerning the effects upon interstate commerce of possession of 

a gun in a school zone. Id.

 The government's Category Three justifications were 

twofold. First, the government argued that possession of a gun 

in a school zone may result in an increase in violent crime, 

which in turn increases societal costs through increased 

insurance costs and also decreases travel to unsafe areas. Id.

at 1632. Second, the government argued that guns in schools 

threaten the learning environment, which in turn creates a less 

productive citizenry and adversely affects the national economy. 

Id. The Court rejected these arguments as potentially limitless 

justifications for virtually any conceivable Congressional 

legislation. Id. Anything that might lead to violent crime 
18 

could be regulated under the government's "cost of crime" 

argument, the Court noted, as well as anything that was related 

to the productivity of individual citizens, including such 

traditional areas of state law as family law. Id. Seeing no 

other justification for the law, the Court found it 

unconstitutional. 

 The district court in this case found that section 2119 

was constitutional, but did so without the benefit of Lopez. The 

parties initially briefed the Commerce Clause issue before us 

without the benefit of Lopez as well, leading us to hold the case 

pending the Court's decision in Lopez and then to request 

supplemental briefing. 

 Exercising plenary review of the district court's legal 

determination that section 2119 is constitutional, we will 

affirm. 

A. 

 The government's primary argument fits within the third 

category of problems which Congress may permissibly regulate 

under its Commerce Clause power: Congress may "regulate those 

activities having a substantial relation to interstate commerce, 

. . . i.e., those activities that substantially affect interstate 

commerce." Lopez, 115 S. Ct. at 1629. According to the 

government, section 2119 is justified under Category Three for 

two reasons: (1) Congress had a rational basis for believing 

that carjacking substantially affects interstate commerce; and 

(2) section 2119 has, as an element of the offense, a requirement 
19 

that there be a constitutionally adequate nexus with interstate 

commerce. We agree with both arguments. 

1. 

(a) 

 Although ultimately the federal courts are the arbiters 

of constitutional questions, "the Commerce Clause grants Congress 

extensive power and ample discretion to determine its appropriate 

exercise." Lopez, 115 S. Ct. at 1634 (Kennedy, J., concurring). 

We therefore must give substantial deference to a Congressional 

determination that it had the power to enact particular 

legislation. As Justice Kennedy noted in his concurrence in 

Lopez, 

[t]he history of the judicial struggle to 

interpret the Commerce Clause during the 

transition from the economic system the 

Founders knew to the single, national market 

still emergent in our own era counsels great 

restraint before the Court determines that 

the Clause is insufficient support to an 

exercise of the national power. 

Id. And again, "Whatever the judicial role, it is axiomatic that 

Congress does have substantial discretion and control over the 

federal balance" between the national government and the states. 

Id. at 1639. Deference to Congressional judgments about the 

contours of Commerce Clause power stems in part, as Justice 

Kennedy explained, from the fact that Congress is a coordinate 

branch of the federal government charged with the government's 

legislative authority. Id. at 1634. 
20 

 Indeed, the primary check upon Congressional action is 

its direct responsibility to the will of the people. This has 

sometimes been stated categorically: 

The wisdom and the discretion of Congress, 

their identity with the people, and the 

influence which their constituents possess at 

elections are, in this, as in many other 

instances . . . the sole restraints on which 

they have relied, to secure them from its 

abuse. They are the restraints on which the 

people must often rely solely, in all 

representative governments. 

Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 197 (1824) (Marshall, 

CJ.). Notwithstanding the ultimate check of the ballot box, 

however, it is beyond peradventure (and was recently and 

forcefully demonstrated in Lopez itself) that the federal courts 

also must play a role in regulating the exercise of Congressional 

power: 

When the conduct of an enterprise affects 

commerce among the States is a matter of 

practical judgment, not to be determined by 

abstract notions. The exercise of this 

practical judgment the Constitution entrusts 

primarily and very largely to Congress, 

subject to the latter's control by the 

electorate. Great power was thus given to 

the Congress: the power of legislation and 

thereby the power of passing judgment upon 

the needs of a complex society. Strictly 

confined though far reaching power was given 

to this Court: that of determining whether 

the Congress has exceeded limits allowable in 

reason for the judgment which it has 

exercised.

Polish National Alliance v. National Labor Relations Board, 322 

U.S. 643, 650 (1944) (emphasis added). Because the legislature 

has no "structural mechanisms to require those officials to 

undertake [the] principled task [of safeguarding federalism], and 
21 

[because of] the momentary political convenience often attendant 

upon their failure to do so," it is incumbent upon the courts to 

ensure that Congress does not overstep constitutional boundaries. 

Lopez, 115 S. Ct. at 1639 (Kennedy, J., concurring). "[T]he 

federal balance is too essential a part of our constitutional 

structure and plays too vital a role in securing freedom for us 

to admit inability to intervene when one or the other level of 

Government has tipped the scales too far." Id.

 The Supreme Court's jurisprudence makes it abundantly 

clear that our job in this case is not to second-guess the 

legislative judgment of Congress that carjacking substantially 

affects interstate commerce, but rather to ensure that Congress 

had a rational basis for that conclusion. Chief Justice 

Rehnquist explained in Lopez, 

In Jones & Laughlin Steel, the Court warned 

that the scope of the interstate commerce 

power "must be considered in the light of our 

dual system of government and may not be 

extended so as to embrace effects upon 

interstate commerce so indirect and remote 

that to embrace them, in view of our complex 

society, would effectively obliterate the 

distinction between what is national and what 

is local and create a completely centralized 

government." [NLRB v. Jones & Laughlin Steel 

Corp., 301 U.S. 1, 37 (1937)] . . . . Since 

that time, the Court has heeded that warning 

and undertaken to decide whether a rational 

basis existed for concluding that a regulated 

activity sufficiently affected interstate 

commerce. 

Lopez, 115 S. Ct. at 1629 (emphasis added). See also, e.g., id.

at 1658 (Breyer, J., dissenting) ("the specific question before 

us, as the Court recognizes, is not whether the `regulated 
22 

activity sufficiently affected interstate commerce,' but, rather, 

whether Congress could have had a `rational basis' for so 

concluding"). "[T]he proper test requires an analysis of whether 

the regulated activity `substantially affects' interstate 

commerce." Lopez, 115 S. Ct. at 1630. We therefore turn to that 

inquiry. 

(b) 

 The carjacking statute at issue in this case began as 

the first section (section 101) of what became the Anti Car Theft 

Act of 1992, Public Law No. 102-519. In December 1991 and March 

1992, Representative Charles E. Schumer held hearings on H.R. 

4542, a multi-faceted piece of legislation addressing many 

aspects of auto theft. As he explained, the purpose of the 

hearings was to "examine the scope of the auto crime problem, the 

different sectors of the auto theft industry and why it's so hard 

to catch and convict auto thieves." Anti-Car Theft Act of 1992: 

Hearings on H.R. 4542 Before the Subcomm. on Crime and Criminal 

Justice of the House Comm. on the Judiciary, 102d Cong., 1st and 

2d Sess. 3 (1991 and 1992) ("Anti-Car Theft Hearings") (statement 

of Rep. Schumer). 

 At those hearings, numerous persons testified about the 

scope and growth of the problem of auto theft in the United 

States. More pertinent to our inquiry, testimony at those 

hearings also provided evidence that carjacking was emerging as a 

new and growing aspect of the auto theft problem. See Id. 31-32 

(testimony of Ron Thrash) (carjacking not a serious problem in 

New York City in terms of numbers, but "in other portions of the 
23 

country . . . they're having an increase in that particular type 

of crime"); 69 (testimony of Richard Jeffares) ("We do see an 

increase in carjacking . . . but we do not have statistics 

available on this"); 228 (prepared statement of Herman Brandau) 

(noting that organizations formed utilizing federal grants under 

the proposed Act "can help direct resources to the problems in 

particular areas which need the most attention. Most frightening 

is the emerging problem of carjacking"). Additionally, materials 

submitted for the hearings provided evidence that thieves who 

begin their auto theft careers as joy riders tend to become 

professionals. Id. at 268 (letter from William J. Lundy to Lyle 

Nirenberg of 3/23/92) (study "indicated that the people who get 

involved in [auto] theft for profit started out as joy riders who 

found that it could be turned into a profitable business"); see

also id. at 306-310 (discussion in study).0

 The House Report accompanying H.R. 4542 consisted of 

three parts: House Report (Judiciary Committee) No. 102-851(I) 

(August 12, 1992), House Report (Energy and Commerce Committee) 

No. 102-851(II) (Sept. 22, 1992), and House Report (Ways and 

Means Committee) No. 102-851(III) (Sept. 23, 1992), all reprinted 

 

0

 Additional hearings were held in September 1992 before the 

House Subcommittee on Commerce, Consumer Protection, and 

Competitiveness of the House Energy and Commerce Subcommittee. 

See Anti-Car Theft and Content Labeling: Hearing on H.R. 4220, 

H.R. 4228, H.R. 4230 and H.R. 4542 Before the Subcomm. on 

Commerce, Consumer Protection, and Competitiveness of the House 

Comm. on Energy and Commerce, 102d Cong., 2d Sess. (1992). These 

hearings focused on efforts to label automobile parts, to make it 

more difficult to trade in the auto theft "after market" for 

stolen parts. 
24 

in 1992 U.S.C.C.A.N. 2829.0 Those reports included the following 

significant findings: 

> "Automobile theft has become the nation's number one 

property crime problem. More than 1.6 million motor 

vehicles were reported stolen in 1991, an increase of 

34% since 1986. The stolen automobiles were worth an 

estimated $8-9 billion, representing over 50% of the 

value of property lost to crime." House Report No. 

102-851(I) at 14. 

> "Auto theft has become a very large and lucrative 

business. The typical auto thief is no longer a 

teenager seeking a joyride. Now, auto theft is an 

industry peopled by professional criminals operating as 

part of profit-making enterprises." Id.

> Auto thieves "turn stolen cars into money in three 

ways": (1) bringing stolen vehicles to "chop shops," 

where they are taken apart and sold for parts; 

(2) "washing" the titles by obtaining an apparently 

valid title for stolen automobiles; and (3) exporting 

the vehicles for sale abroad. "Enterprises using all 

three profiteering methods regularly engage in 

interstate, even international, trafficking of 

automobiles and auto parts. Just as important, auto 

thieves have a severe and deleterious effect on 

interstate commerce by imposing significant costs on 

automobile consumers." Id. at 14-15. 

> "In addition to economic costs, car owners are 

increasingly subject to violent crime. The most recent 

development in auto theft is `armed carjacking.' In 

these incidents, two or three criminals approach a car 

waiting at a traffic light, or stopped by means of a 

deliberate `fender-bender' accident, and force the 

driver to turn over the keys at gunpoint." Id. at 15. 

> "Auto crime enforcement has been conducted primarily at 

the state and local level. There are significant 

barriers to enforcement, however, that have resulted in 

49 out of 50 auto thieves escaping punishment. Cars 

are stolen so easily and dismantled so rapidly that 

police intervention at the point of theft is rare. 

Also, overburdened state and local law enforcement 

agencies are often unable to give auto theft the 

attention it deserves. Even when criminals are caught 

 

0

 There was no Senate report. 
25 

with a stolen car, it can be difficult to make a case 

in court for auto theft because the defendant can claim 

that he purchased the car without knowing that it had 

been stolen." Id. at 15. 

> "[T]heft of motor vehicles is a national problem. It 

is, however, a complex problem that . . . is broader 

than carjacking and chop shop related thefts." House 

Report No. 102-851(II) at 12. 

> The legislation is not aimed at joyriding. Id. at 13. 

> "Perhaps relating to the opportunity for profit, 

criminals are increasingly committing violent crime in 

the form of `armed carjacking.'" House Report 

No. 102-851(III) at 2. 

 H.R. 4542 was taken up for vote by both houses of 

Congress in October 1992. Certainly, during the floor debate on 

the Act, legislators in both the House and Senate expressed 

outrage at the violent aspects of carjacking,0

 but statements 

also show that Congress believed carjacking to be a profit-making

 

0

 E.g., 138 Cong. Rec. H11,819 (statement of Rep. Ramstad) 

("People are outraged and terrified by the heinous carjacking 

epidemic currently upon us. How can any civilized nation 

tolerate the brutal killing of a mother dragged 2 miles to her 

death, while desperately trying to reach for her infant child 

inside her commandeered car? How can any civilized people 

tolerate such despicable, outrageous criminal acts? They cannot 

and they will not"); id. at H11,820 (statement of Rep. Collins) 

("The most shocking case [of carjacking] involved a young mother, 

who was dragged 2 miles to her death during a carjacking in 

Savage, MD, and whose baby was literally thrown from the car. 

This has absolutely galvanized public opinion and outcry that 

this Congress act now to address this awesome despicable crime"); 

id. at H11,821 (statement of Rep. Fazio) ("I doubt there are very 

many people in this area who have not heard about the young 

mother dragged to her death by carjackers. This senseless 

tragedy is but one of the many which has been occurring with 

increasing regularity across the country"); 138 Cong. Rec. 

S17,960 (daily ed. Oct. 8, 1992) (statement of Sen. Lautenberg) 

("There are many dimensions to the vehicle theft problem, Mr. 

President. Perhaps the most disturbing is the emerging problem 

of violent carjacking"). 
26 

crime,0 and one which was a growing part of the interstate and 

international auto theft problem.0

 Congress apparently concluded that the national and 

international problem of auto theft required a comprehensive 

approach to law enforcement. Thus, each provision of the Anti 

Car Theft Act of 1992 was designed to address one or more 

elements of the interstate business of automobile theft. The Act 

 

0

 E.g., 138 Cong. Rec. H11,821 (daily ed. Oct. 5, 1992) 

(statement of Rep. Hoyer) ("Carjacking is not just an impulsive, 

joyriding crime, but is oftentimes motivated by profit"); id.

