JONES v. UNITED STATES

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Argument of Donald M. Falk

Chief Justice Rehnquist: We'll hear argument first this morning in No. 99-5739, Dewey Jones v. the United States.

Mr. Falk.

Mr. Falk: Thank you, Mr. Chief Justice, and may it please the Court:

18 U.S.C. 844(i) makes arson a Federal crime if it damages property used in interstate commerce or property used in any activity affecting interstate commerce.

The question here is whether petitioner's arson of a private residence comes within the statute because that home received natural gas and was mortgaged and insured by out-of-state firms, and if so, whether that application of the statute to that crime is constitutional.

In the Government's view, the power to regulate interstate commerce enables Congress to make a Federal crime out of any act that threatens or damages property having connections to interstate commerce or that interrupts or disrupts an ongoing commercial relationship with out-of-state parties.

That view of the Commerce Clause would enable Congress to enact general Federal protections for virtually all property, including real property, although the general protection of property is one of the most basic core elements of an area of traditional state concern and competence.

In the Government's view of the Federal protection of property, the... Congress can make Federal crimes out of things like scrawling graffiti or breaking a window, and Congress has in... in the Government's view made Federal crimes out of setting fire to a gas barbecue grill or perhaps a television.

And here, of course, the Government has prosecuted as a Federal crime, the arson of a private residence.

The Government has not identified any limit on the Federal power to prohibit arson, although arson is a quintessentially local crime.

Justice Stevens: Mr. Falk, are you conceding in your argument that the statute does apply?

You seem to be arguing the constitutional issue first.

Mr. Falk: No, we do not concede that the statute applies.

We do not believe it... it applies.

We believe, however, that in reading the statute in this case, it is important to look at the constitutional considerations that would ensue from applying the statute in this case, and that in light of those considerations, the statute should be construed to avoid what we view as difficult, indeed, doubtful at best, constitutional issues.

Justice Stevens: Do you think if... if we did not have the constitutional concerns in the background, do you think the statutory language is clearly with you or against you?

Mr. Falk: We believe the statutory language is with us even without the constitutional considerations in the background.

When you look at the plain language of the statute and the understanding of... of the statute, when you look at the normal sense of what it means for property to be used in an activity affecting commerce, which is the subset that was applied in this case, we believe that it requires an active use of the physical property, which after all, it is the damage to the physical property that's supposed to provide the link to interstate commerce here.

And we think, in fact, it's quite telling that there was some concern among some Members of Congress that this statute did not reach private residences.

Justice Kennedy: Would it torture the words of the statute to say that the home was used to obtain a mortgage?

Mr. Falk: Well, I don't know if I'd go so far as to say that it tortures the words of the statute, Justice Kennedy, but it certainly twists them a bit.

It is not... it may be used in a... in an abstract sense, but it is not a use of the physical property and it is the physical property that is really at issue here.

And it's not a use in an activity.

Getting a mortgage is a... is a single transaction rather than an activity.

And this is... this Court has a long history and Congress has a long history of using the word activity affecting interstate commerce to mean an enterprise...

Justice Kennedy: I... I acknowledge that in the ordinary sense you use the mortgage to get the house.

You don't use the house to get the mortgage.

I can understand that.

But I'm not sure the statute necessarily requires us to reach that result.

Mr. Falk: Well, we believe that... that in the normal diction, in the normal, ordinary understanding of those words, when they're read entirely in context, property used in an activity affecting interstate commerce, that is required, and we think that's reinforced by the... by the... the sense that the Congress that passed this statute apparently had.

As I said, there were people that were concerned that this statute should reach residences, but no one...

Chief Justice Rehnquist: How do you distinguish... excuse me.

How do you distinguish this case from the Russell case, Mr. Falk?

Mr. Falk: Well, we think this case is... is quite clearly distinct from the Russell case because in that case, the landlord was using the property... was bartering the occupancy of the property for a generation of income, very much like... like what was going on in... in the Smith case where you were trading something to get income, allowing people to come in and occupy the property.

And those people were paying for the privilege.

We think that... that is... is a difference and it's a recognized difference in common speech.

Justice O'Connor: Well, what if the house is used... the property is put up to get a mortgage to get money to go into an interstate trucking business?

He needs money.

Mr. Falk: Even so...

Justice O'Connor: The homeowner does.

So, has he used the house in... in the sense contemplated by the statute?

Mr. Falk: We do not believe so, Justice O'Connor, because the... subjecting the house to a security interest is not the kind of activity affecting interstate commerce, the continuous sort of activity affecting interstate commerce, that this Court and... and Congress in its other statutes has... has repeatedly taken those words to mean.

