1112

Constitutionality of the Carjacking Statute

As of 1996 all challenges to the constitutionality of the carjacking statute have failed. Nevertheless, prosecutors should be aware that the "commerce" nexus utilized by the Congress in the carjacking statute, namely that the motor vehicle has been transported in interstate or foreign commerce at some point of time prior to the completion of the carjacking offense, is an extremely broad assertion of Federal jurisdiction. In light of United States v. Lopez, ___ U.S.____, 115 S.Ct. 1624 (1995), the commerce nexus in the carjacking statute is likely to be continued to be challenged until the Supreme Court ultimately resolves the issue. In Lopez, the Supreme Court invalidated, as beyond the powers of Congress under the Commerce Clause, the Gun Free School Zone Act, which criminalized the possession of a firearm within 1000 feet of a school. The Supreme Court identified the three categories of activities that Congress may regulate within its Commerce Clause powers. First, Congress may regulate the use of the channels of interstate commerce. Id. at 1629. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activity. Id. at 1629. Third, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. Id. at 1629. In reviewing an act of Congress passed pursuant to the Commerce Clause, the courts traditionally defer to Congress because "the Commerce Clause grants Congress extensive power and ample discretion to determine its appropriate exercise." Lopez, ___ U.S.___, 115 S.Ct at 1634 (Kennedy, J., concurring). The proper inquiry on review is whether a rational basis existed for Congress to conclude that a regulated activity sufficiently affected commerce. United States v. Coleman, 78 F.3d 154,157 (5th Cir. 1996). Prior to the Lopez decision, numerous circuit courts had held that the carjacking statute was constitutional under the Commerce Clause. See, e.g., United States v. Martinez, 49 F.3d 1398, 1400-01 (9th Cir. 1995) (upheld section 2119 because (1) the court could not "say that Congress had no rational basis for its findings" and (2) "a present nexus between a regulated activity and interstate commerce is not required under the Commerce Clause"); United States v. Overstreet, 40 F.3d 1090, 1093 (10th Cir. 1994)(finding the nexus between section 2119 and interstate commerce in: 1) the effect of carjacking on interstate travel and the travel of foreign citizens in this country; 2) the impact of the sale of stolen cars and parts in interstate commerce; and 3) increased insurance premiums that results from carjackings), cert. denied, U.S. , 115 S.Ct. 1970 (1995); United States v. Harris, 25 F.3d 1275, 1280 (5th Cir. 1994), cert. denied, U.S. , 115 S.Ct. 458 (1994) (because of the obvious effect that carjackings have on interstate commerce, the court held that the carjacking statute was a valid exercise of Congress's Commerce Clause powers); United States v. Johnson, 22 F.3d 106, 109 (6th Cir. 1994)("carjacking as a category of criminal activity has an effect on interstate travel and the travel of foreign citizens to this country"). Subsequent to the Lopez decision, the following cases have held that the carjacking statute is a constitutional exercise of Congress' Commerce Clause authority: United States v. Coleman, 78 F.3d 154 (5th Cir. 1996)(Congress could rationally believe that activity of auto theft has substantial effect on interstate commerce); United States v. Hutchinson, 75 F.3d 626 (11th Cir. 1996)(carjacking statute constitutional, citing Williams below); United States v. Bishop, 66 F.3d 569 (3d Cir.), cert. denied, ___ U.S.___, 116 S.Ct.681 (1995)(Congress could rationally believe that activity of auto theft has substantial effect on interstate commerce); United States v. Robinson, 62 F.3d 234, 236-37 (8th Cir. 1995); United States v. Oliver, 60 F.3d 547, 549-50 (9th Cir. 1995); United States v. Williams, 51 F.3d 1004, 1008 (11th Cir 1995), cert. denied, U.S. , 116 S.Ct. 1624 (1995); United States v. Garcia-Beltran, 890 F. Supp. 67 (D. P.R. 1995) (carjacking, the violent taking of a commodity and instrumentality of commerce, affects interstate commerce). [cited in USAM 9-60.1000]