The constitutional education of America, and of its President

The Ninth Circuit has ruled that President Trump’s Executive Order could remain subject to a stay issued by the District Court in Seattle.  The opinion is here.  This is not a ruling on the merits, though the emergency relief standard was applied and the Court concluded that there was not a likelihood that the Government would succeed on the merits of the case.  The court’s holding was, in my view, a dubious one, though not an unreasonable one.

Regardless of one’s position on either the wisdom or legality of the Order (and I believe the arguments for its legality are far stronger than the arguments for its wisdom), the entire episode has served as a kind of civic education for the American people.  Americans are confronted with serious questions about the scope of presidential power, of constitutional rights, of the place of religion in the scheme of law and policy, and of the role of courts in cases where rights and security intersect.  We have had other such moments in our history.  But it is difficult to think of a time in recent memory when so many valuable questions of constitutional government arose over a single official act.

Americans, regardless of party or viewpoint on the Order, should take time to carefully consider these matters and what they mean for the Republic.  That does not mean that they should all crack open a copy of The Federalist Papers (though we could all do much worse than to spend a few moments with Publius these days), or study The Steel Seizure Case by the fireside with a glass of chianti.  It does mean, though, that Americans ought to savor the opportunity to reflect on what it means to live under a rule of law and a venerable Constitution that diffuses government power.  They should reflect on what it means to have limited government, to have checks that prevent presidents from simply acting at will and checks that prevent judges from ruling as philosopher-kings.

One hopes, too, that the President will savor the same opportunity.  His actions for the past two weeks (nearly two years!) have created serious questions about his commitment to the rule of law and to constitutionalism, questions I raised during the campaign and that have persisted despite my dim hope that his authoritarian tendencies might be tempered by institutions, by an appreciation of history, and by the sheer weight of his office.  The one bright spot in this period was his nomination of Judge Gorsuch.  But as I said during the campaign, it is not enough that Presidents appoint judges who are constitutionalists.  The President himself must demonstrate that same fidelity.

Presidents can be critical of the courts.  The judiciary is not immune from criticism, nor should it be.  Lincoln, before his presidency, thoughtfully criticized the Dred Scott decision.  FDR’s tussles with the Supreme Court were so tense that he proposed packing the Court with Justices who would approve his economic recovery programs.  President Bush respectfully criticized the Supreme Court’s war on terror decisions that disfavored his expansive view of presidential power.  President Obama criticized the Court’s Citizens United opinion during the State of the Union Address.  It is fair, and proper, that political leaders disagree with judges from time to time.  But criticism that seeks not merely to disagree with, but rather to de-legitimize, courts and judges does violence to the separation of powers and a politically independent judiciary.  This is, unfortunately, President Trump’s modus operandi.  He prefers to de-legitimize a critic or opponent, often ad hominem, rather than contest them on the merits.  It is the last refuge of a man who is out of his element on substance.

So, rather than make any one of the credible substantive arguments he could have made in defense of the Order, naturally the President chose instead to personally insult Judge James Robart as a “so-called judge” (never mind the judge’s unanimous confirmation by the Senate).  And perhaps worst of all, he then asserted that federal judges who opposed the Order would be held responsible for a terrorist attack – it is hard to think of a more insidious presidential assertion about the judiciary.

To worsen things, he also fired Acting Attorney General Sally Yates for her refusal to enforce the Order.  This was admittedly a somewhat more complicated matter.  Yates’s directive to the Justice Department would have been stronger had she set forth more precisely her legal arguments against the Order, arguments that almost surely would have been vindicated in the 9th Circuit’s opinion (though surely she could have articulated grounds for the Order’s defense, as well).  And there is no question that the President had the power to relieve her of her duties.  But firing her on the spot did little to inspire confidence in his judgment; it was a rash display of raw power that sent the wrong message and failed to consider the longer-term consequences.  Imagine now how Attorney General Sessions must feel.  General Sessions has been placed in an untenable position, and one that diminishes his capacity for independence from the President.  Even the most ardent defender of the Unitary Executive must shudder at the thought of an Attorney General who may have to choose between defending the Constitution and losing his job.