And no one... we would point out no one in... in these debates where people said let's apply this to residences, how can we do it.

No one said, oh, the statute already applies.

Of course, any house with a mortgage is being used in an activity affecting interstate commerce.

Any house that is insured is being used in an activity affecting interstate commerce, and any house that receives utilities is being used in such an activity.

Nobody... nobody in the Congress thought that, not even the most... most fervent believers in applying this statute to residences, they could find a way.

Justice Souter: So, with respect to the mortgage, are you conceding that it is used but simply saying that use is irrelevant because it's not used in an activity?

Is that your argument?

Mr. Falk: Well, we are conceding that... that it is not torturing the language, in Justice Kennedy's words, to say that it is used in some sense.

You are using the house to get a mortgage.

That is...

Justice Souter: Well, in... in answer to Justice O'Connor's question, do you concede that it is used within the meaning of the statute, but that the use is not a use in an activity within the meaning of the statute?

I thought that was the argument that you were making, but I want to get clear on it.

Mr. Falk: No.

Let me... I don't believe you can parse word by word in a statute without taking the word... the words in context together.

I don't think there is meaning to say it is used but not used in an activity.

It is either used in an activity affecting interstate commerce or not.

It can't be used or not in that... used but not used in an activity.

It's... only a use in an activity counts here.

So that we don't think it... it is not the kind of use that the statute covers, and that is our argument.

Justice Scalia: have to admit it's a very peculiar statute if it... it reaches someone who sets fire to a private residence that is owned by the occupant... I'm sorry.

It does not, as you would say, apply in that case, but it does apply if... if you set fire to a... a building that is rented by the occupant.

That's just a very strange... strange distinction.

I don't know why Congress would draw that kind of a line.

And we're talking here about the statutory construction, never mind the constitutional limitation.

Doesn't that strike you as rather peculiar?

Mr. Falk: I agree it... it is not...

Justice Scalia: You can imagine the two criminals saying, gee, is this... is this building leased or... or is it owned by the occupant?

If it's, you know...

Mr. Falk: Well, Justice Scalia...

Justice Scalia: If it's owned by the occupant, we don't have to worry.

It's not a Federal crime.

Mr. Falk: Well, Justice Scalia, when you get back to the attempt to draw some nexus between this very basic State common law crime in interstate commerce, when a building is being rented out, it is being used in what is recognized as a commercial activity.

As in Russell, you could take a commercial tax deduction for it.

It is a difference.

Justice Kennedy: But the home ownership market, private home ownership market, is a... is one of the foundations of the American economy I suppose.

Mr. Falk: It is a foundation of the American economy.

That may be.

However, the home ownership itself is not... is about as local an activity as you can get and has... has never been considered to be an activity affecting interstate commerce.

Now, the market, the transactions, of course, could be... can be considered activities affecting interstate commerce.

But the mere ownership itself has... has not been that way.

And that... it seems to us that... that even though concededly the line is... is not the... is not the line that we would have drawn, were we enacting the statute, that because, at least in this case, which is an easy case in our view, you can avoid substantial constitutional issues, substantial constitutional concerns when Congress appears... at least Congress and the executive and the lower... some of the lower courts together appear to be asserting what amounts to pretty much plenary jurisdiction over one of the most basic common law crimes that drawing a line that is permitted by the words of the statute and that at least accords with this Court's Commerce Clause jurisprudence to some extent as a first step...

Justice Stevens: Let me ask you if you're talking about drawing these lines.

Supposing this was an 18-story apartment building and every apartment is rented out, would you agree the statute applies and also there's congressional power to prevent that arson?

Mr. Falk: I agree that the statute applies.

I mean, Russell... Russell says it.

Yes.

I do not necessarily agree that there is congressional power to prevent that arson.

Justice Stevens: Well, why wouldn't Russell control that case?

Mr. Falk: Well, because Russell was a statutory decision, Your Honor.

Justice Stevens: I see.

Mr. Falk: The constitutionality of the statute was not challenged in there.

Now, certainly... certainly...

Justice Stevens: But you would think... you would think Congress would not have the power to... to prohibit the arson of, say, skyscrapers.

Mr. Falk: Well, certainly not under the current... under the current articulation of this Court's Commerce Clause jurisprudence.

Now, skyscrapers... I mean, it depends what's going on in the skyscraper.

It seems to us...

Justice Stevens: They... they have mortgages.

They rent offices out, and they... and they buy utilities through interstate commerce.

Just... say, there are just the three activities, but it's in an 18-story skyscraper that you have here.

Mr. Falk: Well, that would be a stretch beyond the current... this Court's current Commerce Clause decisions.

