US v. Wilson, No. 94-CR-140.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtRene L. Wright, Rutherford Institute, Charlottesville, VA, for defendant John Robert Stambaugh
PartiesUNITED STATES of America, Plaintiff, v. George Lyman WILSON, John Robert Stambaugh, Michael M. Skott, James A. Ketchum, Robert C. Braun, and Daniel J. Balint, Defendants.
Decision Date16 March 1995
Docket NumberNo. 94-CR-140.

880 F. Supp. 621

UNITED STATES of America, Plaintiff,
v.
George Lyman WILSON, John Robert Stambaugh, Michael M. Skott, James A. Ketchum, Robert C. Braun, and Daniel J. Balint, Defendants.

No. 94-CR-140.

United States District Court, E.D. Wisconsin.

March 16, 1995.


880 F. Supp. 622

Mel S. Johnson, Asst. U.S. Atty., Milwaukee, WI, for plaintiff.

Robert J. Penegor, Penegor Law Office, Brookfield, WI, for defendant George Lyman Wilson.

Rene L. Wright, Rutherford Institute, Charlottesville, VA, for defendant John Robert Stambaugh.

Michael Skott, South Milwaukee, WI, John J. Broderick, Broderick Law Office, Syosset, NY, for defendant Michael Skott & Stand-By Counsel.

880 F. Supp. 623

Alexander Flynn, Flynn & Associates, Milwaukee, WI, for defendant James A. Ketchum.

Robert Braun, West Allis, WI, Nancy M. Barasch, Malinsky & Barasch, Kenosha, WI, for defendant Robert Braun and Stand-By Counsel.

William R. Kerner, Brusky, Kerner & Mares, Wauwatosa, WI, for defendant Daniel J. Balint.

DECISION AND ORDER

RANDA, District Judge.

This case is about Congress' authority under the Constitution to pass the Freedom of Access to Clinics Entrances Act, codified at 18 U.S.C. § 248, et seq. ("FACE"). More specifically, as charged in the Information, this case is about that portion of FACE which prohibits the non-violent physical obstruction of entrances to reproductive health services clinics.1 Because the regulation of this type of conduct through the use of the Commerce Clause power is unprecedented and would permit Congress to exceed the scope of its enumerated power, thereby upsetting the delicate federal balance embodied in the Tenth Amendment and elsewhere in the Constitution, and further because private action is unreachable under Section 5 of the Fourteenth Amendment, that portion of FACE is unconstitutional and void.2

ANALYSIS

"It is, emphatically, the province and duty of the judicial department, to say what the law is." Marbury v. Madison, 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed. 60 (1803). Indeed, "this is of the very essence of judicial duty." Id. at 178; see also, Bell v. Maryland, 378 U.S. 226, 244, 84 S.Ct. 1814, 1824, 12 L.Ed.2d 822 (1964) (Douglas, J., concurring). Therefore, though not written into the Constitution, the power of judicial review has become a bedrock principle of our jurisprudence. In exercising this power, the Court must be mindful that "the powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." Marbury, 5 U.S. at 176.3

I. THE STATUTE

The pertinent part of FACE reads as follows:

§ 248. Freedom of access to clinic entrances
(a) Prohibited activities. — Whoever —
(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services; ... shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c), except that a parent or legal guardian of a minor shall not be subject to any penalties or civil remedies under this section for such activities insofar as they are directed exclusively at the minor.
(b) Penalties. — Whoever violates this section shall —
(1) in the case of a first offense, be fined in accordance with this title, or imprisoned not more than one year, or both; ... except that for an offense involving exclusively a non-violent physical obstruction the fine shall be not more than $10,000 and the length of imprisonment
880 F. Supp. 624
shall be not more than six months or both, for the first offense....

18 U.S.C. § 248 (emphasis supplied).

Through application of this statute the Government seeks to prosecute, and thereby regulate, a private activity wholly intrastate in character, non-violent by description and definition4, without any commercial aspect, the control of which has historically and traditionally rested within the domain of local and state authorities, and which has no direct affect on interstate commerce but instead affects an activity found by Congress to be within "the stream of interstate commerce."

II. COMMERCE CLAUSE

A. Scope of Commerce Power.

The scope of Congress' power under the Commerce Clause is set forth in Hodel v. Virginia Surface Mining & Reclamation Asso., 452 U.S. 264, 276-277, 101 S.Ct. 2352, 2360-2361, 69 L.Ed.2d 1 (1981):

This power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196 6 L.Ed. 23 (1824). Moreover, this Court has made clear that the commerce power extends not only to "the use of channels of interstate or foreign commerce" and to "protection of the instrumentalities of interstate commerce ... or persons or things in commerce," but also to "activities affecting commerce." Perez v. United States, 402 U.S. 146, 150 91 S.Ct. 1357, 1359, 28 L.Ed.2d 686 (1971). As we explained in Fry v. U.S., 421 U.S. 542, 547 95 S.Ct. 1792, 1795, 44 L.Ed.2d 363 (1975), "even activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations." See Wickard v. Filburn, 317 U.S. 111, 127-128 63 S.Ct. 82, 90-91, 87 L.Ed. 122 (1942), and U.S. v. Darby, 312 U.S. 100, 120-121 61 S.Ct. 451, 460-461, 85 L.Ed. 609 (1941).

When reviewing Congress' exercise of power under the Commerce Clause, courts apply a "rational basis" test:

The task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding. * * * Thus, when Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational.

Hodel at 276-77, 101 S.Ct. at 2360 (citations omitted). Thus, "judicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress." Id.