(statement of Rep. Fazio) ("Auto theft is no longer confined to 

youngsters out looking for a vehicle for joyriding. It has 

evolved into carjacking -- a version of auto theft that involves 

armed robbery of a vehicle while the driver is present -- an 

extremely lucrative business in this country. Carjacking has 

become a high-growth industry that includes both professional 

thieves and parts shops that deal in stolen auto parts, 

merchandise which can be worth up to 4 times as much as the car 

itself. And the crime is becoming more and more linked to 

violence -- to severe beatings, and even murder"); 138 Cong. Rec. 

S17,961 (daily ed. October 8, 1992) (statement of Sen. Pressler) 

("Law enforcement officials have theorized vehicle thieves find 

it easier to use force than to deal with anti-theft devices 

installed in newer model cars. Additionally, carjackers can 

obtain the keys and registration papers for the cars they 

steal"). 

0

 E.g., 138 Cong. Rec. H11,818 (daily ed. Oct. 5, 1992) 

(statement of Rep. Schumer) ("Our constituents are being 

terrorized by an insidious new form of car theft called 

carjacking"); id. at H11,821 (statement of Rep. Lowery) 

(carjacking provision is "a tough response to what has become a 

national problem"); id. at H11,821-22 (statement of Rep. Norton) 

("With good reason, H.R. 4542 makes armed carjacking a Federal 

offense punishable by imprisonment for up to 15 years. These 

thefts often cross state lines, and, indeed, to do an effective 

job, law enforcement agencies have had to work regionally and 

nationally, rather than just locally"); 138 Cong. Rec. S17,961 

(daily ed. October 8, 1992) (statement of Sen. Lautenberg) 

(noting that car theft is especially prevalent in New Jersey, and 

stating that "[c]arjacking threatens to spread rapidly around the 

nation, as criminals engage in copycat crimes. To prevent such a 

plague, we need to bring Federal resources to bear"). See also

statement of Rep. Fazio, supra n.13. 
27 

not only criminalized carjacking (section 101), but also 

increased the fines and prison terms for importation and 

exportation of stolen vehicles (section 102) and interstate 

transportation or possession of such vehicles (section 103), and 

criminalized the operation of chop shops for dismantling stolen 

vehicles (section 105).0 The Act also provided grants for the 

development of local "anti car theft committees" (section 130-

133), mandated the development of a federal/state task force for 

addressing certain issues related to auto theft and fraud 

(section 140), developed a national system for combatting 

automobile title fraud (sections 201-04), expanded the coverage 

of federal law mandating the marking of automobile parts and 

requiring automobile repair shops to use the markings to avoid 

the use of stolen parts (sections 301-06), and mandated stricter 

Custom Service inspections in order to prevent exportation of 

stolen automobiles (section 401). 

 Together, the findings and floor statements -- and the 

structure of the Act itself -- suggest the following. Congress 

specifically found that auto theft is an interstate problem --

both that it is often an interstate business itself (albeit an 

illegal one) and that it gnawed away at the innards of the 

American economy by imposing other costs on society as well. 

Congress believed that auto theft was a vast, illicit trade 

substantially affecting interstate and foreign commerce. Auto 

theft cost consumers both through the direct economic losses 

 

0

 Section 104 provided for civil and criminal forfeiture in 

certain cases involving auto theft. 
28 

caused by having their property taken from them, and through 

increased insurance costs. Congress further believed that 

carjacking was not mere joyriding, but a new and violent form of 

the illicit interstate business of auto theft. Finally, Congress 

believed that the national problem of auto theft required a 

comprehensive, national response addressing the many different 

aspects of the auto theft problem, because prior state efforts 

had failed to combat the problem effectively. 

(c) 

 Bishop, Stokes, and the dissent assail the findings of 

Congress on a number of grounds. First, they contend the Supreme 

Court in Lopez created a "bright line" rule that unless an 

activity is "commercial" or "economic," it is beyond the power of 

Congress to regulate no matter what its effect upon interstate 

commerce. Stokes Supp. Reply Br. at 2. Because carjacking is 

not "commercial" or "economic," appellants contend, it is simply 

beyond the power of Congress to regulate. 

 We cannot accept this argument. The Court in Lopez

disapproved of the statute at issue because possession of a 

handgun was neither economic nor "an essential part of a larger 

regulation of economic activity, in which the regulatory scheme 

could be undercut unless the intrastate activity were regulated." 

Lopez, 115 S. Ct. at 1631. By contrast, we can easily appreciate 

how Congress could readily (and rationally) have believed that 

carjacking is both economically motivated and part of a greater 

economic activity. Indeed, the rationale supporting such a 

conclusion, and distinguishing this case from Lopez, is patently 
29 

obvious. First, carjacking is economic in a way that possession 

of a handgun in a school zone is not. When a criminal points a 

gun at a victim and takes his or her car, the criminal has made 

an economic gain and the victim has suffered an undeniable and 

substantial loss. Replicated 15,000 or 20,000 times per year, 

the economic effects are indeed profound. See infra n.22. By 

comparison, no matter how many criminals possess guns in school 

zones, there is no direct economic effect that arises from the 

crimes.0

 Furthermore, Congress enacted the carjacking provision 

as one aspect of a national solution to a national economic 

problem. Every automobile theft is, by definition, local in its 

particulars, yet Congress could have rationally believed that it 

had to regulate carjacking -- whether or not it was strictly 

"commercial" or "economic" -- as one aspect of its comprehensive 

response to the national and international business of criminal 

auto theft. 

 

0

 Relatedly, appellants argue that the Supreme Court in Lopez

rejected the theory that the "costs of crime" can support a 

finding that an activity substantially affects interstate 

commerce. Bishop Supp. Br. 10. This misreads Lopez, as well. In 

Lopez, the economic impact of mere possession of a handgun in a 

school zone was speculative at best. One of the government's 

arguments was that gun possession might lead to violent crimes, 

the costs of which would be spread throughout society through 

increased insurance premiums. Lopez, 115 S. Ct. at 1632. By 

contrast, in enacting the Anti Car Theft Act of 1992, Congress 

did not rest its findings of substantial effect upon interstate 

commerce solely upon increased insurance costs, but also relied 

upon the direct costs to consumers from lost property resulting 

from auto theft. Thus, the "cost of crime" justification used by 

Congress in this case is much more concrete than the theory 

rejected by the Court in Lopez. 
30 

 The dissent argues that Congress' Commerce Clause power 

under category three is limited to regulation of "a voluntary 

economic exchange." Dissent at 4, 32. The Supreme Court has 

never before used this definition and the dissent does not state 

how or from where it is derived, nor how the definition accounts 

for prior Supreme Court cases which involved no voluntary 

economic exchange. See, e.g., Wickard v. Fillburn, 317 U.S. 111 

(1942) (regulating the production and consumption of home-grown 

wheat). Where the Court has used a potentially ambiguous term, 

as "commercial" arguably is, we prefer to apply the definitions 

used by the court itself. Thus, we are content to rely on Lopez

to define commercial as including those activities which form a 

part of an economic enterprise. Lopez, 115 S.Ct. at 1631. 

 Bishop and Stokes also contend that, whatever Congress 

may have believed about carjacking, it is simply irrational to 

believe that carjackers are professional thieves out for profit. 

Instead, they contend, carjackings are quintessential local 

crimes of violence. "Common sense suggests that it is highly 

unlikely that sophisticated theft rings would engage in 

carjacking in order to get cars to deliver to chop shops for 

profit when it is so easy to steal cars without having to resort 

to the obvious dangers involved in a crime of violence." Bishop 

Supp. Br. at 4. Again, we disagree. Of course, no one would 

dispute that carjacking is often violent -- and indeed often 

achieves its economic end only because of the violence employed. 

However, appellants' arguments are unpersuasive on at least two 

grounds. First, it is incumbent upon a party seeking to undercut 
31 

Congressional fact-finding to offer something more than mere 

"common sense" intuitions about "the way things are." Yet 

appellants provided no data to the district court suggesting that 

they have a better grasp than Congress about what motivates 

carjackers or how sophisticated auto theft rings operate, and we, 

as an appellate tribunal, are hardly in a position to do so based 

upon our own conjectures.0 

 Second, available information actually undercuts 

appellants' "common sense" assertions. In a 1992 report on 

carjacking, the Department of Justice noted that one of the 

motives behind carjacking is "to derive a profit from the resale 

of the vehicle or its parts." Department of Justice, An Analysis 

of Carjacking in the United States (Oct. 14, 1992) at 3.0 Chop 

shops, salvage switching of vehicle identification numbers, 

exportation, and insurance fraud are some of the well defined 

activities that the study identified as for profit activities 

conducted by carjackers. Id. According to the report, law 

 

0

 Nor have appellants provided us with any information 

supporting their intuitions, assuming that it was appropriate for 

them to do so at this late stage. 

0

 While the report notes that economic gain is not the only 

or even the principal motive behind carjacking, the fact that 

additional motives exist is not relevant to our inquiry. We must 

simply determine whether Congress could have rationally concluded 

that carjacking bears a substantial relationship to interstate 

commerce. In order to meet this burden, economic gain need not 

be the exclusive motive for all carjackers. Congress' 

determination that carjacking affects interstate commerce can be 

supported as long as economic gain is a motive. Cf. United States 

Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980) 

("Where, as here, there are plausible reasons for Congress' 

action, our inquiry is at an end. It is, of course, 

`constitutionally irrelevant whether this reasoning in fact 

underlay the legislative decision.') (citation omitted). 
32 

enforcement officials have theorized that modern anti-theft 

devices have made it easier to carjack many vehicles than to 

steal them when they are parked. Id. at 2 (see also infra n.21). 

In addition, both contemporary news reports and reported case law 

bear witness to the fact that carjackers are often not joy 

riders, but rather criminals out for profit from the sale of a 

stolen automobile or its parts.0 Thus, Congress' conclusions 

 

0

 See Emily Culbertson, Man Pleads Guilty to Carjacking 

Spree, The (Philadelphia) Legal Intelligencer, Jan. 10, 1995, at 

5 (defendant admits that he and friends carjacked automobile, 

stripped it for parts, and then burned the remains); Jane K. 

Martinez, Cars Parked Askew Lead to 4 Arrests, The Tampa Tribune, 

June 24, 1995, at 1 (police say carjacking ring had stolen six 

cars worth more than $100,000 that were "likely headed for a chop 

shop"); Jeannette DeSantis, 2 Arrested in "Chop Shop" Case, Los 

Angeles Times, Feb. 14, 1995, at B1 (police say foiled carjacker 

led them to chop shop); Vicky Ferstel, Ex-High School Athlete 

Pleads Guilty in Carjacking, The (Baton Rouge) Advocate, Dec. 16, 

1994, at 3B (witness at trial testifies that carjackers took 

stolen automobile to mechanic in an attempt to have the 

automobile stripped for parts); Mary Murphy, Police Arrest 4, 

Seize 19 Vehicles in Theft-Ring Bust, The Orlando Sentinel, 

Sept. 30, 1994, at C1 (police found carjacked truck at illegal 

chop shop); S.K. Bardwell, "She Would Have Given Them the Keys in 

a Heartbeat", The Houston Chronicle, May 17, 1994, at A1 (police 

say carjackers usually have accomplices follow them in another 

automobile so that they can strip the stolen vehicle for parts 

and then flee). see also United States v. Three Male Juveniles, 

49 F.3d 1058, 1060 (5th Cir. 1995) (defendants who carjacked 

automobile in Texas allegedly intended to take the automobile to 

California and "liquidate the vehicle to obtain funds to purchase 

crack cocaine, which they then intended to sell for a profit"). 

Although Three Male Juveniles involved a prosecution under 18 

U.S.C. § 371 (conspiracy to unlawfully take a motor vehicle while 

possessing a firearm) and 18 U.S.C. § 2111 (unlawfully taking a 

motor vehicle while possessing a firearm), rather than section 

2119, it did involve a carjacking, and it lends further support 

to the conclusion that economic gain, rather than mere violence 

for its own sake, is often at the heart of carjackings. 
33 

about the nature and effects of carjacking have been borne out by 

time.0

 Appellants additionally argue that "it appears that 

there has never been any study or determination as to whether the 

purpose of a carjacking is to resell a car illegally or whether 

it is simply a crime of violence. There is certainly no 

indication in the House Report that carjackers are, generally, 

members of so-called `sophisticated theft rings' who are reaping 

enormous profits from the theft of autos." Bishop Supp. Br. 4. 

This argument, however, assumes that Congress must meet a strict 

standard of specificity in finding facts and reporting its 

conclusions. That is not so. "Congress is not obligated, when 

enacting its statutes, to make a record of the type that an 

administrative agency or court does to accommodate judicial 

review." Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 

2445, 2471 (1994) (opinion of Kennedy, J.). Congress need not 

even rely solely upon evidence provided in hearings. See

Stafford v. Wallace, 258 U.S. 495, 513 (1922) ("It was for 

Congress to decide, from its general information and from such 

special evidence as was brought before it, the nature of the 

evils actually present or threatening, and to take such steps by 

 

0

 Of course, the fact that a legislative prediction does not 

come true does not necessarily mean that legislation premised 

upon it was irrational, provided there was evidence supporting 

the prediction. "Sound policymaking often requires legislators 

to forecast future events and to anticipate the likely impact of 

these events based on deductions and inferences for which 

complete empirical support may be unavailable." Turner 

Broadcasting System v. FCC, 114 S. Ct. 2445, 2471 (1994) (opinion 

of Kennedy, J.). 
34 

legislation within its power as it deemed proper to remedy 

them").0 Congress rationally believed that carjacking was a new 

 

0

 Of course, we do not know all of the information that was 

known to the legislators who passed the Anti Car Theft Act of 

1992. That is one of the reasons why it would be difficult to 

second-guess Congress if that were our role. As Justice Souter 

said in assessing the value of findings in Lopez, "In a case 

comparable to this one, we may have to dig hard to make a 

responsible judgment about what Congress could reasonably find, 

because the case may be close, and because judges tend not to be 

familiar with the facts that may or may not make it close." 