To some extent, the President’s constitutional schooling of late may include a lesson on a truth that his critics repeatedly noted during the campaign: words matter.  Lately, the President has been reminded of his disgraceful pander that called for a “complete and total shutdown of Muslims” entering the country.  But the problem goes even deeper.  The Government’s claim in litigation that the President should be entitled to great deference in matters of national security is a sound, if imperfect, claim.  But when giving deference to Presidents, it may well be that courts generally trust that the President is knowledgeable and credible on those matters, that his judgment is worthy of deference because he has thought seriously about the problem and vetted his decisions through the collective expertise of the military, intelligence, and security communities.  This President, by contrast, is the one who said he knows more than the generals about ISIS, appeared to suggest that the CIA was using the same tactics as the Nazis, heaps bizarre praise on Russia’s ruling dictator while heaping scorn on genuine American heroes like John McCain and John Lewis, and said our military leaders had been “reduced to rubble.”  And it is becoming increasingly clear that the vetting of this Order was shoddy, at best.   Is it any wonder, then, that informed jurists would be reluctant to defer to this President’s judgments?

Does all of this make the Trump Presidency hopeless?  It does not.  On the Executive Order, the Government retains considerable arguments in favor of its constitutionality – or at least in favor of substantial deference to the President’s national security decisions, in light of the limits on the judiciary’s expertise in such matters – though the prudent course may be to scrap the Order altogether and start over.  Judge Gorsuch will likely make an outstanding Supreme Court Justice.  Tax reform is a real possibility.  And this President may be able to play to his strengths in securing a major infrastructure package on a bipartisan basis.

But the President needs to right this ship in a hurry.  The collection of rash, impulsive, and even bitter statements over the past two weeks has created a portrait of a President who views his official powers as a one-way ratchet.  He has created the impression that the law must bend to his will, lest a tantrum follow.  Of course, Americans should have seen some of this coming.  But the people, through their representatives in the Electoral College, elected him anyway.  Perhaps, then, it is fitting to be reminded of Madison’s admonition in Federalist 51 on the importance of separated powers: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Judge Gorsuch and the “mainstream”

There is plenty of commentary on Judge Neil Gorsuch, the President’s nominee for the Supreme Court.  I won’t repeat it here.  The President has had a rough couple of weeks, but last night he stopped the bleeding, even if only temporarily.  Judge Gorsuch appears to be an excellent, if rather conventional, choice.  Chalk one up for the hated Establishment.

Now the fun part begins.  Democrats are already promising a filibuster, which will no doubt prompt Republicans to consider the Nuclear Option against which they so aggressively argued in the past.  Hypocrisy will be alleged on each side.  We have seen this movie repeatedly.

But be on the lookout for the following term: “mainstream.”  Democrats will likely say that they are concerned with whether Judge Gorsuch’s views and decisions are outside of the “mainstream.”  And this will become a convenient rhetorical tool for opposition on the merits.  But, “mainstream” as compared to what?  As compared to the views of Liberals?  As compared to the decisions of William Brennan or Ruth Bader Ginsburg?  As compared to all circuit judges?  As compared to other judges on his circuit?

Federal appeals court judges do not have the same law development function that Supreme Court Justices do.  Except when addressing issues of first impression, federal appeals court judges are typically bound both by Supreme Court precedent, and the precedent of their circuits.  Moreover, circuit precedent can vary from one circuit to another.  What is the accepted rule of law in one circuit may not be the rule followed in another circuit.  There is no question that Judge Gorsuch has reached results with which the Left will disagree.  But that cannot possibly be the test of whether a judge’s views are extremist or radical.  Very often legal precedent dictates, or at least points strongly in the direction of, a result that will be contrary to the preferred views of the legal Left.  So if the “mainstream” is important (and, as I say, we must determine what that means), then it is important to ask, among other questions, whether Judge Gorsuch’s work is within the “mainstream” of existing decisional law from the Supreme Court and his own circuit.

Furthermore, this hardly seems like a standard that Senate Democrats would follow faithfully.  For example, Thurgood Marshall held the view that the death penalty was in all circumstances cruel and unusual punishment. That view was so far outside of the mainstream of American legal thought, only one other Justice in the history of the Supreme Court at the time actually agreed with it (Brennan).  Of course, over time, the view has gained greater adherence, but is still a minority view in the judiciary.  Are we to believe that Senator Schumer, for example, would have opposed Thurgood Marshall’s nomination to the Court?