This Court has recognized congressional power to protect property pursuant to the Commerce Clause only in the case of instrumentalities of interstate commerce and in the case of persons or things... things, for property moving in interstate commerce.

It would be a stretch to say that Congress also can protect property because it is commercially used.

That, we believe, goes beyond the current state of Commerce Clause jurisprudence.

However, to say that commercial property can be protected, if it's actively in commercial use and... and residential or inactively used or non-used property cannot, would be at least the line that is coherent in... in a... that... that corresponds to the line between commercial and noncommercial activity that this Court has reemphasized based on the text of the Commerce Clause.

Justice O'Connor: Mr. Falk...

Justice Stevens: How about churches then?

They wouldn't be protected, I guess.

They could burn down churches without a Federal offense.

Mr. Falk: Without a Federal offense in most instances based on the Commerce Clause.

Justice Scalia: Yes.

They could probably kill clergymen without its being a Federal offense, couldn't they?

Mr. Falk: Probably could, Your Honor.

Justice Scalia: It doesn't shock me, does it?

Mr. Falk: Without a... without a... it being a Federal offense, yes.

There are some churches that might... without getting into the details...

Justice Scalia: It isn't a Federal offense to kill a clergyman, is it?

Mr. Falk: I... I don't know the answer to that question.

I... I know there used to be a... it used to be a Federal offense to import clergymen, but I don't know if it's a Federal offense to kill them.

[Laughter]

Justice Ginsburg: Mr. Falk, it is a Federal offense under 924(c) that covers using a destructive device in relation to a crime for which a defendant may be prosecuted under Federal law.

You or your predecessor did not challenge the conviction under 924(c).

Mr. Falk: Well, we believe that the 924(c) conviction ceases to have foundation if the 844(i) conviction, on which it was based, disappears.

There is no...

Justice Ginsburg: So, you're not conceding the validity of that conviction?

It's just you didn't challenge it?

Mr. Falk: It was not directly challenged in the court of appeals.

That's correct.

We are not conceding.

In fact, we... we mentioned in our... in both the petition and our opening brief in this case that if the 844(i) conviction is found to have been beyond the scope of the statute or beyond Congress' power, then the 924(c) conviction falls of its own weight.

The only predicate crime for the 924(c) conviction was the 844(i) conviction.

Justice Ginsburg: What about the 5861(f) crime?

That is making an illegal destructive device.

That's pretty local activity too, making a Molotov cocktail.

Mr. Falk: That was not a challenge in the court of appeals, nor is it dependent on the 844(i) conviction.

So, Mr. Jones...

Justice Ginsburg: What is your view of that?

Mr. Falk: Well, my view of that is that it is justified... it... it may be constitutional as a... basically as a sort of channels... channels regulation, as part of a licensing scheme which ensures that explosives that travel in interstate commerce are taken care of in a particular way.

And as part of that... rational part of that licensing scheme, the best argument for the constitutionality of... of this provision is that Congress can require people who make these things to be licensed.

Mr. Jones was not licensed, and as a result, he would be subject to a... to a Federal punishment.

Justice Scalia: Are these devices excluded from... from the channels of interstate commerce if they have been not licensed, if they've been made by somebody who's not licensed?

Mr. Falk: Well...

Justice Scalia: I mean, what you've just said makes sense if, in fact, Congress has said we don't want any destructive devices traveling in interstate commerce, and as a means of enforcing that prohibition, which Congress undoubtedly has the... has the power to enact, we're going to punish anyone who makes one without having been properly licensed to make one.

But you have to start with step one.

Has it been excluded from interstate commerce?

Mr. Falk: Well, not all... I don't believe all the items that are covered within the destructive devices definition have been excluded from interstate commerce.

I don't believe that one can get a license to transport the particular destructive device in this case, a Molotov cocktail, and in that sense it... it is rational.

And it can be... and I believe it... this could be justified because even if the devices are not excluded from interstate commerce, their transport is regulated and their trade is regulated.

And... and as part of that, Congress requires people who make them or transport them to be licensed.

Justice Scalia: I don't know what you mean by saying their transport is regulated.

In... in what respect?

Mr. Falk: Well, within... within the Federal scheme, there are... I believe... I believe there is a tracking mechanism.

The people have to report certain things.

They have to tell authorities where things go and... and when they go.

As I say, not with Molotov cocktails.

I don't think you can get a license to do anything with them.

And in fact, those are excluded from interstate commerce, but there is... there is a scheme dealing with the transport of... of some of these devices.

There is not a scheme dealing with their use.

Justice Breyer: Can you... if we add up all the residences that burn up each year, that has a pretty big effect on interstate commerce, doesn't it?