Lopez, 115 S. Ct. at 1656 (Souter, J., dissenting). We know what 

was said at the hearings, and we know what was written in the 

legislative reports. Yet almost certainly the legislators had 

other data before them that is not part of the evidence in the 

"legislative history" of the Act -- data from their own personal 

experiences, their discussions with constituents, and their own 

reading. For example, during the period during which H.R. 4542 

was under consideration, newspapers and periodicals, usually 

quoting police or even carjackers, reported that carjackers often 

strip stolen automobiles for their parts (e.g., David 

Kocieniewski, 2 B'klyn Men Are Nabbed in Manhattan Carnaping, 

Newsday, Oct. 13, 1992, at 22); that they often sell stolen 

automobiles to illegal "chop shops" (e.g., To Foil a Thief, The 

Economist, Oct. 17, 1992, at 30; Jennifer Nagorka, Carjack 

Suspects Arrested; Police: 2 May Be Tied to as Many as 20 Cases, 

Dallas Morning News, Oct. 10, 1992, at 33A; Nora Zamichow, 

"Carjackings," Violent Form of Auto Theft, Reported on the Rise, 

Los Angeles Times, Oct. 9, 1992, at A3; James Harney, Greed, 

Drugs Drove Detroit's "King", USA Today, Oct. 7, 1992, at A2; 

Arnold Abrams, Police Unit to Deal With Carjacking; County to Aid 

Great Neck Peninsula, Newsday, June 7, 1992, at 1; Joe Hughes, 

Car Theft Takes New Turn; Number of "Carjackings" Accelerating in 

San Diego, The San Diego Union-Tribune, March 17, 1992, at A1); 

and that carjackings were increasing for a variety of reasons, 

including the fact that modern anti-theft devices make it safer, 

easier and more profitable to carjack than to steal a parked car 

(e.g., Zamichow, supra; Ben Barber, Terror on the Roads, Calgary 

Herald, Oct. 4, 1992, at B2; Gordon Witkin et al., Willing to 

Kill for a Car, U.S. News & World Report, Sept. 21, 1992, at 40, 

42; "I Want Your Car, Just Get Out": Carjackers Growing Problem, 

Orlando Sentinel Tribune, Sept. 20, 1992, at A12); Abrams, supra; 

Susan Forrest, Car Thieves Find Another Way; County Being Plagued 

by Rash of "Carjackings", Newsday, March 26, 1992, at 35; Hughes, 

supra). 
35 

but substantial0 and growing aspect of the vast interstate auto 

theft problem. As we noted earlier (supra pp. 21-24), Congress 

heard evidence that carjacking was a new form of auto theft that 

was spreading throughout the nation. It also was presented with 

evidence that even thieves who begin as joy riders tend to become 

professionals -- professionals who would feed the illicit auto 

theft aftermarket for stolen vehicles and parts. Thus, Congress 

may have believed that even if a carjacker's first crime was 

committed for some non-economic motive, he or she would likely 

soon be a part of the national auto theft problem. In such 

circumstances, Congress need not have refrained from legislating 

until the carjacking problem reached crisis proportions. 

Katzenbach v. McClung, 379 U.S. 294, 301 (1964).0

(d) 

 

0

 News reports at the time of the passage of the Anti Car 

Theft Act of 1992 indicated that there were 15,000 to 20,000 

carjackings per year. Ben Barber, Terror on the Roads, Calgary 

Herald, Oct. 4, 1992, at B2. If the average loss for each 

automobile theft in 1992 was $5,000 (see Anti-Car Theft Hearings, 

supra, at 7 (statement of Lee P. Brown); id. at 210 (statement of 

David F. Snyder)), the direct costs of carjacking to victims was 

between $75,000,000 and $100,000,000. Cf. Hodel v. Indiana, 452 

U.S. 314, 325 (1981) (disapproving district court finding that 

only an insignificant amount of interstate commerce was involved 

in case, and noting that "the 0.04% of corn production" at stake 

"would have had an approximate value of $5.16 million which is 

surely not an insignificant amount of commerce"). 

0

 Neither Bishop nor Stokes appear to contend that, even if 

Congress had a rational basis for deciding that carjacking 

substantially affects interstate commerce, it nevertheless 

enacted a statute that was not a "reasonable and appropriate" 

means of addressing the perceived evil. See Heart of Atlanta 

Motel v. United States, 379 U.S. at 258-59. Inasmuch as this 

argument may have been raised, however, we believe that 

criminalizing carjacking was a wholly reasonable and appropriate 

response to the problem. 
36 

 In addition to their complaints about the 

Congressional findings, Bishop and Stokes also protest that there 

was no showing that they were members of a criminal enterprise or 

sophisticated car theft ring. Bishop Supp. Br. 5. This 

argument, too, misconceives Congressional power. It is within 

Congressional authority to criminalize or regulate activities 

that, although purely local and intrastate themselves, comprise a 

class of activities that, when aggregated, substantially affect 

interstate commerce. Lopez, 115 S. Ct. at 1631; Russell v. 

United States, 471 U.S. 858, 862 (1985); Hodel v. Indiana, 452 

U.S. 314, 324 (1981); Fry v. United States, 421 U.S. 542, 547 

(1975); Perez v. United States, 402 U.S. 146, 154 (1971); 

Maryland v. Wirtz, 392 U.S. 183, 193 (1968); Wickard v. Filburn, 

317 U.S. 111, 127-28 (1942). "If interstate commerce 

[ultimately] feels the pinch, it does not matter how local the 

operation which applies the squeeze." United States v. Women's 

Sportswear Mfg. Ass'n, 336 U.S. 460, 464 (1949). Since Congress 

rationally believed that carjacking, as an economic (i.e. profitmaking) activity, substantially affects interstate commerce, we 

do not "have the power to excise, as trivial, individual 

instances falling within [that] rationally defined class of 

activities . . . ." Maryland v. Wirtz, 392 U.S. at 193. 

(e) 

 Bishop and Stokes finally argue that permitting the 

federal government to criminalize carjacking would be an 

"unwarranted intrusion into the states' primary authority to 

define and enforce criminal law." Bishop Supp. Br. 7. Yet 
37 

again, appellants lean on Lopez, but find no support. Obviously, 

this statute is a criminal law, and by virtue of that fact it 

intrudes upon states' traditional dominion over the criminal law. 

Lopez, 115 S. Ct. at 1631 n.3 ("Under our federal system, the 

`States possess primary authority for defining and enforcing the 

criminal law'"). Yet not every federal foray into criminal law 

is invalid. Here, we believe that there is no great upset of the 

careful balance of federalism. 

 Congress recognized that auto theft had traditionally 

been combatted on the state level, but found that auto theft 

(including carjacking) was a national problem with a substantial 

impact upon commerce, and that state efforts to combat auto theft 

had failed to halt the growth of the auto theft industry. Supra

pp. 23-26. In the same Act in which it criminalized carjacking, 

Congress mandated funds to support local anti-car theft efforts 

and created a federal/state task force to address issues involved 

in the problem. Thus, Congress did not ignore its "sworn 

obligation to preserve and protect the Constitution in 

maintaining the federal balance . . . ." Lopez, 115 U.S. at 1639 

(Kennedy, J., concurring). Instead, exercising its "substantial 

discretion and control over the federal balance" (id. at 1639), 

Congress determined that the national problem warranted the 

enactment of curative legislation. We see this not as wrongful 

usurpation, but rather reasoned, responsible legislation. 

 Nor do we believe that finding section 2119 

constitutional sets the stage for future upset of the 

federal/state balance. Local activities may become the subject 
38 

of national legislation when they are found to be part of a 

national problem with a substantial impact upon interstate 

commerce. Congress reasonably found the local activity of 

carjacking to be a part of the national auto theft problem, and 

it criminalized carjacking as one rather minor aspect of a 

comprehensive effort to solve that problem.0 Finding that 

section 2119 passes constitutional muster does not suggest that 

every local criminal activity may be criminalized by Congress, or 

even that every such activity that results in economic gain may 

be criminalized. It does suggest that if a criminal activity is 

rationally believed to be one of the conduits of a nationwide and 

international pipeline of illegal activity, Congress may 

justifiably step in and regulate that activity although it is 

wholly intrastate.0

 

0

 We note in passing that President Bush's statement upon 

signing the Anti Car Theft Act of 1992 singled out the carjacking 

provision for particular praise, noting that "[t]his bill makes 

armed carjacking a Federal offense. The recent wave of these 

carjackings has made the need for action clear." Statement By 

President George Bush Upon Signing H.R. 4542, 28 Weekly Comp. of 

Pres. Doc. 2122 (Nov. 2, 1992). We would find this of relatively 

minor significance but for the fact that the Supreme Court in 

Lopez specifically noted President Bush's concern upon signing 

the Gun-Free School Zone Act that, "[m]ost egregiously," the 

possession statute "inappropriately overrides legitimate state 

firearms laws with a new and unnecessary Federal law. The 

policies reflected in these provisions could legitimately be 

adopted by the States, but they should not be imposed upon the 

States by Congress." See Lopez, 115 S. Ct. at 1631 n.3, quoting 

Statement of President George Bush on Signing the Crime Control 

Act of 1990, 26 Weekly Comp. of Pres. Doc. 1944, 1945 (No. 29, 

1990). 

0

 In this way, section 2119 is no less intrusive into areas 

traditionally reserved for state supervision than was the 

loansharking law upheld in Perez v. United States, 402 U.S. 146 

(1971) -- a case cited approvingly and relied upon throughout 

Lopez. See Lopez, 115 S. Ct. at 1629-31. In Perez, Congress had 
39 

2. 

 Unlike the statute in Lopez, section 2119 contains a 

"jurisdictional element" which ostensibly limits its application 

to activities substantially related to interstate commerce. 

Relying upon United States v. Bass, 404 U.S. 336 (1971), and 

Scarborough v. United States, 431 U.S. 563 (1977), the government 

contends that because section 2119 requires the government to 

prove beyond a reasonable doubt that the carjacking victim's 

motor vehicle "has been transported, shipped or received in 

interstate or foreign commerce," the requisite interstate nexus 

is shown in every case in which conviction is secured. This 

jurisdictional element, the government contends, wholly 

distinguishes Lopez and renders section 2119 constitutional. We 

agree. The mere presence of a jurisdictional element, however, 

does not in and of itself insulate a statute from judicial 

scrutiny under the Commerce Clause, or render it per se

constitutional. To the contrary, courts must inquire further to 

determine whether the jurisdictional element has the requisite 

 

criminalized loansharking because it believed it to be a 

significant means by which enterprises engaged in organized crime 

"launder" the proceeds of their illegal activities. Perez, 402 

U.S. at 149-50, 155-56. The law did not require the government 

to prove that a particular extortionate extension of credit was 

made by a racketeer or that it had anything to do with interstate 

commerce. Yet the Supreme Court found that Congress had 

reasonably believed that national efforts were required to combat 

organized crime. The Court reviewed the significant amount of 

factual data that was before Congress when it enacted the law 

(id. at 155-56), but added that it did so "not to infer that 

Congress need make particularized findings in order to legislate. 

We relate the history of the Act in detail to answer the 

impassioned plea of petitioner that all that is involved in 

loansharking is a traditionally local activity" (id. at 156-57). 
40 

nexus with interstate commerce. Lopez, 115 S.Ct. at 1631 

(stating that the statute at issue had "no express jurisdictional 

element which might limit its reach to a discrete set of firearm 

possessions that additionally have an explicit connection with or 

effect interstate commerce."). We must, therefore, determine 

whether the jurisdictional component in this case limits the 

statute to items that have an explicit connection with, or effect 

upon, interstate commerce. We conclude that it does. 

 Because section 2119 is limited to cars that have 

traveled in interstate or foreign commerce, the Supreme Court's 

decisions in Bass and Scarborough compel the conclusion that the 

jurisdictional element in section 2119 provides a nexus 

sufficient to protect the statute from constitutional infirmity. 

In Bass, the Court interpreted former 18 U.S.C. § 1202(a) (now 18 

U.S.C. § 922(g)(1)), which had criminalized a felon's "recei[pt], 

possess[ion], or transport[ation] in commerce or affecting 

commerce . . . [of] any firearm." Bass, 404 U.S. at 337. Bass, 

a convicted felon, was convicted of possessing firearms, but the 

government had not alleged or proven that the firearms had been 

possessed in commerce or affecting commerce. Before the Supreme 

Court, the government contended that it need not do so, since the 

phrase "in commerce or affecting commerce" modified only 

"transportation," and not "receipt" or "possession." The Court 

found the statute to be ambiguous, and therefore applied two 

rules of construction. First, the Court determined that, 

following the rule of lenity, it should construe section 1202(a) 

to require the government to prove that the "receipt" or 
41 

"possession" of a firearm were "in commerce or affecting 

commerce," just as it had to prove that a "transportation" of 

firearms met that qualification. Id. at 347-48. Second, it 

applied the rule that "unless Congress conveys its purpose 

clearly, it will not be deemed to have significantly changed the 

federal-state balance." Id. at 349. This principle, as well, 

counseled that the Court require the government to prove that 

Bass's possession of the firearms was in or affecting commerce. 

The government would meet this burden, the Court explained, if it 

"demonstrates that the firearm received has previously traveled 

in interstate commerce." Id. at 350. The Court recognized that 

this was "not the narrowest possible reading of the statute," but 

it found that, "given the evils that prompted the statute and the 

basic legislative purpose of restricting the firearm-related 

activity of convicted felons, the readings we give to the 

commerce requirement, although not all narrow, are appropriate." 

Id. at 351. Since the government had not sought to prove any 

interstate nexus, Bass's conviction could not stand. 