Other Democrats may oppose Judge Gorsuch as simple revenge for the Republican-controlled Senate’s failure to consider Merrick Garland last year.  I covered that ground after Garland’s nomination, here and here and here. Of course, Democrats may forget that it was their Party that was complicit in a similar act earlier in the Court’s history.  Justice Robert Trimble died in 1828, and President John Quincy Adams nominated Whig U.S. Attorney John Crittenden to replace Trimble.  But before Crittenden could be confirmed, Adams lost re-election to Democrat Andrew Jackson, and the Jackson supporters in the Senate refused to confirm Crittenden during the lame-duck period.  Instead, President Jackson eventually filled the seat in 1829 with Postmaster General John McLean (and to add insult to injury, removed Crittenden as U.S. Attorney; McLean would later write a famous dissent in Dred Scott v. Sandford).  That historical note aside, however, it is hard to see how one can oppose Judge Gorsuch now simply by arguing that the seat should have been filled by Judge Garland last year.  And if the result on this nomination process angers Democratic voters, perhaps they will remember that the next time they have to decide whether to get to the polls on Election Day.

Finally, beware the “Robert Bork’s America” attack.  This refers to Senator Edward Kennedy’s notorious slander of Judge Bork on the Senate floor, and represents a now all-too-conventional method for opposing a nominee: recite a hyperbolic litany of horrific results for vulnerable people if the nominee is confirmed, not the least of which will be a return to “back-alley abortions.”  (Of course, it is hard to see how the “back-alley abortions” claim works here, as there would still be a 5-vote majority on the Court for abortion rights; Justice Scalia’s death did not affect the Court’s alignment on that issue).  This kind of rhetoric is among the lowest forms of political dissent from a nomination, and it is this kind of rhetoric that should be considered out of the mainstream.  But don’t count it out this time.

Given the anger and impressive mobilization of the political Left in light of President Trump’s ascendancy, Senate Democrats will likely slouch toward any argument they can muster to oppose Judge Gorsuch, who surely knows of the bloody battle that is coming.  None of it is his fault, and he is likely to survive it anyway.   But “out of the mainstream”?  Hardly.

 

“Send in the Feds”? Don’t bother, they’re here.

Keeping up with President Trump’s Twitter activity is a full-time job, and I don’t have that kind of time.  So I rarely find it useful to comment on any of his Tweets.  I could not, however, resist responding to one from late last night, in which he makes a statement about the violence plaguing Chicago: “If Chicago doesn’t fix the horrible ‘carnage’ going on . . . I will send in the Feds!”

What does that even mean?

Chicago – a great American city by any definition – is home to a busy United States Attorneys Office, and field offices for the FBI, DEA, and ATF, among others.  Federal prosecutors and other law enforcement personnel in Chicagoland – among the brightest and most talented in the Nation – routinely work on violent criminal cases within federal jurisdiction.  Even a cursory look at the press releases for these federal offices shows that they have been busy using federal resources to fight Chicago’s dire crime problem (which seems connected in substantial part to a drug trafficking and gang problem).  See, e.g., here, and here, and here, and here, and here, and here.

In other words, what kind of federal role in Chicago does President Trump envision that does not already exist there?

One possibility is that he is not talking about policing and prosecution at all, but rather is talking about using National Guard troops.  That would raise serious legal issues, if the troops are called upon to engage in civilian law enforcement.  The image of uniformed military and even of military weaponry constantly patrolling Chicago’s streets is not an image of America becoming great again.  Another possibility is that he is talking about sending more federal money or other resources to Chicago to help combat the problem.  That would be welcome news to city and state officials in Chicago, I imagine (see a Chicago Tribune piece here).  But that is not typically what one would think of when hearing “send in the Feds,” a phrase that suggests a substantial physical presence by federal officials.  Perhaps even more agents and AUSAs could be placed there; perhaps federal drug and gang task forces there could be enhanced and better funded.  I would favor that move.  But let’s be clear: that’s not sending in the feds – that’s sending in more Feds.

Finally, while there is certainly a robust federal law enforcement role where the violent criminal activity involves guns, gangs, and/or drugs, does the President believe that the federal government should supplant the role of city and state officials in ordinary law enforcement involving street crime merely because the city and state are failing to curb the crime rate?  It is true that federal criminal law offers an expansive role for the Feds in this regard, but a more expensive role for the federal government is not something that conservatives and Republicans have typically defended, preferring instead that most criminal law enforcement be done at the state and local levels.  I can’t imagine intellectually honest conservatives going along with the idea of a wholesale federalization of criminal law enforcement in a major American city.

So if the President simply means ensuring a federal role in cooperation with the city and state role, then I must ask again: how is that different from the existing situation?

The President’s Tweet therefore raise two distinct questions.  First, is he even aware of, or does he understand, the rather extensive law enforcement role of the federal government in Chicago already?  And second, how does he envision the federal role there – or in other cities – in the scheme of constitutional federalism?

