The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather than providing for case-by-case proof to a jury. As the Court's decision last Term in Gonzales v. Raich illustrates, such findings-based statutes are subject to a presumption of constitutionality and will be sustained so long as the underlying legislative judgment was rational.
The conflict between legislative findings and the constitutional requirements for criminal prosecutions is ignored in the vast literature on the commerce power, which focuses overwhelmingly on whether Congress can reach certain activities (and whether courts can or should impose meaningful limits on Congress's legislative authority) but pays scant attention to how Congress legislates. Commentators assume that since Congress's power to act on the basis of its own findings regarding the connection between the regulated conduct and interstate commerce is well established in the civil sphere, it must be equally clear in the criminal context. As this Article demonstrates, however, findings-based statutes generate unique costs in criminal prosecutions by depriving defendants of procedural protections designed to make it harder for the government to send an individual to jail than to regulate her conduct by civil means. The common justifications for leaving questions of commerce largely to Congress's discretion, moreover, ring hollow when considered in the context of criminal law. Given the considerable costs of findings-based criminal prohibitions and the absence of any countervailing benefits, I argue that legislative findings should not serve as the basis for criminal punishment. Instead, courts should require case-by-case proof of the facts that demonstrate the necessary connection between the defendant's conduct and interstate commerce.
In Gonzales v. Raich,1 the Supreme Court held that Congress can use its power to regulate interstate commerce to prohibit intrastate possession of marijuana that is grown in-state and permitted for medical use under state law.2 Raich is the latest of a series of cases in which the Court has grappled with its role in enforcing the bounds of Congress's enumerated powers, including the commerce power.3 The cases are widely understood as cases about constitutional structure, about the relationships between the federal government and the states and between federal courts and Congress.4
This Article proposes a different way of thinking about cases like Raich, one that focuses less on questions of structure and more on questions of individual right. Like United States v. Lopez5 before it, Raich involved a criminal statute that prohibited certain conduct based on its presumed effects on interstate commerce. Elsewhere in the law, criminal prohibitions are treated differently from civil regulations; we recognize that criminal punishment is worse than civil sanction and that it therefore triggers distinct rights and duties.6 Not so under the Commerce Clause. Focused as they are on federalism, cases and commentary about the commerce power tend to treat all federal laws alike, ignoring the differences between criminal and civil legislation. The result is that the protections normally governing criminal prosecutions have been subtly eroded in the context of the Commerce Clause. The absence of those protections is felt most immediately by individuals charged with a crime, but it also has important implications for the scope of federal power. …