 In Scarborough, the Supreme Court revisited former 

section 1202(a), this time to describe the nature of the proof 

required of the government in order to establish that a 

possession had been "in commerce or affecting commerce." 

Scarborough had been convicted of possessing firearms as a 

convicted felon, notwithstanding his argument that "proof that 

the firearms had at some time traveled in interstate commerce did 

not provide an adequate nexus between the possession and 

commerce." Scarborough, 431 U.S. at 566. The Court framed the 
42 

question presented as "whether proof that the possessed firearm 

previously traveled in interstate commerce is sufficient to 

satisfy the statutorily required nexus between the possession of 

a firearm by a convicted felon and commerce." Id. at 564. To 

the Court, this question was one of simple statutory 

construction. The Court reiterated that "Congress is aware of 

the `distinction between legislation limited to activities "in 

commerce" and an assertion of its full Commerce Clause power so 

as to cover all activity substantially affecting interstate 

commerce.'" Id. at 571 (emphasis added), quoting United States 

v. American Bldg. Maintenance Industries, 422 U.S. 271, 280 

(1975). The Court noted that 

the purpose of [former section 1202(a)] was 

to proscribe mere possession but that there 

was some concern about the constitutionality 

of such a statute. It was that observed 

ambivalence that made us unwilling in Bass to 

find the clear intent necessary to conclude 

that Congress meant to dispense with a nexus 

requirement entirely. However, we see no 

indication that Congress intended to require 

any more than the minimal nexus that the 

firearm have been, at some time, in 

interstate commerce. 

Scarborough, 431 U.S. at 575. The Court explained that it had 

decided not to follow dicta in Bass that had suggested that there 

might be a stricter nexus requirement for possession than for 

receipt of a firearm. The Court noted that the requirement 

"would make sense, . . . but that that was not the choice 

Congress made. Congress was not particularly concerned with the 

impact on commerce except as a means to insure the 

constitutionality of [section 1202(a)]." Id. at 575 n.11. Since 
43 

the government had proven that the firearms that Scarborough had 

possessed had at some time traveled in interstate commerce, the 

Court affirmed his conviction. 

 Bass and Scarborough did not directly address 

Congressional power under the Commerce Clause, but certain 

principles are unmistakably inherent in those decisions. In both 

decisions, the Court did not believe that its construction of 

former section 1202(a) raised any constitutional concern. Indeed, 

in Bass the Court believed that its construction saved the 

statute from possible constitutional infirmity. Second, in 

Scarborough the Court equated Congress's insertion of the 

jurisdictional element in former section 1202(a) with fulfillment 

of the legislature's constitutional obligation to ensure that the 

statute fell within "its full Commerce Clause power . . . 

cover[ing] all activity substantially affecting interstate 

commerce." Scarborough, 431 U.S. at 571 (emphasis added), 575 & 

n.11. That is, although the Court in Scarborough did not 

explicate the constitutional underpinnings of its decision, it 

quite clearly found that a jurisdictional element like that in 

Scarborough ensured that each conviction had the requisite 

constitutional nexus with interstate commerce. Had that not been 

the case, the Court would have had to construe the statute more 

narrowly, so as to avoid constitutional infirmity if at all 

possible. See United States v. Five Gambling Devices, 346 U.S. 

441, 448 (1953) (plurality opinion) ("The principle is old and 

deeply imbedded in our jurisprudence that this Court will 

construe a statute in a manner that requires decision of serious 
44 

constitutional questions only if the statutory language leaves no 

reasonable alternative"). 

 In Lopez, the Supreme Court confronted a statute 

(section 922(q)) similar to former section 1202(a), but without 

any language requiring that the government prove that the gun 

possessed in the school zone had been possessed in or affecting 

commerce. The Court rued this omission, noting that the statute 

"contains no jurisdictional element which would ensure, through 

case-by-case inquiry, that the firearm possession in question 

affects interstate commerce." Lopez, 115 S. Ct. at 1631. The 

Court described Bass as an "example" of a case involving a 

statute that had such a jurisdictional element, but stated that, 

"[u]nlike the statute in Bass, § 922(q) has no express 

jurisdictional element which might limit its reach to a discrete 

set of firearm possessions that additionally have an explicit 

connection with or effect on interstate commerce." Lopez, 115 S. 

Ct. at 1631. 

 Section 2119 has an element that ensures that the motor

vehicle involved in the carjacking has "an explicit connection 

with or effect on interstate commerce" just like the firearms in 

Bass and Scarborough.

0

 In what was likely an attempt to follow 

 

0

 The fact that the motor vehicle involved in a carjacking 

had once been transported, shipped, or received in interstate or 

foreign commerce provides no less nexus between a carjacking and 

interstate commerce than the fact that a firearm once traveled in 

interstate commerce provides with respect to possession of that 

firearm by a felon. In both cases, the jurisdictional element is

not directed at the activity sought to be punished, but rather at 

an element necessary to the crime but unrelated to the culpable 

behavior. 
45 

these decisions -- and particularly Scarborough, which found that 

jurisdiction was satisfied by the mere proof that the possessed 

firearm had previously traveled in interstate commerce --Congress 

required that the government prove that the stolen motor vehicle 

"had been transported, shipped, or received in interstate or 

foreign commerce" in order to secure a conviction. 

 Appellants attempt to escape the implications of Bass

and Scarborough by arguing that jurisdictional elements like the 

one in section 2119 were construed by the Court in Lopez "to 

require a case-by-case inquiry that the criminal act in question 

affects interstate commerce." Bishop Supp. Br. 11. We do not 

believe that the Court intended that distinction, however, and we 

think it unlikely to have done so given the clear statement in 

Scarborough establishing that the jurisdictional element in 

former section 1202(a) (the travel of a firearm in interstate 

commerce) had nothing to do with the wrong sought to be curbed 

(possession of guns by felons). Scarborough, 431 U.S. at 572.0

 

0

 We thus reject any attempt to distinguish Scarborough and 

Bass on the ground that Congress, in enacting the felon-inpossession statute, was "directed ultimately at stopping the 

interstate trading of weapons which land in the hands of felons." 

Stokes Supp. Br. 11. Stokes has no authority for the proposition 

that Congress, in prohibiting possession of guns by felons, was 

aiming at the movement of guns towards felons, rather than the 

possession of guns by felons. As stated in the text, Scarborough

stated quite the opposite. 

 We also reject Stokes' attempt to distinguish Scarborough

on the ground that it dealt with firearms, which are "inherently 

deadly and dangerous objects" which Congress is empowered to 

regulate "just as it may regulate any offensive interstate 

trade." Stokes Supp. Br. 11. The dangerousness of the object is 

not the source of Congressional power; the connection to 

interstate commerce is. See generally Lopez, passim. 
46 

In Scarborough and Bass, the Court found it sufficient for 

Commerce Clause purposes for Congress to require the government 

to establish the nexus with interstate commerce by proving a 

jurisdictional element unrelated to the culpable behavior. Had 

the Court in Lopez intended to fundamentally change the law and 

require a closer connection between the jurisdictional element 

and the culpable conduct, one would have expected it to have been 

more explicit.0

 The necessary implication of Bass and Scarborough is 

that the jurisdictional element in section 2119 independently 

refutes appellants' arguments that the statute is 

constitutionally infirm. We therefore join other courts of 

appeals in upholding the statute on this ground, as well. See

United States v. Martinez, 49 F.3d 1398, 1401 n.3 (9th Cir. 

1995); (relying on Scarborough to uphold the statute); United 

States v. Johnson, 22 F.3d 106, 108-09 (6th Cir. 1994). 

B. 

 The government also argues that the statute passes 

constitutional muster under Category Two (to wit, that Congress 

can regulate instrumentalities of interstate commerce and persons 

and things in interstate commerce) because motor vehicles are 

 

0

 Until that time, we are not at liberty to overrule existing 

Supreme Court precedent. As Justice Kennedy explained, "If a 

precedent of this Court has direct application in a case, yet 

appears to rest on reasons rejected in some other line of 

decisions, the Court of Appeals should follow the case which 

directly controls, leaving to this Court the prerogative of 

overruling its own decisions." Rodriguez De Quijas v. 

Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). 
47 

"the quintessential instrumentalities of modern interstate 

commerce." Again, we agree.0

 The Supreme Court has made clear that airplanes, 

railroads, highways and bridges constitute instrumentalities of 

interstate commerce which Congress can regulate under the 

Commerce Clause. E.g. Lopez, 115 S.Ct. at 1629 (airplanes); 

Shreveport Rate Cases, 234 U.S. 342 (1914) (railroads); Alstate 

Constr. Co. v. Durkin, 345 U.S. 13 (1953) (highways); Overstreet 

v. North Shore Corp., 318 U.S. 125, 129 (1943) (intrastate bridge 

over navigable waterway).0 Congress may regulate threats to 

these instrumentalities "even though the threat may come only 

from intrastate activities." Lopez, 115 S. Ct. at 1629. 

Instrumentalities differ from other objects that affect 

interstate commerce because they are used as a means of 

 

0

 As we have previously noted (supra p. 16), Lopez involved 

only a regulation that was justified, if at all, under Category 

Three. Lopez, 115 S. Ct. at 1630. As such, Lopez does not 

affect our analysis here. See generally United States v. 

Robertson, 115 S. Ct. 1732 (1995) (noting that "effects" test has 

no role outside of cases involving intrastate activities that are 

regulated because of their substantial effects upon interstate 

commerce). 

0

 The dissent criticizes us for citing to opinions that 

interpret federal statutory language that Congress included to 

ensure the statutes did not exceed Congress' Commerce Clause 

power. However, the dissent fails to acknowledge that each 

opinion, in order to decide the statutory question involved, 

explicitly recognizes the foregoing mediums of transportation to 

be instrumentalities of interstate commerce. Moreover, unlike 

the dissent, we do not believe that the Court would conclude that 

activities which fell within each statute's jurisdictional 

language would fall outside of Congress' Commerce Clause power. 

If the Court did, it would have overlooked its own command to 

read statutes narrowly to avoid possible constitutional 

infirmities whenever possible. See United States v. Five 

Gambling Devices, 346 U.S. 441, 448 (1953) (plurality opinion). 
48 

transporting goods and people across state lines. Trains and 

planes are inherently mobile; highways and bridges, though 

static, are critical to the movement of automobiles. It would be 

anomalous, therefore, to recognize these categories of 

instrumentalities but to suggest that the similarly mobile 

automobile is not also an instrumentality of interstate commerce. 

 Notably, none of the instrumentalities we have 

mentioned are used exclusively as interstate conduits. Railroads 

often transport goods between two points within a state, 

especially in such large states as Pennsylvania, California, 

Alaska and Texas. Cessna aircraft fly from Pittsburgh to 

Philadelphia, never leaving the airspace of Pennsylvania, just as 

countless flights shuttle daily between Houston and Dallas or Los 

Angeles and San Francisco. Highways are used at least as often 

to travel within states as among them. Therefore, the fact that 

automobiles are often used for intrastate travel does not 

differentiate them from these other instrumentalities.0

 Stokes argues that "motor vehicles are not inherently 

instrumentalities of interstate commerce which justify any 

regulation which involves them in any way. Rather, they can be 

regulated as instrumentalities of interstate commerce only when 

the regulation directs itself to a specific interstate function." 

 

0

 Nor would we find it compelling if we were shown that a 

greater percentage of railcars or airplanes travel interstate on 

any given day than the percentage of automobiles that travel 

interstate on any given day. To the contrary, we are confident 

that a far greater volume of people and goods are transported 

interstate by means of motor vehicles than by railroads or 

airplanes. 
49 

Stokes Supp. Br. 8. The dissent agrees, arguing that Congress 

could only protect motor vehicles against intrastate threats such 

as carjacking if the car was traveling in interstate commerce. 

Dissent at 20.0 In Southern Ry. Co. v. United States, 222 U.S. 

20 (1911), the Supreme Court rejected the same distinction 

between vehicles that are traveling in interstate commerce and 

vehicles which, though capable of interstate travel, are 

traveling intrastate when regulated. In Southern R. Co., the 

Court recognized that Congress had the power to regulate boxcars 

that traveled exclusively intrastate because of their inherent 

mobility and connection to interstate commerce. "[I]t is no 

objection to such an exertion of [Commerce Clause] power that the 

dangers intended to be avoided arise, in whole or in part, out of 

matters connected with intrastate commerce." Id. at 26. 

Similarly, in the Shreveport Rate Cases, 234 U.S. 342 (1914), the 

Court recognized Congress' power to regulate rates for completely 

intrastate rail trips. Finally, in Overstreet v. North Shore 

Corp., 318 U.S. 125 (1943), the Supreme Court found that a wholly 

 

0

 Notably, the dissent points to the language of 18 U.S.C. 

§ 32, which prohibits destruction of civil aircraft "used, 

operated, or employed in interstate, overseas, or foreign air 

commerce." This statute does not limit its scope to civil 

aircraft which are traveling interstate at the time of attack. 

"Congress intended not only to protect civil aircraft while 

actually operating in interstate commerce, but also to protect 

such as is used or employed in interstate commerce, and also the 

parts, materials and facilities used by such aircraft." United 

States v. Hume, 453 F.2d 339, 340 (1971) (per curiam) (emphasis 

added). As § 32 thus reflects, the power to regulate 

instrumentalities of interstate commerce is the power to regulate 

vehicles used in interstate commerce, i.e. that have traveled, do 

travel, or will travel in interstate commerce whether or not they 

are actually traveling in interstate commerce when regulated. 
50 

intrastate bridge that connected an island to a road that then 

connected to an interstate highway was an instrumentality of 

interstate commerce despite the fact that goods, when they 

traveled over the bridge, necessarily traveled in intrastate 

commerce. Thus, Stokes, Bishop, and the dissent mistake 

Congress' power to regulate instrumentalities as a power to 

regulate vehicles only when those instrumentalities are being 

used in interstate commerce when Congress' power, in fact, 

derives from the objects' status as instrumentalities. 