Unlike others who have been critical of the President’s focus on crime, I applaud the President for tackling this issue at a time when “criminal justice reform” rhetoric has often obscured a discussion of the need for aggressive approaches to criminal violence (including gun violence and drug trafficking, two things that often go together and that are plaguing Chicago).  And there is no question that the federal criminal law provides legal mechanisms for an aggressive federal approach to the kinds of violent crime that Chicago has been experiencing.  But those mechanisms are already at work in Chicago.  Maybe they should be even more robust.  But perhaps the President could be clearer about his federal prosecutorial priorities and his understanding of the Constitution’s limits on enforcing them.

CREW v. Trump and the Emoluments Clauses

The first formal Emoluments Clause lawsuit was filed today in federal district court in Manhattan.  The suit was brought by the group Citizens for Responsibility and Ethics in Washington (CREW), and it sets forth a detailed list of the President’s business dealings that, CREW claims, now represent violations of the Constitution.  I would note that the lawsuit alleges violations of both the Foreign Emoluments Clause (Article I, section 9) and the less-noticed Domestic Emoluments Clause (Article II, section 1), which forbids the President from receiving any emolument, other than his compensation, from the United States or from any State.  The complaint in CREW v. Trump is here.

The President has said that the suit lacks merit (Politico story here).  But before getting to the merits, there are two threshold problems with the suit.  The first and most obvious problem is the question of whether CREW has Article III standing.  As the complaint makes clear, CREW has an argument for standing.  But Josh Blackman, among others, offers a strong counterargument (Blackman’s post, embedded in the Politico piece, is here).  Even if CREW lacks standing, however, one wonders whether someone with a better claim to standing will move forward with a suit of his or her own.

The second threshold issue is whether the President is someone who holds an “office of Profit or Trust” for purposes of the Foreign Emoluments Clause.  There is an ongoing debate among constitutional scholars as to whether the President is covered by that provision.  Michael Stern has a good description of the debate here at Point of Order; Will Baude summarizes his views at VC here.  Of course, there is no doubt that the President is covered by the Domestic Emoluments Clause.

I would note that the suit filed today is not being filed by crackpots.  There are serious – indeed, mighty – names in the legal profession attached to this case.  Even if this particular suit does not survive, another suit may well be forthcoming.

 

 

Day One

I have gone quiet for awhile.  It seems like everything I could say has been said by the various talking heads throughout the 24-hour news cycle.  And my work responsibilities have prevented me from having much time to write, here or elsewhere.  But a few thoughts might be appropriate here on Inauguration Day.

I never voted for Barack Obama.  I believed John McCain and Mitt Romney to be better suited to the presidency, and I had too many disagreements with Obama on substance.  But I never understood why Republicans treated him with such disdain and disrespect.  I attribute most of that to the bare-knuckle, zero-sum game of American politics in which every member of the opposing party must be painted, characterized, demonized, and rejected.  I think very little of that brand of politics, and regret that it dominates so much of American life today.  I also think President Obama did little to endear himself to Republicans, especially in the early years when the Blame Bush strategy seemed to be stamped to his team’s every move.  Still, President Obama was an elegant, thoughtful, intelligent man who brought his own brand of gravitas to the office.  I agreed with him at times; disagreed more often.  But he tackled difficult moments with grace and understanding, and demonstrated respect for his office and his role in American life.  In turn, he has earned the respect and gratitude of Americans, even those of us who questioned and criticized him at times.

I am hopeful that President Trump will embrace the constitutional presidency, even more strongly than did his predecessor.  Day One did not raise my confidence in that.  His uninspiring inaugural address made no mention – not one – of the Constitution, or even of the Congress (constitutional references were a regular practice among early inaugural addresses, but have been largely abandoned by contemporary chief executives).  “America First” is a catchy campaign slogan but it is not a policy.  More importantly, it conveys no relationship of the president to his place in our system of constitutional government, nor does it convey anything about the role of constitutional government in securing liberty, justice, and tolerable order for the American people to whom the President pledged his loyalty.  He said his oath was an oath of allegiance to all Americans, but neglected to note that it is chiefly an oath of fidelity to the Constitution.  The address was not memorable, at least not for the right reasons.

The most important thing that happened on November 8 was not the election of Donald Trump, important as that was.  Rather, it was the election of Republican majorities in both houses of Congress.  The President’s pre-inaugural actions, including his cabinet choices, would perhaps have looked much different if Democrats had won one or both chambers.  The burden is now on congressional Republicans to assert the prerogatives of their respective institutions, rather than serve as errand boys for the President.  Standing up to the President will be much easier if the President’s approval numbers remain low.  Their challenge will be to defend their own institutional roles even if the President becomes more popular.  The meaning of the Constitution does not change with the President’s poll numbers.