Mr. Falk: Yes, Justice Breyer...

Justice Breyer: All right.

Now, if it...

Mr. Falk: it has an effect, but it is not a substantial effect...

Justice Breyer: Even if we add up all of them?

I mean, isn't it hundreds of millions of dollars of... of wood and bricks and whatever burns up and... and you have to have fire departments from all over the place.

And I mean, you know, whole cities can burn down, but I don't know that they do.

But nonetheless, there is a lot... many, many residences in fires that... you're saying you add up all that across the board and that isn't substantial?

Mr. Falk: Well, two answers to that.

First, that is the exact cost of crime reasoning that the Court rejected in Lopez.

Yes, all crime... all crime is expensive.

Justice Breyer: I'm not thinking of... I'm not thinking of... I want to know if you think it's substantial or not substantial.

Mr. Falk: I don't think it's a substantial qualitative effect.

It's not a... substantially related to interstate commerce in the way that this Court...

Justice Breyer: Even... even though you burn up all the wood that moved in interstate commerce?

You burned up all the... the carpets that came from Persia.

You burn up all the whatever.

And that's still not... all that taken together is not substantial?

Mr. Falk: That is not substantial in the qualitative sense that controls the constitutional issue any more than the additive value of every theft in the country is... is substantial in that case.

Yes, of course, there are high economic costs of all crime.

Justice Breyer: I didn't... I didn't... all right.

Now, my... now, my... is it... what I'm trying to drive at is it... are you claiming that it just in quantitative amount is not substantial or that we shouldn't aggregate?

Mr. Falk: Well, in quantitative amount, as it happens, the... the total value of residential arsons in the country nationwide... the last count I think was around the 200 to $ 250 million range, and I think there is an argument that for a nationwide...

Justice Breyer: I'm really trying to get whether you think we should... my question...

Mr. Falk: No.

Justice Breyer: I'm trying to drive at something, and my question is...

Mr. Falk: No, you cannot aggregate this.

Justice Breyer: Fine.

And that's what I...

Mr. Falk: And the reason you cannot...

Justice Breyer: I understand it.

That's what leads to what I'm really trying to get at.

Mr. Falk: Okay.

You...

Justice Breyer: And what I'm really trying to get at is why should you not be able to aggregate with residences, but can you then aggregate in respect to businesses?

Mr. Falk: No, I don't think...

Justice Breyer: No.

Mr. Falk: I don't think aggregation works here.

Justice Breyer: So, in your... in your view if you win this case, it is also true that, since you could not aggregate, business arsons are also out unless you prove a substantial effect between this individual grocery store and interstate commerce or this individual swimming pool distributor.

That's your view.

And the same, I guess, is true of apartment houses that are rented unless you prove that this apartment was rented to a... a person from... you see my point.

That's my question.

Mr. Falk: Yes, I see your point, and... and...

Justice Breyer: Yes, all right.

That's what I'm interested...

Mr. Falk: Yes.

I... I... basically yes because these are not the kinds... this is not an economic regulation or regulation of economic activity.

This is a dispersed activity.

There is no general either power or existing scheme.

Justice Breyer: On that view... by the way, how do you... I've got your answer, which I appreciate.

And... and on that view, too, how do you distinguish the Court's earlier case about a house that happened to be on the market for being rented with no evidence whatsoever that any person who even looked at the house was from out of State?

Mr. Falk: Now, you're talking about Russell?

Justice Breyer: Yes.

Mr. Falk: Which is a duplex.

Justice Breyer: Sorry.

Duplex, all right.

Same... same...

Mr. Falk: Yes, yes.

Well, my understanding of Russell is that it had been rented and that it... that it... but... but regardless, I don't think it... I'm not sure...

Justice Breyer: I didn't see anything in the opinion that said anyone who rented the house was from out of State...

Mr. Falk: No, that's correct.

Justice Breyer: or that anyone who looked at the house was from out of State.

So, I just wonder how you reconcile that with what you've told me that we have to look at this particular building.

We cannot aggregate and that's true whether it's a business, whether it's a rental house, duplex, whether it's owned.

Mr. Falk: Well, with great deference, Your Honor, I believe that the reference in Russell to aggregation was neither necessary to the opinion nor correct as a matter of constitutional law.

It was a statutory opinion.

We believe that we have set out a rationale under which it... it can be fit within the statutory language, as did the opinion, and the fact that there's a reference to aggregation does not control the constitutionality of that aggregation here.

Justice Scalia: Mr. Falk, if... if you want to, you know, argue this on... on the textual basis, I don't... don't you think it's hard to draw a line between a use for mortgaging, a use for leasing, and... and so forth?