 Stokes relies upon United States v. Heightland, 865 

F.2d 94 (6th Cir. 1989), which he believes supports his assertion 

that motor vehicles are instrumentalities of interstate commerce 

"only in their interstate role." However, in Heightland the 

Sixth Circuit was addressing whether the assault and murder of a 

truck driver at a coal mine endangered a motor vehicle "which was 

used, operated, or employed" in interstate commerce. 18 U.S.C. 

§ 33. That the truck was accosted on an intrastate journey, 

carrying coal ultimately headed to Virginia, was one factor the 

court used in determining whether the truck was used in 

interstate commerce, but the court did not state that an 

interstate destination was a requirement of the statute or of the 

Commerce Clause. Id. at 96. To the contrary, the court noted 

the broad intent of Congress to "vindicat[e] these offenses, 

which often take place in remote areas where State law 

enforcement may not be effective." Id., quoting 1984 

U.S.C.C.A.N. at 3500). Heightland certainly does not state that 
51 

motor vehicles are only instrumentalities when bound on 

interstate journeys. 

 We are also unpersuaded that intrastate air and rail 

travel can be regulated as part of a "seamless web" but motor 

vehicle travel cannot -- i.e., that poorly maintained intrastate 

boxcars endanger other instrumentalities of interstate commerce 

while carjacking does not. We recognize, of course, that 

airspace is limited and requires more careful management to 

protect interstate commerce. Yet as between boxcars and ordinary 

cars, the distinction breaks down. A carjacker in Newark does 

not differentiate between commuters from New York as compared to 

commuters from Hackensack. A resident from Cherry Hill, New 

Jersey is just as subject to carjacking in Philadelphia as a 

resident of Bucks County. In short, the danger which carjacking 

presents to the use of a motor vehicle as an instrumentality of 

commerce is presented to both interstate and intrastate drivers, 

passengers and goods.0

 As Chief Justice Taft recognized nearly three-quarters 

of a century ago, the introduction of the automobile ushered in 

"a radical change in transportation of persons and goods . . . ." 

Brooks v. United States, 267 U.S. 432 , 438 (1925). In the 

present age, cars represent Americans' primary mode of 

 

0

 The dissent argues that Congress may only regulate vehicles 

which have been hired to travel across state lines. In doing so, 

the dissent excludes from interstate commerce all commuters and 

salespeople who drive across state lines to reach their place of 

work and their costumers. We do not find such a limitation 

reasonable or warranted by any precedential authority, nor does 

the dissent cite any to support its limitation. 
52 

transportation, both within and among the States. See, e.g., 

Thoms, Amtrak: Rail Renaissance or Requiem? 49 Chi-Kent L. Rev. 

29, 30 (1972) ("The decline of railroad passenger service is a 

familiar story. The automobile has replaced all other vehicles 

as the dominant mode of transportation"). Commuters, salespeople 

and haulers rely upon motor vehicles daily to maintain the flow 

of commerce; see also U.S. Bureau of the Census, Statistical 

Abstract of the United States: 1994 at 622 Table No. 994 

(private automobiles accounted for 1,663 billion passenger-miles 

of intercity passenger traffic in 1992, whereas domestic airways 

accounted for 367, buses 24, and railroads 14). 

 As such, we can only conclude that motor vehicles are 

instrumentalities of interstate commerce. Thus, Congress may 

criminalize activities affecting their use even though the 

wrongful conduct, such as carjacking, occurs wholly intrastate. 

Because section 2119 is such a regulation, it is constitutional 

on that basis as well. 

C. 

 Appellants contend that the Supreme Court's Lopez

decision is a sharp break with the Court's precedents. According 

to them, "the Lopez decision is a strong signal to the lower 

courts to eschew a casual calculus of whether interstate commerce 

is substantially implicated in a federal statutory scheme in 

favor of a carefully considered factual determination." Bishop 

Supp. Br. 2. We, however, do not believe that Lopez calls for 

federal courts to supplant Congressional judgments with their 

own. That would, indeed, be a profound departure from prior law, 
53 

and it is important to keep in mind that Justices Kennedy and 

O'Connor, who fully concurred in the majority opinion, did not 

view the majority that way. Rather, Justices Kennedy and 

O'Connor counseled "great restraint" before a court finds 

Congress to have overstepped its commerce power, and believed the 

Court's opinion to have been a "necessary though limited 

holding." Lopez, 115 S. Ct. at 1634 (Kennedy, J., concurring). 

Thus, despite protestations to the contrary, the winds have not 

shifted that much. 

IV. 

 For the foregoing reasons, the decision of the district 

court will be affirmed. 
1 
2 

UNITED STATES OF AMERICA v. KEVIN BISHOP, No. 94-5321 and

UNITED STATES OF AMERICA v. EDWARD STOKES, No. 94-5387.

BECKER, Circuit Judge. Concurring in Part and Dissenting in Part.

 Carjacking is a heinous offense -- violent and extremely frightening. 

Accordingly, I can well understand the anger and frustration that impelled Congress 

enact 18 U.S.C. § 2119, thereby making carjacking a federal crime. Nevertheless, I 

agree with the majority that Congress had the authority to enact this statute under 

constitutional power "to regulate commerce with foreign Nations, and among the seve

States. . . . " U.S. Const., Art. I, § 8, cl. 3. 

Numerous carjackings occur in this country every year, and I acknowledge 

force of the anecdotal evidence reported by the majority to the effect that at leas

carjacked vehicles end up in "chop shops." Carjacking may therefore be said to 

contribute, in some degree, to the operation of the interstate car-theft rings that 

Congress sought to regulate by the Anti-Car-theft Act of 1992, of which § 2119 was 

A careful reading of this Act's legislative history, however, precludes any 

misidentification of the concerns that motivated Congress's enactment of this provi

Whatever justifications the majority may now proffer, it is clear that Congress ena

the carjacking statute as a response to its accurate perception of carjacking as a 

of violence. And in the a

bsence of congressional findings to the contrary -- none are in evidence here -- th

majority's conclusion that Congress could have rationally believed that prosecuting 

carjacking was an essential part of dealing with a larger economic burden on inters

commerce (i.e., interstate car-theft rings) and that carjacking itself, therefore, 

substantially affects interstate commerce, borders on gossamer. 
3 

I do not gainsay that six months ago the majority's opinion would have ca

the day. But that was before United States v. Lopez, 115 S. Ct. 1624 (1995), which

fairly read, reflects a sea change in the Supreme Court's approach to these types o

questions. That view is widely shared by the media in general and the legal press 

particular.0 In contrast, the majority views Lopez as either a narrow decision or 

something of a "sport." The majority observes, referencing the separate opinions o

Justices O'Connor and Kennedy, that "despite protestations to the contrary, the win

not shifted that much." This passage is apparently meant to suggest that Justices 

O'Connor and Kennedy form an intermediate bloc which would view Lopez as case-speci

remind my colleagues, however, that both Justices O'Connor and Kennedy joined in th

Justice's opinion. Since five is more than four, I view Lopez as a beacon that we 

follow, and the direction in which the beacon points compels my vote to invalidate 

carjacking statute as beyond the broad reach of Congress's Commerce Clause power. 

 In particular, all five justices in the Lopez majority refused to apply t

Court's previous caselaw "upholding regulations of activities that arise out of or 

connected with a commercial transaction, which viewed in the aggregate, substantial

affects interstate commerce," to "a criminal statute that by its terms has nothing 

with `commerce' or any sort of economic enterprise." Lopez, 115 S. Ct. at 1630-31. 

doing the Court required "a determination whether an intrastate activity is commerc

 

0

See e.g. Bennett L. Gershman, Judicial "Conservatism", N.Y. L. J. 2 (June 21, 1995) 

Lopez, the Court may have uprooted nearly 60 years of Commerce Clause jurisprudence

Herman Schwartz, Court Abandons Rational-Basis Test, LEGAL TIMES 25-26 (May 8, 1995) 

imposition of judicial limits on Congress' commerce clause regulation of private 

activities thus marks a major shift in judicial attitude." (emphasis added)); Dean 

L. Huffman, Lopez Pops Feds Ballooning Powers, NAT'L L. J. A21 (May 22, 1995) ("The 

holding, even as cautiously explained by Chief Justice Rehnquist . . . is, as Justi

P. Stevens says in dissent, "radical." There is no other way to reverse nearly 60 

of total deference to Congress on the meaning of the commerce clause." (emphasis ad

Stuart Taylor, Jr., Judging with Pinpoint Accuracy, THE RECORDER 10 (May 8, 1995) 

(rescribing the comment of Yale Law Professor Bruce Ackerman describing Lopez as "o

the opening cannonades in the coming constitutional revolution"). 
4 

noncommercial." Id. at 1633. If the intrastate activity is commercial, the "subst

effects" jurisprudence applies, allowing Congress to regulate the activity if it in 

aggregate substantially affects interstate commerce; otherwise, the doctrine is 

inapplicable and affords Congress no basis for regulation. In spite of Lopez's lim

on the application of its "substantial effects" jurisprudence to intrastate commerc

activity, the majority upholds the constitutionality of § 2119 by concluding that 

carjacking, a violent criminal activity, is a commercial transaction. See maj. op. 

 I disagree with this conclusion, for I read the Lopez Court's reference t

"commercial transaction" as referring to a voluntary economic exchange. I am reinf

in this view by the fact that the majority runs afoul of the Lopez Court's admoniti

any definition of "commercial" must be one that provides "real limits" on the scope 

Commerce Clause authority. Lopez, 115 S. Ct. at 1633. Yet, under the majority's b

definition of commercial transaction, Congress could clearly constitutionally feder

all intrastate car-theft, all intrastate crimes of theft, and perhaps nearly all cr

activity occurring within a state. The majority's arguments prove far too much. 

 Moreover, in the wake of Lopez, I believe that a criminal statute such as 

§ 2119, which does not involve a commercial transaction, cannot be upheld as the ma

tries to do -- by piling inference upon inference to construct from anecdotal data 

argument that carjacking is an essential part of the operation of car-theft rings. 

Rather, non-commercial enactments, such as § 2119, should only be upheld to the ext

that adequate data, available either by way of congressional findings or otherwise, 

establishes that the proscribed non-commercial activity has a sufficient relationsh

interstate commercial activity. 

 Importantly, the Supreme Court recognized in Lopez that "[u]nder our fede

system the administration of criminal justice rests with the States . . . . When C

criminalizes conduct already denounced as criminal by the States, it effects a `cha
5 

the sensitive relation between federal and state criminal jurisdiction.'" Lopez, 1

Ct. at 1631 (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1720 (1993)) (citations 

omitted).0 In this case, state law already directly governs the defendants' conduc

since New Jersey, like many of it sister states,0 has criminalized carjacking.0 In 

 

0

Similar sentiments are echoed in the recently submitted "Proposed Long Range Plan 

Federal Courts": 

Congress should commit itself to conserving the federal courts as a 

distinctive judicial forum of limited jurisdiction in our system of 

federalism. Civil and criminal jurisdiction should be assigned to the 

federal courts only to further clearly defined and justified national 

interests, leaving to the state courts responsibility for adjudicating 

all other matters. . . . In principle, criminal activity should be 

prosecuted in a federal court only in those instances in which state 

court prosecution is not appropriate or where federal interests are 

paramount. 

COMMITTEE ON LONG RANGE PLANNING -- JUDICIAL CONFERENCE OF THE UNITED STATES, PROPOSED LONG RANGE PLA

FEDERAL COURTS 23 (March 1995). See also Thomas M. Mengler, "The Sad Refrain of Tough 

Crime: Some Thoughts on Saving the Federal Judiciary from the Federalization of Sta

Crime," 43 U. KANSAS L. REV. 503 (1995). 

0

In fact, as the government concedes, the New Jersey criminal penalty exceeds the p

provided by the federal carjacking statute in this case. 

0

See, e.g. CAL. PEN. CODE § 215 (1995); 11 DEL. C. § 222 (1994); D.C. CODE § 22-2903 (1

FLA. STAT. § 812.133 (1994); BURNS IND. CODE ANN. § 35-42-5-2 (1994); LA. REV. STAT. 14:6

(1995); MD. ANN. CODE art. 27, § 348A (1994); MASS. ANN. LAWS ch. 265, § 21A (1995); MI

ANN. § 97-3-117 (1993); SOUTH CAR. CODE ANN. § 16-3-1075 (1993); VA. CODE ANN. § 18.2-58

(1995). 

0

The defendants could be prosecuted under NJ § 2C:15-2, which provides: 

 A. CARJACKING DEFINED. A person is guilty of carjacking if in the 

course of committing an unlawful taking of a motor vehicle, as defined 

in N.J.S. 39:1-1, or in an attempt to commit an unlawful taking of a 

motor vehicle he: 

 (1) inflicts bodily injury or uses force upon an occupant or person 

in possession or control of a motor vehicle; 

 (2) threatens an occupant or person in control with, or purposely 

or knowingly puts an occupant or person in control of the motor 

vehicle in fear of, immediate bodily injury; 

 (3) commits or threatens immediately to commit any crime of the 

first or second degree; or 

 (4) operates or causes said vehicle to be operated with the person 

who was in possession or control or was an occupant of the motor 

vehicle at the time of the taking remaining in the vehicle. An act 

shall be deemed to be "in the course of committing an unlawful taking 
6 

enacting this criminal statute, Congress improperly interfered with the primary aut

of New Jersey to define and enforce its criminal code. Intrastate crimes of violenc

the carjacking in this case, are properly left to the states, whose law enforcement 

agencies and courts are well suited to handle such criminal activity.0 

 In Part III I will explain in still greater detail why I conclude that th

carjacking statute cannot be justified as substantially affecting interstate commer

But before reaching that issue, I will first take up the points advanced by the gov

as the two primary bases for upholding the carjacking statute, neither of which, I 

are sufficient to uphold § 2119 under the Commerce Clause. First, I examine the 

majority's reliance on Scarborough v. United States, 431 U.S. 563, 97 S. Ct. 1963 (

and demonstrate why the fact that the Dodge Shadow carjacked here once travelled in 

interstate commerce is not a sufficient interstate nexus to render this statute 

constitutional under the Commerce Clause. Then, in part II, I explain why § 2119 c

be justified as a regulation of an instrumentality of interstate commerce. Because 

agree with the majority's discussion of the double jeopardy issue, I join in Part I

the majority's opinion, and to that extent this is a concurring as well as dissenti

opinion. 

