Constitutionality of Federal Habitual Offender Legislation

Provisions of proposed “habitual offender” legislation would be within Congress’ power 

under the Commerce Clause even though they may penalize activities which are 

entirely intrastate, if Congress has a rational basis for finding that these activities have 

some effect on interstate commerce.

November 13, 1981

MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY 

GENERAL, CRIMINAL DIVISION

This responds to your request for our views regarding the power of 

Congress to enact S. 1688. We will examine other constitutional implications of S. 1688 at a later date.

Section 2118(a) of S. 1688 (97th Cong., 1st Sess.) provides:

Whoever commits, conspires, or attempts to commit a 

robbery or a burglary in violation of the felony statutes of 

a State or of the United States while using, threatening to 

use, displaying or possessing a firearm, after having been 

twice convicted of a robbery or a burglary in violation of 

the felony statutes of a State or the United States is a 

career criminal and upon conviction shall be sentenced to 

imprisonment for life.

The bill further provides that defendants accused under this provision 

shall be admitted to bail “only as provided in capital cases” and that 

sentences under this provision shall not be suspended. It requires that 

trials occur and appeals be decided within 60 days. Additionally, section 4 contains an expression of congressional intent that the federal 

government ordinarily defer to state prosecution, but that “if the Attorney General or a United States Attorney, in consultation with appropriate State or local officials, determines that there is a significant Federal 

interest in the case and the State authorities are unlikely to secure a 

sentence of imprisonment for life, then Federal prosecution may be 

brought.”

At the outset, we would observe that the bill might be read to 

impose its substantive requirements on the states in the course of their 

conduct of state prosecution. Such an interpretation raises serious Tenth 

Amendment concerns. See National League o f Cities v. Usery, 426 U.S. 

833, 855 (1976). Although we read the bill as proposing only establish344
ment of a federal offense, to be decided in the federal courts and having 

no impact on the right of the states to enforce their own criminal laws, 

we recommend that the language of the bill be made less ambiguous in 

this regard.

If Congress has the power to legislate as it proposes in S. 1688, that 

power is derived from the Commerce Clause, which permits Congress 

to “regulate Commerce . . . among the several States.” U.S. Const., 

Art. I, §8, cl. 3. The clause grants the power to regulate not only the 

channels and instrumentalities of interstate commerce, but also those 

activities having an effect on interstate commerce. Perez v. United

States, 402 U.S. 146, 150 (1971). Because S. 1688 does not contain a 

specific interstate commerce nexus as an element of the crime, it falls 

within the category of legislation regarding activities affecting interstate 

commerce.

Congress has often legislated in the criminal field by specifically 

prohibiting activities that occur in interstate commerce, but it also has 

legislated without requiring that a connection with interstate commerce 

be proved as an element of every crime. See, e.g., 18 U.S.C. § 922(b), 

1955. Its power to do so derives from a long line of cases holding that 

even purely intrastate activity may be regulated, where that activity 

“combined with like conduct by others similarly situated, affects commerce among the states. . . .” National League o f Cities v. Usery, 426 

U.S. 833, 840 (1976), quoting Fry v. United States, 421 U.S. 542, 547 

(1975). See, e.g., Wickard v. Filburn, 317 U.S. I ll (1942).

Thus, Title II of the Consumer Credit Protection Act, which prohibits “extortionate credit transactions” or “loan-sharking,” has been declared constitutional by the Supreme Court. Perez v. United States, 402

U.S. 146 (1971). In so holding, the Court noted that “[e]xtortionate 

credit transactions, though purely intrastate, may in the judgment of 

Congress affect interstate commerce.” 402 U.S. at 154. In considering 

Title II, Congress had received extensive testimony about the connection between loan-sharking and interstate organized crime. It made 

specific findings as to this connection and further found that 

“[e]xtortionate credit transactions are carried on to a substantial extent 

in interstate and foreign commerce and through the means and instrumentalities of such commerce. Even where extortionate credit transactions are purely intrastate in character, they nevertheless directly affect 

interstate and foreign commerce.” 402 U.S. at 147 n.l.