I can understand it if you thought when... when the statute says used in an activity that substantially affects interstate or foreign commerce, it means used in the way that property is normally used, in considering the primary purpose for the property, namely to provide shelter, to provide heat, light for... for any activity.

Then it would make some sense if... if it's being used as a building for some purpose affecting interstate commerce.

But you're apparently willing to say that it's enough if it's used, you know, for a mortgage, which is certainly not the... the normal use of a building.

Mr. Falk: Well, I... if I suggested that it's used for a mortgage within the meaning of the statute, I certainly misspoke.

Justice Scalia: Oh, well, you're willing to accept used as a lease... used... used for... for rental.

Right?

Mr. Falk: I am willing to accept that under Russell, and I think there is a difference between the commercial use of the property...

Justice Scalia: You're willing to accept it or do you have to accept it?

Unidentified Justice: [Laughter]

Justice Scalia: I mean, I... I find it very difficult to draw a line between using it for... as rental property and using it in order to get money through a mortgage.

Mr. Falk: Well...

Justice Scalia: Either one is... is the primary, principal, ultimate use of the property.

Mr. Falk: Justice Scalia, in a vacuum I would certainly agree with you.

However, I think there is a... a principal distinction between this case and Russell so that... that Russell does not have to be overruled as a statutory decision...

Justice Ginsburg: In Russell...

Mr. Falk: in order to put this case outside the line.

Justice Ginsburg: did anything turn on... I think, wasn't it... wasn't the arsonist the landlord himself?

It was his... for him it was property that he held for commercial purposes, income producing purposes, and I think that this wasn't an arsonist of the kind we had in this case.

Wasn't it the landlord?

Mr. Falk: It was the landlord, Your Honor, and I... I... although it is neither an element of the statute, nor I think clearly in the opinion, if it's in there at all, it... it, you know, probably was an arson for profit of some sort.

But it was not... the case did not turn on that.

Justice Ginsburg: Because if you were dealing with fraud on an insurance company then... then one might see that as more on the commercial side than if someone is... is just your everyday arsonist.

Mr. Falk: Oh, absolutely.

As a constitutional matter... matter, Justice Ginsburg, it... if Congress enacted a statute that made arson, with the intent to defraud an insurance company or an interstate insurance company, a Federal crime, it would be much, much closer and... and probably could be drafted in such as way as... as to come within the constitutional power.

But that's not what this statute... that's not the nexus that this statute draws.

The nexus that this statute draws is not related to intent.

Chief Justice Rehnquist: Mr. Falk, if you're going to argue statutory construction, you have to accept the holding in Russell, don't you, that where the property is... is leased for production of revenue, then it is covered by the statute?

Mr. Falk: Right.

That is the... that is the type of commercial activity that in... in normal parlance is understood as a... as a commercial action, renting out property for profit.

Living in a house is not.

It seems, as I say, without a... if Russell was not on the books and... and this case presented those issues, then... then I might argue something to the contrary.

But Russell...

Justice Scalia: I mean, suppose... suppose we... we can't find any... any reasonable distinction between burning leased property and burning property resided in by the owner.

And therefore, we proceed to the constitutional question, and we find it's unconstitutional to... to provide for a Federal offense in either event.

Are we still stuck with interpreting this statute the way Russell did?

Do we have to say the statute is unconstitutional, or could we say, in light of the constitutional problem, the statute should be read more narrowly?

Russell didn't... didn't consider any constitutional problem, did it?

Mr. Falk: This is correct.

And in fact, it would be... the Court would have to... in the first instance, to get to the constitutional issue, would have to construe the statute in a way that is broader than... than Russell construed it.

And then it would... of course, as you suggested, it would get to the constitutional issue, find this general property protection power not to exist, and then construe the statute more narrowly, in... in a way backing out.

The Court could certainly follow that rationale.

But first it would have to say, well, it looks to us that Russell is not only right, but it was... that it... the statute reads more broadly than that.

But that, of course, would lead to the difficult constitutional questions, and... and the Government here is asserting a power to protect property that would sweep far beyond anything this Court has ever recognized.

It would...

Justice Stevens: Let me just ask you on the constitutionality of the statute as interpreted in Russell.

Would you not agree that if a person owns property and leases it out, buys and sells and rents and so forth, in the real estate market, that he's engaged in an activity affecting interstate commerce?

Mr. Falk: Yes.

I...

Justice Stevens: So that the owner of the building in Russell was engaged in an activity affecting commerce.

Mr. Falk: The owner was engaged in an activity affecting commerce.