President Trump has the chance to deploy his notorious private charm in service of the presidency’s soft powers, persuading allies and adversaries alike.  That can be useful.  But he should not confuse the soft powers of the office with the hard ones, those set forth in the formal arrangements of the Constitution.  And it is his fidelity to those arrangements – rather than his Party affiliation – that conservative constitutionalists, and congressional Republicans, should be giving their attention.

 

The rise of Joan Larsen

I learned over the past year or so that predicting Donald Trump’s next move is often a fruitless exercise. I therefore will not venture a definitive prediction about Trump’s upcoming pick for the Supreme Court.  Instead, I will simply say this: keep an eye on Justice Joan Larsen of the Michigan Supreme Court.

In some ways, Justice Larsen looks like an obvious choice to fill Justice Scalia’s seat.  She clerked for Scalia (and David Sentelle on the D.C. Circuit), she is a high-profile Republican lawyer who also served in the last Bush Administration, and her appointment would represent one more notable appointment for a Michigander, as Michigan was key to securing Trump’s election — Betsy DeVos (Education) is also from Michigan, and Ben Carson (HUD) grew up here.  And she is comparatively young (48).

In other ways, though Justice Larsen might not fit the mold to which we have become accustomed, her appointment would represent a welcome change.  Justice Larsen would break the Harvard/Yale stranglehold on the Court.  She went to law school at Northwestern, where she was first in her class and won several prestigious awards.  Notably, she received her undergraduate degree from Northern Iowa, which would make her the only Justice besides Justice Thomas not to have a bachelor’s degree from either Stanford or an Ivy League school (Thomas has a bachelor’s from the excellent Holy Cross).  So her appointment would certainly diversify the educational backgrounds of the current Court.  Moreover, like Scalia (and Elena Kagan, on the current Court) she brings the background of a full-time law professor (she taught at Michigan).

Of course, one might consider it a strike against her that she does not serve on a federal court.  Federal courts have generally been the proving ground for every appointment since Sandra Day O’Connor, the last appointee to serve on a state court but never a federal court (David Souter served on the New Hampshire Supreme Court, but then served on the First Circuit; Justice Kagan never served as a judge on any court; William Rehnquist had never served as a judge before his initial appointment, but became Chief Justice after 14 years as an associate justice).  But that is all the more reason to see Justice Larsen as a potential pick: Trump likes to buck trends and conventional wisdom.  Still, in addition to her impressive federal clerkships, she served as a deputy assistant at the Office of Legal Counsel (OLC) and worked at Sidley & Austin, so she has high-level federal law practice experience on her resume.  Indeed, the combination of federal and state experience might make her even more desirable.

Of course, it remains true that the likes of judges Diane Sykes and Bill Pryor will continue to garner the lion’s share of attention.  But regardless of who it is that ultimately gets the nod for the Court, it is important to remember two other positions that Trump must fill that also can help to shape the Administration’s approach to constitutional law.  Trump will need to pick a Solicitor General and the head of OLC.  Given Justice Larsen’s previous time as a DAAG at OLC, her background in separation of powers questions, and her current work on a state supreme court, she might be regarded as a good fit for either position.  Indeed, President-elect Trump needs to be surrounded by lawyers with, shall we say, heightened knowledge of separation of powers and constitutional structure.  And whoever gets SG could be naturally well-positioned for the next SCOTUS opening, should it occur during Trump’s term.  So even if Justice Larsen is not Trump’s pick for Scalia’s seat, she remains an attractive choice for other key legal positions in the Administration.

Trump would be wise to make his pick soon.  Place the Senate in the position of having to confirm the Cabinet and the SCOTUS pick all at once.  Senate Democrats will have limited political capital, and will need to decide where to use it: the appointments for State, EPA, Justice?  Or the Court?  So long as Trump’s SCOTUS pick is sensible and well-qualified, Democrats may be willing to forego a fight over the Court and focus their resources on a couple of picks for the Cabinet.

Again, this is not a prediction, just an observation: watch for the rise of Justice Joan.