Similarly, Congress enacted 18 U.S.C. § 1955, which makes it a federal offense to conduct, finance, manage, supervise, direct, or own a 

gambling business that: (1) is in violation of state or local law; (2) 

involves five or more persons; and (3) has operated for more than 30 

days or takes in at least $2,000 per day. This statute has been upheld 

repeatedly as within Congress’ power under the Commerce Clause. See,

e.g., United States v. Kail, 612 F.2d 443, 449 (9th Cir. 1979), cert, denied,

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445 U.S. 969 (1980); United States v. Abramson, 553 F.2d 1164, 1173 

(8th Cir.), cert, denied, 433 U.S. 911 (1977); United States v. Sacco, 491 

F.2d 995, 999-1001 (9th Cir. 1974) (en banc)-, United States v. Harris,

460 F.2d 1041, 1044-46 (5th Cir.), cert, denied, 409 U.S. 877 (1972). In 

considering the constitutionality of § 1955, the courts have applied the 

accepted test for determining whether Congress acted within its powers 

in prohibiting an entire class of activities as having an undesirable effect 

on interstate commerce: (1) “Whether Congress had a rational basis for 

finding that [the activity] affected commerce, and (2) if it had such a 

basis, whether the means it selected to eliminate that evil are reasonable 

and appropriate.” Heart o f Atlanta Motel, Inc. v. United States, 379 U.S. 

241, 258-59 (1964); Sacco, 491 F.2d at 999. The legislative history of 

§ 1955, like that of Title II, revealed specific congressional findings 

about the connections between illegal gambling and organized crime 

and interstate commerce, as well as the need for federal involvement 

for effective control of the problem. Sacco, 491 F.2d at 999.

Congress has also specifically regulated intrastate transactions in firearms, see 18 U.S.C. §§921-928, “on the theory that such transactions 

affect interstate commerce.” See Huddleston v. United States, 415 U.S. 

814, 833 (1974); Mandina v. United States, 472 F.2d 1110, 1113-14 (8th 

Cir.), cert, denied, 412 U.S. 907 (1973); United States v. Menna, 451 F.2d 

982, 984 (9th Cir. 1971), cert, denied, 405 U.S. 963 (1972). Section 

922(d)(1), for example, prohibits the sale of firearms to those under 

indictment for or convicted of felonies, without a specific requirement 

that the individual sale be in interstate commerce. This section has been 

upheld as within Congress’ powers under the Commerce Clause. United

States v. Nelson, 458 F.2d 556, 559 (5th Cir. 1972).

As you noted in your October 26, 1981, statement to the Senate 

Judiciary Committee, it may be a sufficient basis for enacting S. 1688 

that “[r]obberies and burglaries of homes, stores, businesses, and travelers directly interfere with interstate commerce by impeding the free 

flow of goods and people, and by affecting insurance rates, real estate 

values, and the general cost of operating businesses, among other 

things.” Career Criminal Life Sentence Act o f 1981: Hearings on S. 1688,

S. 1689, and S. 1690 Before the Subcomm. on Juvenile Justice o f the

Senate Comm, on the Judiciary, 97th Cong., 1st Sess. 21 (1981) (statement of D. Lowell Jensen). On the other hand, this statement may be 

so generally applicable to state and local crimes as to be unpersuasive 

as a statement of the basis for enacting S. 1688. Although the courts 

have emphasized that Congress need not make particularized findings, 

Perez, 402 U.S. at 154; Sacco, 491 F.2d at 1000, the statutes discussed 

above have contained clear statements of the federal interest involved 

(in the statute or the legislative history), and it is uncertain how far the

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commerce power extends without such specific congressional consideration. 1

Although we believe that the broad powers granted to Congress 

under the Commerce Clause would permit legislation like S. 1688 on 

the proper record, we are unable to say that S. 1688 would be considered within Congress’ powers if the statute or its history is silent on this 

matter, or if Congress’ asserted interest is one generally applicable to all 

crimes. While the commerce power is broad, it is not limitless. We do 

not believe that S. 1688, on its face, provides as certain a basis for 

congressional action as the three statutes discussed above. Therefore, 

while they provide support for enacting S. 1688, they do not decide the 

constitutional question definitively.

T h e o d o r e B. O lso n

Assistant Attorney General

Office o f Legal Counsel

1 In determining whether Congress acted withm its powers under the Commerce Clause, some cases 

have emphasized Congress’ perception that existing state control was inadequate. See, e.g.. United

States v. O'Neill, 467, F.2d 1372 (2d Cir. 1972). Although we do not believe that state inadequacy in a 

particular area is a requirement for Congress to legislate under the Commerce Clause, a congressional 

determination that state efforts are inadequate would not be unhelpful.

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