Justice Stevens: And so that the property was, therefore, being used in an activity affecting commerce.

Isn't that true?

Mr. Falk: Justice Stevens, I have stood up here to say that Russell is not bad statutory law.

We still believe that it goes beyond what this Court... that if you...

Justice Stevens: I understand.

You think... but why would that be unconstitutional.

If... if Congress can regulate the market for buying and selling and renting real estate, why is the prohibition of the arson of a building used in that market unconstitutional?

Mr. Falk: Well, because this is not part of a scheme of protecting or regulating a market.

There is no scheme for regulating the real estate market.

And, in fact, arson is simply the... the destruction of property, which property is everywhere.

Property is used in every business.

Congress cannot possibly have the power to make shoplifting a Federal crime because the... the shopkeeper is engaged in a business.

And... and with arson it's no different.

There has to be some more substantial, qualitatively substantial, nexus than that.

If there are no more questions, I'd like to reserve the balance of my time.

Argument of Michael R. Dreeben

Chief Justice Rehnquist: Very well, Mr. Falk.

Mr. Dreeben, we'll hear from you.

Mr. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court:

This Court's decision in Russell forms the background for both the statutory and the constitutional issues in this case.

As a matter of statutory construction, Russell recognized that Congress intended to go to the limits of its constitutional authority under the Commerce Clause in enacting section 844(i).

Chief Justice Rehnquist: Well, Mr. Dreeben, I wouldn't... I have read Russell to... I... I grant you it says that, but I... I wouldn't have read Russell to say that it meant to push the word used in the statute to the limit of the word use.

Mr. Dreeben: I don't think that the... the Court addressed the construction of use the way that it's been discussed in this case.

But the Court did recognize that Congress sought to exert its constitutional authority to protect real property and personal property from arson because of the effects on the interstate economy.

And Congress guaranteed that there would be such an effect in any case in which a prosecution was brought by providing a specific jurisdictional element that the Government must satisfy in every case.

Justice Souter: But doesn't the... doesn't your argument, in effect, entail the conclusion that the jurisdictional element will always be satisfied?

In other words, it seems to me that on your argument, if... if the jurisdictional element is sufficient to get the privately owned house, then the jurisdictional element does not act as a limitation.

And... and I don't, therefore, know why it would be in there.

Mr. Dreeben: Well, I do think that the jurisdictional element acts as a... a limitation, Justice Souter, although it may not act as a limitation that is narrower than the constitutional power of Congress.

But it does require that in each case the United States establish that there is an effect on interstate commerce.

Justice Scalia: Can you give us a hypothetical where... where that wouldn't exist?

I mean, he mentioned shoplifting.

I assume you think the Federal Government can make all shoplifting a Federal crime.

Mr. Dreeben: Well, I think that if the... that if the Federal Government made shoplifting from businesses that do business in interstate commerce a Federal crime, it could do so.

Justice Scalia: Oh, what about... what about theft from a private home?

If you say that burning a private home affects interstate commerce, why wouldn't, you know, theft from a private homeowner affect interstate commerce?

Mr. Dreeben: Well, I think theft from a private home is a more difficult case than this case because in this case the crime of arson is extremely likely to destroy the property itself, and where, as here, the Government is able to show that there is an out-of-state mortgage company, an out-of-state insurance company, and out-of-state supplies of natural gas that are going to the home, the destruction of the home will create a potential...

Justice Scalia: So, theft from a home you're willing to concede could not be made a Federal crime.

Mr. Dreeben: No, I wouldn't be willing to concede.

Justice Scalia: Well, give me something you are willing to concede.

Unidentified Justice: [Laughter]

Justice Scalia: Just something, one... one little thing.

I mean, you're coming up with a principle that you say, you know, I mean, the Constitution meant something when it... when it limited the Federal Government to matters involving interstate commerce.

And we know that they did not intend the Federal Government to have general criminal jurisdiction.

Mr. Dreeben: Well, I think, Justice Scalia...

Justice Scalia: So, what is it that's excluded?

Mr. Dreeben: My... my starting point is the same as the... the point where the Court left off in Lopez.

The Court recognized in Lopez that there is power under the Commerce Clause to reach intrastate activities that affect interstate commerce, and that it will be a matter of degree and a matter of characterization in each case to determine whether the particular statute does satisfy those requirements.

Justice Scalia: Give us an example of one that doesn't.

Chief Justice Rehnquist: How about an example like a gun-free school district?

Unidentified Justice: [Laughter]

Mr. Dreeben: Since 1995, I'm happy with that example.

I do think...

[Laughter]

Justice Scalia: One we haven't decided yet.

