Academic journal article Texas Review of Law & Politics

Not All Violence Is Commerce: Noneconomic, Violent Criminal Activity, Rico, and Limitations on Congress under the Post Raich Commerce Clause

Academic journal article Texas Review of Law & Politics

Not All Violence Is Commerce: Noneconomic, Violent Criminal Activity, Rico, and Limitations on Congress under the Post Raich Commerce Clause

Article excerpt


Following the Supreme Court's decision in Gonzales v. Raich,1 the crucial question in Commerce Clause jurisprudence is whether any activity still remains outside the reach of Congress' interstate commerce power. A recent First Circuit decision, United States v. Nascimento,2 is helpful in answering this question. The case upheld the convictions of three gang members for violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO)3 and for violations of the federal Violent Crimes in Aid of Racketeering statute (VICAR)4 flowing from the alleged RICO violations.5

While RICO convictions of gang members are not unusual, Nascimento was unique because there was no indication that the crimes involved had any connection with a commercial or economic motivation. Indeed, the first words of the court's discussion stated, "The pivotal issue in this case concerns the application of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, to a street gang engaged in violent, but noneconomic, criminal activity."6 Even when a criminal is prosecuted under RICO for murder, economic ends typically motivate the killing, for example murder in support of illegal gambling or international drug operations.7

The commercial connection of most convictions is not a coincidence. Like many federal statutes, RICO is grounded in the Commerce Clause of the U.S. Constitution.8 Therefore, RICO requires that an organization must be "engaged in, or . . . affect, interstate or foreign commerce" in order for the government to convict an individual for participation in that organization.9 The "affects commerce" phrase implicates the ongoing debate regarding both the extent of the congressional power to legislate under the Commerce Clause and the role of the courts in monitoring that power.10

Largely dormant in the fifty years following N.L.KB, v. Jones of Laughlin Steel Corp., the Supreme Court in United States v. Lopez2 and United States, v. Morrison" once again began to rein in Congress's power to legislate under the Commerce Clause. However, the Court's next major Commerce Clause decision, Gonzales v. Raich, created serious confusion among both lower courts and commentators as to the current state of Commerce Clause jurisprudence. Drawing on the Raich decision, the First Circuit in Nascimento upheld the gang members' RICO convictions in spite of the court's recognition that the gang members' actions were noneconomic.15 In so doing, Nascimento decided to discount an earlier Sixth Circuit case, Waucaush v. United States,"' which was decided before Raich but addressed near-identical facts under RICO.

The purpose of this Article is not to reinvestigate the overarching themes of the history of the Commerce Clause or the arguments of the Court during the New Federalism revolution. Although crucially important, such topics have been well explored in the years since Lopez-was, decided.17 Instead, this Article examines the disturbing state of confusion created by the Court's decision in Raich through the lens of RICO and the Nascimento decision. The Supreme Court should begin to remedy this confusion by clarifying that even after Raich, noneconomic, violent criminal behavior is never "commerce" for purposes of the Commerce Clause.

Part II lays out the facts of Nascimento and the alternately decided Sixth Circuit Waucaush decision. Part III addresses the relevant elements of a RICO charge in the context of the Constitution's "affects interstate commerce" requirement. Part IV briefly describes the Lopez-Morrison-Raich series of cases to provide context for the contemporary debate. Part V analyzes the Court's recent Commerce Clause jurisprudence through the examples of Nascimento and Waucaush. It argues that the confusion created by the Supreme Court's Raich decision led to Nascimento's erroneous result of holding noneconomic, violent criminal behavior to be interstate commerce. …

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