 

of a motor vehicle" if it occurs during an attempt to commit the 

unlawful taking of a motor vehicle or during an immediate flight after 

the attempt or commission. 

B. GRADING. Carjacking is a crime of the first degree and upon 

conviction thereof a person may, notwithstanding the provisions of 

paragraph (1) of subsection a. of N.J.S. 2C:43-6, be sentenced to an 

ordinary term of imprisonment between 10 and 30 years. A person 

convicted of carjacking shall be sentenced to a term of imprisonment 

and that term of imprisonment shall include the imposition of a 

minimum term of at least five years during which the defendant shall 

be ineligible for parole. 

N.J. Stat. § 2C:15-2 (1994). 

0

Not surprisingly, local, as opposed to federal, law enforcement officials made the 

arrests in this case. 
7 

1. THE SCARBOROUGH ARGUMENT 

 In October of 1992, as a part of the Anti-Car-Theft Act, P.L. 102-519, Co

enacted 18 U.S.C. § 2119, which provides: 

Whoever, possessing a firearm as defined in section 921 of this title, 

takes a motor vehicle that has been transported, shipped or received 

in interstate or foreign commerce from the person or presence of 

another by force and violence or by intimidation, or attempts to do 

so, shall be fined under this title or imprisoned . . . . 

18 U.S.C.A. § 2119 (West Supp. 1995) (emphasis added). The majority correctly reco

that this provision differs from § 922(q), the statute involved in Lopez, since § 2

contains a jurisdictional element -- the requirement that the accused "take[] a mot

vehicle that has been transported, shipped or received in interstate or foreign com

-- which § 922(q) lacked. 

 The majority goes on to state that 

 The mere presence of a jurisdictional element, however, does not 

in and of itself insulate a statute from judicial scrutiny under the 

Commerce Clause, or render it per se constitutional. To the contrary, 

courts must inquire further to determine whether the jurisdictional 

element has the requisite nexus with interstate commerce. 

Following on, it reasons that it: 

must, therefore, determine whether the jurisdictional component in 

this case limits the statute to items that have an explicit connection 

with, or effect upon, interstate commerce. 

The court concludes that it does. 

 These protestations are laudable, but they stand in sharp contrast to the 

discussion that follows which does not support them. Rather, I believe that the 

majority's essential reasoning, like that of the Ninth Circuit in United State v. 

__ F.3d ___, ___ (9th Cir. 1995) [1995 U.S. App. LEXIS 16432], is that the presence 
8 

this statutory element itself renders § 2119 constitutional,0 reasoning which suppo

government's contention that Lopez would have been decided differently by the Court 

§ 922(q) (which prohibited the possession of a gun within a 1000 feet of a school) 

contained a requirement that the gun had at some point been transported in intersta

commerce. 

 I cannot agree that the force of the Lopez decision is so restricted. Th

because, in order for a particular congressional enactment regulating an intrastate 

activity to pass constitutional muster under the Commerce Clause, the enactment mus

fit within one of the three enumerated categories of congressional power. The 

jurisdictional element in such cases functions only to narrow the class of regulate

activity. As the Court in Lopez recognized, in distinguishing prior case law, § 92

"contains no jurisdictional element which would ensure, through case-by-case inquir

the [regulated conduct] affects interstate commerce." Lopez, 115 S. Ct. at 1631 (e

added). In other words, a jurisdictional element functions only to limit the regul

to interstate activity or to ensure that the intrastate activity which is regulated 

satisfies one of the three tests of congressional power. Section 2119 fails in thi

regard, since this provision regulates intrastate activity0 and the jurisdictional 

 

0

While the majority does not address the subject, I will assume that this jurisdict

element requires the government to establish that "a fully assembled `motor vehicle

been transported in interstate commerce rather than . . . [merely requiring a showi

that] either the `motor vehicle' or the motor vehicle's parts, prior to assembly, m

interstate commerce." United States v. Johnson, 56 F.3d 947, 956-57 (8th Cir. 1995

0

In this regard, § 2119's jurisdictional requirement is distinguishable from a requ

that the regulated entity actually be "engaged in interstate commerce." See United 

v. Robertson, 115 S. Ct. 1732, 1732-33 (1995) (per curiam) (examining the question 

a regulated entity was "engaged in interstate commerce"). If § 2119 contained such 

requirement, the government would need to establish that the defendants were in fac

working as a part of a car-theft ring engaged in interstate commerce. While such a 

requirement would render § 2119 constitutional, the statute, as enacted, simply lac

requirement that the regulated person(s) be engaged in interstate commerce. 
9 

in no way limits the statute's application to ensure that it fits within one of the 

branches of congressional Commerce Clause authority. 

 The majority, like the Oliver court, simply offers no analysis as to how 

§ 2119's jurisdictional element limits, in any relevant manner, the crime of carjac

that it fits within one of the three enumerated branches of congressional authority

Rather, both opinions rely on the decision of the Supreme Court in Scarborough v. U

States, 431 U.S. 563, 97 S. Ct. 1963 (1977), which the majority candidly admits did 

engage in any analysis of the authority of Congress to enact laws under the Commerc

Clause. 0

 As the majority recognizes, the Scarborough decision expanded upon the Co

prior opinion in United States v. Bass, 404 U.S. 336, 92 S. Ct. 515 (1971), which, 

Scarborough, involved what was then § 1202(a) of Title 18. This provision provided 

any convicted felon "who receives, possesses, or transports in commerce or affectin

commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for n

than two years, or both." In Bass, the "Government proceeded on the assumption tha

§ 1202(a)(1) banned all possessions and receipts of firearms by convicted felons, a

no connection with interstate commerce had to be demonstrated in individual cases." 

404 U.S. at 338, 92 S. Ct. at 517. In response to this argument, the defendant con

that "the statute did not reach possession of a firearm not shown to have been `in 

commerce or affecting commerce,' and that, if it did, Congress had overstepped its 

constitutional powers under the Commerce Clause." Bass, 404 U.S. at 338, 92 S. Ct. 

 

0

Indeed the majority summarily concludes: 

 Because section 2119 is limited to cars that have traveled in 

interstate or foreign commerce, the Supreme Court's decisions in Bass

and Scarborough compel the conclusion that the jurisdictional element 

in section 2119 provides a nexus sufficient to protect the statute 

from constitutional infirmity. 
10 

The Court rejected the government's interpretation of the statute, refusi

adopt the government's "broad reading in the absence of a clearer direction from 

Congress," because the statute's "sanctions are criminal and because, under the 

Government's broader reading, the statute would mark a major inroad into a domain 

traditionally left to the States." Id. at 339, 92 S. Ct. at 518. Therefore, the C

concluded that "the commerce requirement in § 1202(a) must be read as part of the 

`possesses' and `receives' offenses." Id. at 350, 92 S. Ct. at 524; id. ("Absent a 

clearer statement of intention from Congress than is present here, we do not interp

§ 1202(a) to reach the `mere possession' of firearms."). The Court reasoned that 

"[a]bsent proof of some interstate commerce nexus in each case, § 1202(a) dramatica

intrudes upon traditional state criminal jurisdiction." Id. Because the governmen

not proven even the minimal nexus that the Court held the statute to require, the C

overturned the conviction, and thus "d[id] not reach the question whether, upon 

appropriate findings, Congress can constitutionally punish the `mere possession' of 

firearms." Id. at 339 n.4, 92 S. Ct. at 518 n.4. 

 Following Bass, the Court confronted in Scarborough the question of how t

government might satisfy its statutory burden under the Bass Court's reading of the 

statute, which required that a defendant possess the weapon "in commerce or affecti

commerce."0 Through a careful parsing of § 1202(a)'s legislative history, the Cour

concluded that in order to be convicted under the statute, the government need only 

that "the firearm possessed by the convicted felon traveled at some time in interst

commerce." Scarborough, 431 U.S. at 568, 97 S. Ct. at 1966. 

 

0

In Bass, the Court noted, by way of example, that the government could satisfy thi

burden under the statute, "if at the time of the offense the gun was moving interst

on an interstate facility, or if the possession affects commerce." Bass, 404 U.S. a

92 S. Ct. at 524. 
11 

That decision, as the majority concedes, was exclusively one of statutory 

construction, explicating the intent of Congress in enacting § 1202(a). The Court'

entire analysis focused on this issue of congressional intent -- what Congress requ

the phrase "in commerce or affecting commerce." Noticeably absent from the opinion, 

majority recognizes, is any analysis of whether the activity regulated by the statu

constitutes a constitutional exercise of congressional power under the Commerce Cla

Given this fact, the relevance of the Scarborough decision to Commerce Clause 

jurisprudence is dubious.0 I agree that the Commerce Clause issue was implicit in 

result reached by the Scarborough Court, which upheld the conviction.0 However, th

majority errs in relying on a putative holding of Scarborough (perhaps "phantom hol

might be more apt) to conclude that the interstate jurisdiction element renders the 

statute constitutional under the Commerce Clause.0 

 

0

The Lopez Court observed that "[u]nlike the statute in Bass, § 922(q) has no expre

jurisdictional element which might limit its reach to a discrete set of firearm 

possessions that additionally have an explicit connection with or effect on interst

commerce." Lopez, 115 S. Ct. at 1631 (emphasis added). This statement is consiste

the requirement that the jurisdictional element limit the regulation to interstate 

activity or ensure that the regulated intrastate activity fall within one of three 

categories of congressional power under the Commerce Clause. 

0

I do note that though the Commerce Clause issue easily could have been mentioned, 

not. 

0

Notwithstanding the fact that the Court's decision in Scarborough was devoid of an

Commerce Clause analysis, the majority supports its unflinching application in this 

by relying on language in Rodriguez de Quijas v. Shearson/American Express, Inc., 4

477, 109 S. Ct. 1917 (1989), where the Court cautioned: "If a precedent of this Cou

direct application in a case, yet appears to rest on reasons rejected in some other 

of decisions, the Court of Appeals should follow the case which directly controls, 

to this Court the prerogative of overruling its own decisions." 490 U.S. at 484, 1

Ct. at 1921-22 (emphasis added). In Rodriguez, the Court of Appeals had concluded 

predispute agreement to arbitrate claims under the Securities Act of 1933" was 

enforceable, and did not "requir[e] resolution of the claims . . . in a judicial fo

despite that fact that previously in Wilko v. Swan, 346 U.S. 427, 74 S. Ct. 182 (19

the Supreme Court had held that "an agreement to arbitrate future controversies" un

Securities Act of 1933 was "void" under § 14 of that Act. Rodriguez, 490 U.S. at 4

S. Ct. at 1919. The Court of Appeals had reasoned that while subsequent Supreme Co

decisions had not directly addressed the holding of Wilko, which was directly appli

subsequent decisions had reduced Wilko to "obsolescence." Rodriguez de Quijas v. 
12 

 Even if it were proper to rely on Scarborough as Commerce Clause preceden

majority errs, in my view, in defining the scope of Scarborough's putative Commerce 

holding as broadly as it does, because § 1202(a) is distinguishable from § 2119. S

§ 1202(a)'s jurisdictional requirement could, more properly, be viewed as a rationa

restriction on the illegal interstate trade in guns pursuant to the first branch of 

Congress's Commerce Clause authority, the well established "authority of Congress t

the channels of interstate commerce free from immoral and injurious uses . . . ." L

115 S. Ct. at 1629 (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 

256, 85 S. Ct. 348, 357 (1964)). At the time of the enactment of § 1202(a), federal 

prohibited the sale of guns to felons. See 18 U.S.C. § 922(d) (1976) (providing th

shall be unlawful for a licensed gun distributor to sell or give a firearm to a per

under indictment for or convicted of a crime punishable by imprisonment for a term 

exceeding one year). A fortiori, felons who had purchased their weapons after thei

felony conviction would have done so through illegal channels. Accordingly, § 1202

which prohibited felons from possessing a gun that traveled in interstate commerce, 

have constituted a rational means for Congress to deal with illegal interstate traf

in guns. 