Unidentified Justice: [Laughter]

Mr. Dreeben: I think, Justice Scalia, a... a statute that sought to regulate all crime without a jurisdictional element and without any particularized reason by Congress...

Justice Scalia: I mean, they're going to put in a jurisdictional element.

You know, anyone who... who steals from a house that... property that has... that has been transported in interstate commerce.

Do you think that would suffice?

Mr. Dreeben: I don't think that it necessarily would suffice, Justice Scalia, because the nexus between the interstate commercial activity and the crime is not as close as it is in a case like this one.

Justice Kennedy: Well, but in a burglary statute, if there's a Federal burglary statute, you would come with statistics as to how much insurance companies have to pay every year in the aggregate for household burglaries, and you'd make... you'd make the submission that this is an effect on interstate commerce that's measurable.

Mr. Dreeben: Well, I would probably lose that case under Lopez because the Court made clear that merely pointing to the... the costs of crime is not sufficient.

And that is not what we have done in this case.

In this case, we have an out-of-state mortgage company and the house was used in the activity of the mortgage business.

We have an out-of-state insurance company which had to make a specific $75,000 payment across State lines as a result of this arson, and we have pointed to the presence of interstate utility connections which have out-of-state gas coming into the house.

Justice Kennedy: But you... in any... any burglary that's insured, other than the deductible, if it's a... there's going to be payment from an interstate insurer.

Mr. Dreeben: Well, there may be payment from an intrastate insurer or an interstate insurer, and the Court may draw a distinction based on that.

But I do have three different theories that establish that there's an interstate connection to the house in this case.

The mortgage theory relies on the fact that this house was used to procure the mortgage loan and that the mortgage company uses the house as security for that loan.

It is an out-of-state business, and it is a business that suffers a direct foreseeable effect if the property that secures the loan is destroyed by arson.

Justice Scalia: It was used to... it was used to cover the ground too, but when you say what is the house used for, that is... that is not the normal meaning that one associates with what is it... what is the house used for.

Mr. Dreeben: Well, I...

Justice Scalia: No one would think, well, it was used to get a mortgage.

That's not what houses are used...

Mr. Dreeben: Well, I... I think that somebody would...

Justice Scalia: Is it used as a residence?

Is it used as a barber shop?

Is it used... you know.

That... that's what we're talking about normally.

Mr. Dreeben: Well, to back up on the statutory construction question to this Court's decision in Russell, Russell establishes that uses of a property are not limited to those uses that the occupants engage in in the course of daily living.

It is also... it also extends to uses that other people make of the property that have some commercial nexus.

Now, in Russell it was the owner renting it out.

In this case, it's the mortgage company supplying a mortgage and taking a security interest in the home.

The homeowner himself...

Justice Scalia: He didn't use his house.

It wasn't his house.

I mean, the mortgage company didn't use the house.

It wasn't the mortgage company's house to use.

Mr. Dreeben: Well, I think that the mortgage company has a significant interest in the house once it grants the mortgage and it uses the house as security for that mortgage.

The homeowner...

Justice Souter: Well, it may... I mean, in the... in the brute sense, it uses the house when the moment for foreclosure comes and it wants to realize its money.

But may I get back to my... my original point?

And that is, what is being excluded under this statute in the arson case?

And it sounds to me, from what you've said, that it would be consistent with your argument to say that the statute would not cover arson of a house, which was built by the owner without the use of borrowed money and was not insured and was heated with wood cut on the property...

[Laughter]

but it wouldn't exclude much more than that, would it?

Mr. Dreeben: Well, I will give away that case.

[Laughter]

I... I don't...

Justice Souter: A wise concession, but...

Unidentified Justice: [Laughter]

Justice Souter: But really, would it...

Mr. Dreeben: I do...

Justice Souter: would it exclude much more?

Mr. Dreeben: Yes, I do acknowledge that under our approach to the statute, its coverage is broad, and I think that that was consistent with Congress' intent...

Justice Souter: But... I'm sorry.

Mr. Dreeben: to use its Commerce Clause authority broadly.

Justice Souter: The... the problem I have, though, is if the only thing that is excluded is something as trivial as the example that I came up with, it just does not seem plausible to me that Congress would have gone to the trouble of putting in this jurisdictional prerequisite simply to exclude something as... almost as silly at that.

And, therefore, I... I feel bound to try to give it as a matter of... of statutory construction, looking to congressional intent, a broader meaning.

Am I... am I wrong in... in feeling that obligation?

Mr. Dreeben: Well, I think so, Justice Souter, because the legislative history makes clear that Congress selected the affecting commerce language that it used in this jurisdictional element precisely so that it could have a way of indicating to this Court that it wished to go to the limits of its Commerce Clause authority.