The quick conclusion is that the foregoing defines an unlimited power, one that is unlimited both in its jurisdictional reach and in Congress' authority to set the limits of that reach. Indeed, because the Commerce power is extensive, and because the Supreme Court has rarely struck down legislation under the rational basis test, the continued expansion of that power has made it difficult for lower courts to perceive any articulable limits. However, the constant refrain in most, if not all, of the cases reviewing each new exercise of the Commerce power is that there are not only limits, but constitutionally required limits dictated by the federalist structure embodied in the Constitution:

Undoubtedly, the scope of this power must be considered in the light of our dual system of government and may not be extended so as to embrace effects on interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and
880 F. Supp. 625
what is local and create a completely centralized government.

N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893 (1937). In light of this federalist structure, the Commerce power is not and cannot be unlimited because it is only one of several defined and enumerated powers. When an exercise of that power threatens to "obliterate the distinction between what is national and what is local," it is the duty of the Court to articulate and apply constitutional limits upon that power:

... it would be a mistake to conclude that Congress' power to regulate pursuant to the Commerce Clause is unlimited. Some activities may be so private or local in nature that they simply may not be in commerce. Nor is it sufficient that the person or activity reached have some nexus with interstate commerce. Our cases have consistently held that the regulated activity must have a substantial effect on interstate commerce. Moreover, simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. Congress' findings must be supported by a "rational basis" and are reviewable by the courts.

Hodel, 452 U.S. at 310-311, 101 S.Ct. at 2391 (Rehnquist, J., concurring) (citations omitted) (emphasis supplied).

Thus, while Congress' power is plenary, this does not mean that Congress possesses the authority to reach beyond the boundaries the Constitution establishes. The power is plenary only within its sphere. For when Justice Marshall explained that the power of Congress to regulate commerce "acknowledges no limitations," he excepted those limitations that were "prescribed in the constitution." Gibbons v. Ogden, 22 U.S. 1, 196, 9 Wheat. 1, 6 L.Ed. 23 (1824). And what is prescribed in the Constitution, that which still characterizes our form of government, and that which is implicated most in Congress' exercise of the Commerce power, is the federalist structure.5

B. Rational Basis Test.

As previously stated, "the Court must defer to a Congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding." Hodel, supra. But "rational" in what sense? On one hand, it cannot mean the Court will defer to Congress only if it acts upon the "most rational" basis available to it. Federal courts do not sit as final arbiters on the wisdom of public policy. Indeed, the wisdom of a specific public policy is rarely the concern of a federal court and is certainly not...

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13 practice notes
  • U.S. v. Dinwiddie, No. 95-1803WM
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 9, 1996
    ...Mrs. Dinwiddie advances two arguments against this line of reasoning. Her first argument is drawn from United States v. Wilson, 880 F.Supp. 621 (E.D.Wis.1995), rev'd, 73 F.3d 675 (7th Cir.1995), which, though it has now been reversed, is the only opinion holding that FACE is not within Cong......
  • U.S. v. Wilson, No. 95-1871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 21, 1996
    ...Congress's power to legislate under both the Commerce Clause and Section 5 of the Fourteenth Amendment. United States v. Wilson, 880 F.Supp. 621 (E.D.Wis.1995). Every other federal court to address the issue has upheld the constitutionality of the Access Act, including two circuit courts. A......
  • U.S. v. Wall, Nos. 95-5007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 22, 1996
    ...or education where States historically have been sovereign"). See also Pappadopoulos, 64 F.3d at 526, 528; United States v. Wilson, 880 F.Supp. 621, 625-26 (E.D.Wis.), rev'd 73 F.3d 675 (7th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3669 (Mar. 20, 1996); Jeffrey Rosen, Fed Up: Gun-Fr......
  • U.S. v. McMillan, Civil Action No. 3:95-cv-633WS.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • November 22, 1995
    ...health providers, FACE protects and regulates commercial enterprises operating in interstate commerce). But see United States v. Wilson, 880 F.Supp. 621 (E.D.Wis.1995) (Congress did not have the inherent power to pass the section of FACE prohibiting nonviolent physical obstruction of entran......
  • Request a trial to view additional results
13 cases
  • U.S. v. Dinwiddie, No. 95-1803WM
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 9, 1996
    ...Mrs. Dinwiddie advances two arguments against this line of reasoning. Her first argument is drawn from United States v. Wilson, 880 F.Supp. 621 (E.D.Wis.1995), rev'd, 73 F.3d 675 (7th Cir.1995), which, though it has now been reversed, is the only opinion holding that FACE is not within Cong......
  • U.S. v. Wilson, No. 95-1871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 21, 1996
    ...Congress's power to legislate under both the Commerce Clause and Section 5 of the Fourteenth Amendment. United States v. Wilson, 880 F.Supp. 621 (E.D.Wis.1995). Every other federal court to address the issue has upheld the constitutionality of the Access Act, including two circuit courts. A......
  • U.S. v. Wall, Nos. 95-5007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 22, 1996
    ...or education where States historically have been sovereign"). See also Pappadopoulos, 64 F.3d at 526, 528; United States v. Wilson, 880 F.Supp. 621, 625-26 (E.D.Wis.), rev'd 73 F.3d 675 (7th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3669 (Mar. 20, 1996); Jeffrey Rosen, Fed Up: Gun-Fr......
  • U.S. v. McMillan, Civil Action No. 3:95-cv-633WS.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • November 22, 1995
    ...health providers, FACE protects and regulates commercial enterprises operating in interstate commerce). But see United States v. Wilson, 880 F.Supp. 621 (E.D.Wis.1995) (Congress did not have the inherent power to pass the section of FACE prohibiting nonviolent physical obstruction of entran......
  • Request a trial to view additional results

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