 

Transgender killing results in federal hate crime conviction

Several of my recent posts have addressed issues related to hate crimes.  Obviously, the Roof conviction and upcoming federal death penalty hearing has made that case the leading hate crime story nationally of late.  But it seems helpful to note the latest hate crime story of interest, also from the deep South.  Like others, it raises important questions about the federal role in prosecuting violent crimes committed with a bias-motivation.  As the Justice Department announced here, a Mississippi man yesterday pleaded guilty to brutally killing his former romantic partner because she was transgender, and in order to avoid the wrath of a violent street gang.

According to the DOJ and the defendant’s statements at the plea hearing, Joshua Vallum had been dating Mercedes Williamson, then 17.  Vallum knew that Williamson was transgender but he kept this a secret from his family and friends.  Vallum was also a member of the Latin Kings.  The relationship ended and for about nine months, Vallum had no contact with Williamson.  Vallum learned, however, that one of his friends found out that Williamson was transgender.  Believing that he would be harmed if the Latin Kings also discovered that he had been dating a transgender person (the gang has strict rules about homosexuality, and Williamson’s birth gender was male), Vallum decided to kill Williamson.

After driving her from Alabama to Mississippi, he shocked her with a stun gun, and stabbed her repeatedly with a pocket knife.  Williamson was able to escape from the car where Vallum had stabbed her, but Vallum gave chase and stabbed her again in the head (he believed he had “hit brain”).  Although Williamson was still able to stumble into some woods, Vallum again caught up to her and hit her repeatedly with a hammer, killing her.

This case gained special national prominence after Caitlyn Jenner remembered Williamson during Jenner’s 2015 speech at the ESPY awards.

Vallum had already been convicted in Mississippi state court of murder and received a life sentence.  But, as has been true in other cases, the Feds believed that it was necessary to pursue a federal prosecution because Mississippi does not have a hate crimes statute for which gender identity is a protected category.  Thus, in the language of both the relevant statute (the Shepard-Byrd Act, 18 U.S.C. 249) and the DOJ’s Petite Policy, the state prosecution left the specific federal interest “unvindicated.”  It is an open question whether the Trump Administration will take a similar view of how federal interests become vindicated by state prosecutions.

Vallum now faces another life sentence, this time in the federal system.  As I have discussed elsewhere, there is no death penalty under the Shepard-Byrd Act, though I believe this case and others demonstrate why there ought to at least be that option for federal juries in section 249 cases involving brutal killings like this one.

But that raises another question: why not also charge Vallum with murder in aid of racketeering (18 U.S.C. 1959)?  The VICAR statute reaches murder committed for the purpose of “maintaining or increasing position” in a racketeering enterprise.  If the Government’s theory is that Vallum killed Williamson not simply to avoid harm by the Latin Kings (surely a “racketeering enterprise” as defined in VICAR), but in order to remain a member of the Latin Kings, then this would seem to provide sufficient evidence to charge the VICAR offense.  That is notable because a killing under VICAR – unlike the Shepard-Byrd Act – does permit the death penalty.

I have not seen the Vallum indictment.  Perhaps it does contain a VICAR charge, and that charge was dismissed as part of the plea agreement to the hate crime.  If it was not included, perhaps the theory would be that Vallum committed the killing not on behalf of the Latin Kings, or because of a desire to maintain his position in the Latin Kings, but only because of Williamson’s gender identity and his fear of the gang’s enforcement.  But it seems hard to neatly separate his killing of Williamson on account of her gender identity from his interest in maintaining a place within the gang – arguably, he did one to preserve the other.  And that is precisely what VICAR forbids.

Finally, because this prosecution was based on section 249(a)(2), which is justified only under the Commerce Clause, there is a reasonable question as to whether the federal government properly had jurisdiction in the case.  But the statute easily answers that problem, at least as a matter of statutory application.  It specifically permits federal jurisdiction where there was travel across state lines, see 18 U.S.C. 249(a)(2)(B)(i)(I), and that was the case here.  Perhaps Vallum could have argued that the travel from Alabama to Mississippi was too attenuated from the killing to be justified under the Commerce Clause, but I doubt such an argument would go very far.  The statute also permits federal jurisdiction where the defendant uses a dangerous weapon or other weapon that has traveled in interstate commerce, or where the defendant used a “channel, facility, or instrumentality” of commerce “in connection with” the prohibited conduct, or where the prohibited conduct otherwise affects commerce.  See 18 U.S.C. 249(a)(2)(B)(ii)-(iv).

Still, in a different case, depending upon the facts, it could make sense to question whether some of these jurisdictional elements are enough to satisfy the Commerce Clause.  Watch for a hate crime case presenting a viable challenge to the jurisdictional element and the scope of congressional power.