In an interesting decision last week in U.S. v. Hougen, a Ninth Circuit panel divided over the question whether Congress had authority under section two of the Thirteenth Amendment to make it a federal crime to commit, or to attempt to commit, racially motivated violence. The law at issue is 18 U.S.C. § 249(a)(1), enacted in 2009.
In his majority opinion, Judge Ronald Gould (joined by visiting district judge Edward Korman) holds that Congress had the requisite authority:
Congress’ power under the Thirteenth Amendment is broad. Section Two of the Thirteenth Amendment gives Congress the “power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” Jones v. Alfred H. Mayer Co. (1968). Under Jones, this power is subject only to a deferential test: “We must … ask whether Congress could rationally have determined that the acts of violence covered by [the law] impose a badge or incident of servitude on their victims.”
Gould concludes, consistent with “[e]very other circuit that has addressed this issue,” that “Congress rationally concluded that racial violence imposes a badge and incident of slavery on its victims.” (See slip op. at 17-20.)
In a 22-page dissent, Judge Sandra Ikuta (a Bush 43 appointee) disagrees. As she explains, while Congress has authority under section two of the Thirteenth Amendment to enact remedial and preventive measures, it cannot substantively redefine the scope of the Thirteenth Amendment right. “[N]ot every act of private discrimination or violence—however ugly it might be—is a badge or incident of slavery.” Only those acts that aim to deprive a person of the “fundamental rights of citizenship” qualify.
Because section 249(a)(1) “does not require the government to show that the purpose of the assault or battery was to deprive the victim of the fundamental civil rights of citizenship,” Ikuta argues, it is “not rationally related to the substantive guarantee of Section 1 [of the Thirteenth Amendment], which is the eradication of slavery and involuntary servitude”:
There is no constitutional right to be free from private acts of violence, even if they are committed due to a discriminatory motive. Congress could not rationally determine that private violence, which is motivated by neither a master-servant relationship between the perpetrator and victim nor a desire to deprive the victim of the fundamental rights of a free citizen, is a badge or incident of slavery.
Further:
§ 249(a)(1) is overbroad, as demonstrated most clearly by the fact that convictions could be (and have been) entered and upheld under the statute, even where the violence at issue was perpetrated against persons belonging to demographic groups that have never experienced or been at risk of slavery in this country…. [T]here is no rational basis for determining that a state-law assault committed because the victim was a Jew, a Catholic, a Muslim, a Korean, an Argentinian, a Mexican, or a white person (to name just a few of the many demographic groups that were never enslaved in this country) vindicates the Thirteenth Amendment’s ban on slavery and involuntary servitude.
Ikuta’s position has no bearing, of course, on the authority of states to outlaw racially motivated violence. She also leaves open the possibility that constitutional provisions other than the Thirteenth Amendment might provide Congress such authority.
Given what I gather to be the unanimity among the federal courts of appeals, I would not expect the Supreme Court to address this question.