 Section 2119, in contrast, cannot be justified in this fashion. Its 

jurisdictional element limits the reach of the carjacking statute to automobiles th

legitimately traveled in interstate commerce. But, we cannot rationally conclude t

 

Shearson/Lehman Bros., Inc., 845 F.2d 1296, 1299 (5th Cir. 1988). While I ackno

the binding nature of this decision, it is clearly distinguishable. Scarborough, a 

decision analyzing the legislative intent surrounding the enactment of § 1202(a) (a 

statute since repealed by Congress) and devoid of any Commerce Clause analysis, sim

cannot have "direct application" in a case concerning the power of Congress to enac

federal carjacking statute under its Commerce Clause power. Moreover, while the bro

application of the statute in Scarborough is probably undermined by Lopez, my conte

that Scarborough is inapplicable to this action does not arise from the Court's dec

in Lopez. 
13 

Congress seeks to regulate legitimate interstate trade in automobiles from manufact

dealer or from dealer to victim. Rather, § 2119 extends solely to intrastate crimin

activity, which bears no rational nexus to the fact that the automobile in question 

some point legitimately shipped interstate. Hence, the jurisdictional element does 

any way rationally limit the class of activity Congress seeks to regulate. The con

motivating Congress to enact § 2119 are the same whether the automobile was manufac

within the state where the crime occurred or elsewhere.0 

 The reasoning of the majority and the Oliver court, which would essential

permit Congress to regulate any activity so long as the statute contains some inter

jurisdictional element (no matter how tenuous its relation to the regulated activit

simply too broad. The majority's holding effectively renders the Supreme Court's t

part Commerce Clause analysis superfluous, and permits Congress, through the inclus

a meaningless interstate commerce provision, to "convert congressional authority un

Commerce Clause to a general police power of the sort retained by the States." Lop

S. Ct. at 1634. For instance, the majority's logic would permit a federal law outl

the theft of a Hershey kiss from a corner store in Youngstown, Ohio by a neighborho

juvenile on the basis that the candy once traveled in interstate commerce to the st

from Hershey, Pennsylvania. Similarly, the majority's broad reading would vest Con

with power under the Commerce Clause to enact a federal law requiring students in p

schools to read their homework assignments, so long as the government establishes t

 

0

The improvidence of the majority's reliance on the jurisdictional requirement is 

demonstrated by the fact that Congress, in enacting § 2119, expressed concern that 

single week last year in Detroit, 74 cars were stolen in armed carjackings." H.R.

851, 102d Cong., 2d Sess., pt. 1, at 15, 1992 U.S.C.C.A.N. 2829, 2831. It defies l

assert that Congress rationally sought to criminalize only those carjackings occurr

Detroit which involved these relatively few cars in Michigan manufactured outside o

state. 
14 

textbooks were published in another state.0 The majority's reasoning destroys any 

"distinction between what is truly national and what is truly local." Lopez, 115 S

at 1634.0

 Accordingly, I conclude that § 2119 would constitute a constitutional exe

of congressional authority only if the intrastate activity regulated fit within one 

"three broad categories of activity that Congress may regulate under its commerce p

Lopez at 1629. In upholding this conviction, the majority relies on two of these t

categories, concluding that § 2119 is constitutional under Congress's power (1) to 

"regulate and protect the instrumentalities of interstate commerce," and (2) to reg

those activities with a "substantial effect on interstate commerce." Lopez, 115 S. 

1629-30. I take both of these rationales up in turn. 

2. INSTRUMENTALITIES OF INTERSTATE COMMERCE 

 Despite the fact that § 2119 does not govern the use of automobiles as 

instrumentalities of interstate commerce, the majority, again joining the Ninth Cir

Oliver, __ F.3d at ___, upholds the constitutionality of the statute on the theory 

 

0

See Paul D. Kamenar, The Feds Lose a Piece of Their Rock; Commerce Clause Should N

Infinite, LEGAL TIMES 25 (May 3, 1995) (recounting the criticism of commentator Georg

that under the Lopez dissent's broad reading of Commerce Clause authority, Congress 

"pass a federal law requiring students to do their homework"). 

0

In overturning § 2119 as beyond the scope of Congress's Commerce Clause authority 

United States v. Cortner, 834 F. Supp. 242 (M.D. Tenn. 1993), rev'd 30 F.3d 135 (6t

1994), Judge Wiseman had a similar view of this argument: 

To say . . . that because something once traveled in interstate 

commerce it remains in interstate commerce after coming to rest in a 

given state is sheer sophistry. . . . [I]f it is sufficient to invoke 

the powers of the Commerce Clause that something has been manufactured 

outside of the state of Tennessee and previously transported here, 90% 

of the merchandise on every merchant's shelf will qualify and any 

robbery of any store can be federalized by the Congress under this 

rationale. 

Id. at 243. 
15 

automobiles often are used as instrumentalities of interstate commerce. In so doin

majority dramatically expands the scope of Congress's power under this branch of Co

Clause authority. 

The majority correctly recognizes that "Congress is empowered to regulate 

protect the instrumentalities of interstate commerce, or persons or things in inter

commerce, even though the threat may come only from intrastate activities." Lopez, 

Ct. at 1629. However, in crafting the scope of this category of congressional auth

courts have, to date, appropriately limited its application to congressional regula

instrumentalities actually engaged in interstate commerce, or objects such as railc

railway bridges, which are integrally related to an interstate commerce network. W

automobiles can indeed be used to engage in interstate commerce (and an automobile 

not be travelling interstate to be used in interstate commerce), the federal carjac

statute, unlike those statutes upheld in prior cases, in no way regulates 

instrumentalities in any way engaged in interstate commerce. Rather, § 2119 is a cr

statute of general application, which, by its terms, lacks any nexus to the use of 

automobiles in interstate commerce. 

In my view, congressional authority under this branch of its Commerce Cla

power has been shaped by two cases, cited by the Supreme Court in Lopez -- Southern 

Railroad Co. v. United States, 222 U.S. 20, 32 S. Ct. 2 (1911) and Shreveport Rate 

234 U.S. 342, 34 S. Ct. 833 (1914) -- and by a statement in dicta in Perez v. Unite

States, 402 U.S. 146, 150, 91 S. Ct. 1357, 1359 (1971) (Perez was a "substantial ef

decision, see discussion infra). 

 The first of these cases, Southern R.R., involved the application of the 

Appliance Act to a non-conforming railroad car used solely for hauling within one s

on "`a part of a through highway' over which traffic was continually being moved fr

State to another." 222 U.S. at 23, 32 S. Ct. at 3. The Court upheld the applicati
16 

the regulation to the intrastate railcars, since such a close relationship existed 

the intra- and inter- state traffic that congressional power could be "exerted to s

the safety of the persons and property transported" in interstate commerce, even th

the "dangers intended to be avoided arise, in whole or in part, out of matters conn

with intrastate commerce." Id. at 27, 32 S. Ct. at 4. 

 Similarly, in the Shreveport Rate Cases, the Court upheld the ICC's abili

regulate the "relation" between inter- and intra- state rail rates by requiring an 

increase in the price of the intra-state rate. In both these cases the Court was 

concerned with the regulation of "intrastate transactions of interstate carriers". 

Shreveport Rate Cases, 234 U.S. at 353, 34 S. Ct. at 837 (emphasis supplied). Give

caselaw, the majority's conclusion that § 2119 constitutes a regulation of an 

instrumentality of interstate commerce because cars can be used as instrumentalitie

interstate commerce dramatically extends congressional power under this category of 

authority. 

 The Supreme Court's discussion in Perez v. United States, 402 U.S. at 150

Ct. at 1359, is not to the contrary. In Perez, the Court recognized that Congress 

protect the "instrumentalities of interstate commerce, as for example, the destruct

an aircraft (18 U.S.C. § 32)." Id. at 150, 91 S. Ct. at 359. At the time of Perez

provided a criminal penalty for "[w]hoever willfully sets fire to, damages . . . an

aircraft used, operated, or employed in interstate, overseas, or foreign air commer

While the majority correctly recognizes that motor vehicles are often used as 

instrumentalities of interstate commerce (e.g., commercial trucking, interstate bus 

services, travelling salespeople, and even perhaps commuters), § 2119, unlike 18 U.

§ 32, does not involve the protection of an item used as an instrumentality of inte
17 

commerce.

0

 If § 2119 were limited, like § 32, to the carjacking of automobiles "en

in interstate commerce," this statute would indeed proscribe interference with an i

being used as an instrumentality of interstate commerce, which Congress could prope

regulate under this branch of Commerce Clause authority. However, § 2119's scope i

dramatically broader, given that it governs all automobiles (regardless of their 

connection to interstate commerce) including those, like the one involved in this c

which are clearly not being used as instrumentalities of interstate commerce. 

It is enough for the majority that intrastate carjacking threatens both i

and out-of-state motorists. But to reiterate, this is not the proper focus under th

prong of Commerce Clause analysis. In regulating under this branch of authority, C

can protect instrumentalities of interstate commerce. The fact that a motorist fro

Cherry Hill, New Jersey, is subject to a risk of carjacking in Philadelphia, does n

convert this motorist's automobile into an instrumentality of interstate commerce 

equivalent to a commercial train or airplane transporting passengers and goods both 

and intra-state.0 The regulation of air and rail travel is simply not a vali

analogy. Such federal regulation is proper since both airplanes and trains are, ne

exclusively, used as instrumentalities of interstate commerce -- that is, air and r

travel involves, overwhelmingly, the sale of both inter- and intra-state transporta

 

0

The majority recognizes this important distinction between the carjacking statute 

U.S.C. § 32 in dismissing Stokes' reliance on United States v. Heightland, 865 F.2d 

(6th Cir. 1989). See maj. op. at 49. 

0

In Cortner, Judge Wiseman recognized that, 

[i]f anything that will take you across a state line is an 

"instrumentality of commerce," then there is justification for 

Congress to regulate anything done on a bicycle or, for that matter, 

on foot. The Framers traveled to Philadelphia on horseback or by 

horse and carriage. Can it be imagined that in constructing the 

Commerce Clause they intended to regulate and punish horse stealing? 

834 F. Supp. at 243. 
18 

services for persons and/or cargo.0 We do not deal here with the ability of Congres

regulate or protect intra- and inter-state bus or commercial truck travel. Such reg

is clearly proper, since it, in contrast to § 2119, would involve the regulation of 

instrumentalities of interstate commerce. Rather, we deal here with a regulation 

governing all automobiles in all instances. 

In reaching its conclusion, the majority misreads the scope of existing S

Court precedent. Foremost, its reliance on Alstate Const. Co. v. Durkin, 345 U.S. 

S. Ct. 565 (1953) and Overstreet v. North Shore Corp., 318 U.S. 125, 63 S. Ct. 494 

is simply misplaced. These cases address the question whether, pursuant to a statu

regulating an entity "engaged in interstate commerce," the regulated entity in fact 

within this statutory requirement. As the Court explained, Overstreet was 

another case in which we must define the scope of the Fair Labor 

Standards Act. The precise question is whether petitioners, who are 

engaged in maintaining or operating a toll road and a drawbridge over 

a navigable waterway which together constitute a medium for the 

interstate movement of goods and persons, are "engaged in commerce" 

within the meaning of §§ 6 and 7 of the Act, . . . [where] "commerce" 

[is defined as] "commerce . . . among the several States." 

318 U.S. at 126 & n.2, 63 S. Ct. at 495-96 & n.2 (footnote and citations omitted). 

Court concluded that they were. 

 Alstate was a similar case. Alstate was a road contractor which also 

manufactured a road surfacing material. Most of its work was to install the materia

railroads and interstate roads. The Court observed that: 

 

0

To the extent that federal aviation regulation governs non-commercial aircraft, a 

distinction from the regulation of automobiles remains, given that the use of noncommercial airplanes dramatically implicates the safety of interstate commercial ai

travel, which depends on the regulation of all planes using our nation's air space 

manner not present in the regulation of automobiles. See Northwest Airlines v. Min

322 U.S. 292, 303, 64 S. Ct. 950, 956 (1944) (Jackson, J., concurring) ("Air as an 

in which to navigate is even more inevitably federalized by the commerce clause tha

navigable water. . . . Congress has recognized the national responsibility for reg

air commerce. Federal control is intensive and exclusive."). 
19 

he who serves interstate highways and railroads serves commerce. By 

the same token he who produces goods for these indispensable and 

inseparable parts of commerce produces goods for commerce. We 

therefore conclude that Alstate's off-the-road employees were covered 

by the Fair Labor Standards Act because engaged in "production of 

goods for commerce." 

 As the Supreme Court once again clarified in United States v. Robertson, 

Ct. 1732, 1732-33 (1995) (per curiam), the question whether an entity is "engaged i

interstate commerce" under an applicable statute is a question quite different from 

whether a statute, lacking any such requirement, otherwise falls within Congress's 

Commerce Clause authority. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 19

95 S. Ct. 392, 399 n.12 (1974) ("The jurisdictional inquiry under [a statute], turn

it does on the circumstances presented in each case and requiring a particularized 

judicial determination, differs significantly from that required when Congress itse

defined the specific persons and activities that affect commerce and therefore requ

federal regulation." (emphasis added)). 

 The Court in Overstreet did bolster its conclusion that the bridge operat

engaged in interstate commerce by the fact that it operated a bridge which "constit

a medium for the interstate movement of goods and persons." Overstreet, 318 U.S. a

63 S. Ct. at 496. However, the application of the statute to the entities in both 

Overstreet and Alstate rested first and foremost on the Court's statutory conclusio

the business was "engaged in interstate commerce." Id., Alstate, 345 U.S. at 15-16

S. Ct. at 567. 

 In sum, the majority and the Oliver court reason that because cars are so

used as instrumentalities of interstate commerce, Congress can regulate any aspect 

automobiles (and automobile traffic) under this branch of congressional authority. 

Federal power under the Commerce Clause, in my view, is not this broad. The fact t

automobiles can be used as instrumentalities of interstate commerce does not grant 
20 

Congress plenary authority to regulate the use and operation of every individual's 

automobile. Such an approach would constitute a dramatic encroachment on the regul

of automobiles, a traditional area of state concern, and would permit Congress to p

federal laws requiring individuals to wear seatbelts (as opposed to requiring that 

manufactured with seatbelts) or banning motorists from making a right turn at a red 

light.0 Previous Commerce Clause jurisprudence has never before viewed congression

power to regulate the instrumentalities of interstate commerce this broadly. With 

decision, the majority dramatically and improperly enhances the scope of federal po

under this branch of Congress's Commerce Clause authority. 

3. SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE 

The majority's principal justification in upholding the constitutionality 

§ 2119 is that Congress could have rationally concluded that carjacking has a subst

effect on interstate commerce. In its discussion, the majority does an excellent j

recounting the congressional findings with regard to the entire Anti-Car-Theft Act. 

maj. op. at 21-23. However, by recounting this legislative history, the majority co

the relevant issues. We do not deal here with the constitutionality of this entire 

with the effect of car-theft rings, in the whole, on the economy. Rather, our conc

with whether Congress could have rationally concluded that carjacking substantially 

affects interstate commerce through its role in interstate car-theft operations. 

 

0

I note in this regard that existing federal automobile regulation of this genre (i

the federal speed limit) has been exerted under the Spending Clause, not the Commer

Clause. See 23 U.S.C. § 154 (Supp. 1995) (conditioning receipt of federal highway 

on a state's enforcement of federally-imposed speed limits). It has long been reco

that "`the power of Congress to authorize expenditure of public moneys for public p

is not limited by the direct grants of legislative power found in the Constitution.

South Dakota v. Dole, 483 U.S. 203, 207, 107 S. Ct. 2793, 2796 (1987) (quoting Unit

States v. Butler, 297 U.S. 1, 66 (1936)). 
21 

Section 2119's legislative history is devoid of any findings in this rega

which should come as no surprise, since in enacting this provision Congress was con

not with the economic effects of carjacking or with the relationship between carjac

and interstate car-theft operations, but rather with curtailing this well-publicize

of violence. This intent is abundantly clear from the legislative history cited by 

majority: "In addition to economic costs, car owners are increasingly subject to vi

crime. The most recent developments in car-theft is `armed carjacking.'" H.R. REP

102-851, 102d Cong., 2d Sess., pt. 1, at 15 (1992), reprinted in 1992 U.S.C.C.A.N. 

2831 (emphasis added); id., pt. 3, at 2, 1992 U.S.C.C.A.N. at 2895 ("Perhaps relati

the opportunity for profit, criminals are increasingly committing violent crime in 

form of `armed carjacking.'"); see also 138 CONG. REC. H11,819 (1992) (statement of 

Ramstad) ("People are outraged and terrified by the heinous carjacking epidemic cur

upon us. How can any civilized nation tolerate the brutal killing of a mother drag

miles to her death . . . ? How can any civilized people tolerate such despicable, 

outrageous criminal acts? They cannot and they will not."); id. at H11,820 (statem

Rep. Collins) ("The most shocking case, involv[ing] a young mother who was dragged 

miles to her death . . . has absolutely galvanized public opinion and outcry that t

Congress act now to address this awesome despicable crime."). 

 Given this legislative history, it is clear that § 2119 was enacted to de

carjacking as a crime of violence, not, as the majority now contends, to confront t

effects of carjacking on the interstate economy. Congress has not made any finding

support the conclusion that carjacking has a substantial effect on interstate comme

Congress made no such findings since, as the majority surmises, maj. op. at 42, Con

viewed § 2119's jurisdictional requirement, discussed supra at 7-16, as constitutio

sufficient. I recognize that "Congress need [not] make particularized findings in 

to legislate." Perez, 402 U.S. at 156, 91 S. Ct. at 1362 (cited in Lopez, 115 S. C
22 

1631 ("Congress is normally not required to make formal findings as to the substant

burdens that an activity has on interstate commerce.")). Accordingly, I point to t

of congressional findings only to demonstrate, that like the statute in Lopez, no s

findings are available to support the government's contention that the intrastate a

has a substantial effect on commerce. See Lopez, 115 S. Ct. at 1630-32 ("[T]o the 

that congressional findings would enable us to evaluate the legislative judgment th

activity in question substantially affected interstate commerce, even though no suc

substantial effect was visible to the naked eye, they are lacking here."). 

Given the lack of congressional findings, the majority constructs for Con

an argument that carjacking has a substantial effect on interstate commerce. The 

majority's argument is essentially two-fold; it contends: (1) that carjacking, itse

a commercial transaction which, in the aggregate, substantially affects interstate 

commerce; or (2) that Congress could have rationally concluded that § 2119 was a ne

element in thwarting the operation of car-theft rings, which Congress found to 

substantially affect interstate commerce. 

In the first instance, the majority submits that carjacking can be upheld 

regulation of an intrastate commercial transaction which, through repetition, has a 

substantial effect on interstate commerce. Maj. op. at 26-27 & n.20 (citing Hodel 

Indiana, 452 U.S. 314, 325 (1981)). In so doing, the majority runs afoul of Lopez.

 Importantly, the Court in Lopez concluded that the regulation of non-econ

intrastate activity could not be upheld under its cases dealing with the "regulatio

activities that arise out of or are connected with a commercial transaction, which 

in the aggregate, substantially affects interstate commerce." Lopez, 115 S. Ct. at 

In limiting the application of its "substantial effects" jurisprudence to intrastat

economic or commercial activity, the Court recognized that its prior caselaw in thi

satisfied this limitation: 
23 

we have upheld a wide variety of congressional Acts regulating 

intrastate economic activity where we have concluded that the activity 

substantially affected interstate commerce. Examples include the 

regulation of intrastate coal mining; Hodel, supra, intrastate 

extortionate credit transactions, Perez, supra, restaurants utilizing 

substantial interstate supplies, McClung, supra, inns and hotels 

catering to interstate guests, Heart of Atlanta Motel, supra, and 

production and consumption of home-grown wheat, Wickard v. Filburn, 

317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942). These examples are 

by no means exhaustive, but the pattern is clear. Where economic 

activity substantially affects interstate commerce, legislation 

regulating that activity will be sustained. 

Lopez, 115 S. Ct. at 1630. 

 In articulating this important limitation on its Commerce Clause jurispru

the Lopez court "admitted[] [that] a determination whether an intrastate activity i

commercial or noncommercial may in some cases result in legal uncertainty." Id. at 

But the Court recognized that "so long as Congress' authority is limited to those p

enumerated in the Constitution, and so long as those enumerated powers are interpre

having judicially enforceable outer limits, congressional legislation under the Com

Clause always will engender `legal uncertainty.'" Id. Following Lopez, the Court 

United States v. Robertson reiterated this new important limitation on its substant

effects jurisprudence: "The `affecting commerce' test was developed in our jurispru

to define the extent of Congress's power over purely intrastate commercial activiti

nonetheless have substantial interstate effects." 115 S. Ct. at 1733 (emphasis add

The majority concludes that the Court's limitation of its substantial eff

jurisprudence to intrastate commercial or economic activity does not preclude appli

of the doctrine to § 2119 since, in the majority's view, carjacking is a commercial 

transaction. In reaching this conclusion, the majority's analysis evidences none o

"legal uncertainty" that concerned the Court in Lopez, 115 S. Ct. at 1633, since it 

sufficient for the majority that "[w]hen a criminal points a gun at a victim and ta

or her car, the criminal has made an economic gain and the victim has suffered an 
24 

undeniable substantial loss." Maj. op. at 27. The majority then attempts to measu

"economic effect" of carjacking by concluding that it is equivalent to the sum of t

value of all carjacked automobiles. See maj. op. at 32 n. 20. In my view, the maj

definition of commercial transaction is too broad and thereby runs afoul of the Lop

Court's requirement that the definition of "commercial" provide "real limits" on th

of Commerce Clause authority. 115 S. Ct. at 1633 (rejecting the primary dissent's 

contention that "Congress could rationally conclude that schools fall on the commer

side of the line," on the grounds that such a "rationale lacks any real limits beca

depending on the level of generality, any activity can be looked upon as commercial

The majority sweeps within its definition of commercial activity all crim

acts which involve a coercive (non-consensual) transfer of economic benefit from vi

perpetrator. A definition of this breadth would not only include carjacking, but a

would clearly include all crimes of theft. Indeed, if Chief Judge Posner is correct

perhaps it includes all criminal activity. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LA

18 (4th ed. 1992) (contending that "[m]urder, robbery, burglary, larceny, rape, ass

and battery, mayhem, false pretenses, and most other common law crimes (i.e., crime

punishable under the English common law)" all "represent a pure coercive transfer e

of wealth or utility from victim to wrongdoer"). While I concede that it is far fr

clear what the Court meant in Lopez by a "commercial transaction," I submit that th

preferable definition of commercial transaction requires an activity involving a vo

economic exchange.0 To define a commercial transaction as broadly as the majority 

any activity involving a transfer of wealth from victim to wrongdoer -- is to embra

 

0

The Court's decision in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82 (1942), "pe

the most far reaching example of Commerce Clause authority over intrastate activity

Lopez, 115 S. Ct. at 1630, is not to the contrary. Wickard dealt with the producti

consumption of home grown wheat, an activity that undeniably bears a connection wit

voluntary economic exchange -- the need vel non of the regulated entity (the farmer

purchase wheat in the market place. See Wickard, 63 S. Ct. at 84, 90-91. 
25 

Commerce Clause jurisprudence that includes within its scope a broad array of crimi

activity, which "[u]nder our federal system, the States possess primary authority f

defining and enforcing . . . ." Lopez, 115 S. Ct. at 1630-31 (internal quotation m

omitted). 

The majority's second "substantial effects" argument is somewhat distinct 

its first. It contends that Congress could have rationally concluded that carjacki

"an essential part of a larger regulation of economic activity, in which the regula

scheme could be undercut unless the intrastate activity were regulated." Id. at 16

the majority's view, Congress could have concluded that criminalizing carjacking wa

essential part of the regulation of car-theft rings, which are interstate commercia

enterprises that Congress found to have a substantial effect on interstate commerce

Given the lack of congressional findings on the nexus between carjacking 

car-theft rings, the majority constructs its argument from anecdotal evidence drawn 

newspaper reports suggesting that some carjackers have sold automobiles into car-th

rings. In addition, the majority relies on police reports and some statements by 

congressmen that suggest that modern anti-theft devices have made it easier to carj

many vehicles than to steal them when they are parked. The majority also relies on 

Department of Justice Report on carjacking. See An Analysis of Carjacking in the U

States (Oct. 14, 1992). Such reliance is misplaced, given that the thrust of this 

directly undercuts the majority's contention that carjacking forms a part of the op

of car theft rings. 

After discussing car theft rings (i.e., chop shops, salvage switching of 

identification numbers, exportation, and insurance fraud), the report states: 

 In each of the above instances, there was relatively little 

danger to the American public as the sole motive was to obtain the 

vehicle for its value. In contrast, the new carjacking problem is 

more akin to the violent street crimes associated with street gangs 

and the drug subculture. . . . 
26 

 The primary motives appear to be transportation for a getaway 

after robbing the driver, a source of transportation to commit another 

crime, joyriding, and to a lesser degree, to derive a profit from the 

resale of the vehicle or its parts. 

Department of Justice, An Analysis of Carjacking in the United States (Oct. 14, 199

2-3 (emphasis supplied) ("The San Juan Division notes that only eight percent of th

vehicles carjacked in their division are recovered suggesting that they are either 

chopped, replated, or exported.") 

From these several sources, the majority reasons that carjacking is becom

more effective way for car-theft rings to steal cars. Maj. op. at 29. While the m

has done a fine job in constructing this argument in its attempt to preserve the 

constitutionality of § 2119, I cannot agree that Congress could have rationally con

that carjacking constitutes conduct that contributes significantly to the operation 

car-theft operations. This is especially so in view of the fact that the number of 

reported carjackings at the time of the enactment of the Anti-Car-theft Act of 1992 

constituted less than 2% of the number of autos stolen in this country on an annual 

basis.0 

The majority draws the legal support for its argument from the Court's op

in Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357 (1971), where, as the major

recognizes, the Court upheld a criminal loan sharking provision because Congress co

that intrastate loan sharking constituted a significant aspect of the operation of 

organized crime, which had an adverse effect on interstate commerce. While the leg

framework of the majority's argument is similar to Perez, this case is clearly 

 

0

See Department of Justice, An Analysis of Carjacking in the United States (Oct. 14

at 33; Nancy Gibbs, Hell on wheels; Car Crime is no longer a matter of stealing par

of taking lives -- and an American icon becomes less and less of a sanctuary, TIME 

(August 16, 1993) ("The FBI estimates that there were 25,000 carjackings last year 

[which] is still only a tiny fraction of the 1.6 million annual car thefts."). 
27 

distinguishable, since in Perez the Court relied on extensive congressional finding

"grew out of a `profound study of organized crime, its ramifications and its implic

undertaken by some 22 Congressmen," id. at 155, 91 S. Ct. at 1362 (quoting 114 CONG

at 14391). These findings in turn relied on an executive branch report stating "th

sharking was `the second largest source of revenue for organized crime,' and is one 

which the underworld obtains control of legitimate businesses." Id. (quoting THE CH

OF CRIME IN A FREE SOCIETY, A REPORT BY THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATI

JUSTICE 190 (February 1967)). 

 The Perez Court recognized that these findings "supplied Congress with th

knowledge that the loan shark racket provides organized crime with its second most 

lucrative course of revenue, exacts millions from the pockets of people, coerces it

victims into the commission of crimes against property, and causes the takeover by 

racketeers of legitimate businesses." 402 U.S. at 156, 91 S. Ct. at 1362 (emphasis 

added). Given these findings, the majority cannot assert that the role of carjacki

the operation of inter-state car-theft rings approaches anywhere near the essential 

of loan sharking in the operation of organized crime. Indeed, in constructing its 

argument the majority can point to little more than random newspaper clippings to s

that carjacking has any relationship to interstate car-theft rings, let alone a 

relationship comparable to that of loan sharking to organized crime. Accordingly, 

cannot agree that the majority's analysis establishes a relationship between carjac

and car-theft rings of a degree that satisfies existing constitutional requirements

IV. CONCLUSION

 In sum, I believe that non-commercial intrastate crimes, even ones receiv

publicity in the national media, are a matter of state and not federal concern. Pr

courts were correct to conclude that although § 2119 "may stretch the outer limits 

Commerce Clause, under current doctrine it is not unconstitutional." United States 
28 

Overstreet, 40 F.3d 1090, 1093 (10th Cir. 1994) (emphasis added). However, after L

believe that the outer boundary has shifted, since, as I have demonstrated, Lopez i

just another Supreme Court case, but a watershed. For all of the foregoing reasons

respectfully dissent.