It relied on a decision called Reliance Fuel, which was an NLRB case, in which this Court had said that the affecting commerce language goes to the limit of the Commerce Clause authority.

Justice Scalia: Who relied on it?

You... you really think that... that a majority of the House and the Senate and the President as well who signed the bill, knew about this case, Reliance Fuel?

Mr. Dreeben: Well, but...

Justice Scalia: And they had this case in mind when they voted for the statute?

Unidentified Justice: [Laughter]

Mr. Dreeben: What I do know, Justice Scalia, is that Reliance Fuel was cited in the committee report on the bill to indicate that...

Justice Scalia: It probably means the committee staff knew about the case.

Unidentified Justice: [Laughter]

Justice Scalia: I don't know that it means that anybody else knew about the case.

Mr. Dreeben: Well, I think that this Court has recognized that it has given the words, affecting commerce and in commerce, a term of art sense that Congress is presumed to know.

Congress is presumed to know the law, and this Court operates...

Justice Breyer: I think it might.

I mean, isn't there a long line of antitrust cases where the words, affecting commerce, are over and over said that that's an indication that Congress wants to exert its full commerce power?

I mean, I thought there are lots of cases that say that.

I might be wrong.

Mr. Dreeben: No, there are.

Justice Breyer: It's fairly well-known.

It might be that Senators and Congressmen do know.

Mr. Dreeben: Yes, I think that it's a reasonable presumption that they do know, but it's legally irrelevant because this Court has said that when Congress does use those words, it intends to go to the limits of the Commerce Clause authority.

And in this case we have some corroboration that the drafters of the bill intentionally did that.

Justice Ginsburg: Mr. Dreeben...

Justice Scalia: Do we have cases that say used in an activity affecting commerce?

Mr. Dreeben: No.

This Court's cases are... are not lucid on that issue.

This case and the Russell case are going to be the primary cases giving a construction to that.

But I...

Justice Souter: But isn't... no.

I didn't mean to cut you off.

Mr. Dreeben: Well, I think that it's reasonable to think that if Congress went to the trouble of attempting to cover as much as it possibly could, based on uses of the property under the arson statute, that it did not intend that this Court give an artificially narrow meaning to the word use.

Justice Scalia: It could have said any... any arson affecting commerce.

It didn't say any arson affecting commerce.

That would have been the broadest possible use of the affecting commerce language.

It said arson of a building used in an activity affecting commerce.

Mr. Dreeben: Well, it could have also passed a statute that had no jurisdictional element at all.

Justice Ginsburg: Mr. Dreeben, on that, the emphasis on used in in... in U.S. v. Mennuti... Judge Friendly thought that that was a significant distinction.

The phrase, used in an activity, was different from activity affecting interstate commerce.

At least he thought and so did his fellow panel members that the used in made all the difference.

Mr. Dreeben: Yes, but I think that this Court ended up disagreeing with Justice Friendly's analysis of the arson statute because the property that was at issue in Mennuti was available for rental, and Judge Friendly did not believe that that was a sufficient basis for covering the... the conduct.

And this Court disagreed.

Justice Ginsburg: Well, it could be that... that decision certainly was limited pro tanto, but it doesn't, it seemed to me, wipe out entirely the point that used in an activity is different from an activity affecting interstate commerce.

Mr. Dreeben: Well, I concede that much.

What... what I am trying to do is... is explain that this Court's decision construing the statute in Russell made it clear that it goes to the limits of the Commerce Clause authority along...

Justice Ginsburg: But it coupled it... it coupled it with business property.

Mr. Dreeben: It did.

But at the time that the... that the bill was introduced, it had a specific for business purposes limitation in the statute.

That was deliberately deleted by the drafters of the bill before it was enacted, and...

Justice Scalia: Maybe because they thought this... this other language was an adequate substitute for it.

Mr. Dreeben: Well, I think what they... what...

Justice Scalia: I mean, I'm not sure that helps your case or hurts your case.

I don't know which.

Mr. Dreeben: Well, what the record in the legislative history shows is that there were... were hearings on the bill that brought to the attention of Congressmen that there were burnings of churches and police stations and other buildings that were not used for business purposes, and that legislators objected to the restriction of a bill that would deny the Federal Government the ability to investigate and prosecute cases involving those kinds...

Justice Scalia: You think it covers the burning of a church?

Mr. Dreeben: Yes.

Justice Scalia: Even a church that isn't mortgaged.

Mr. Dreeben: Well, I think that we need to show something that will connect it to interstate commerce.

Justice Scalia: But then... but you're frustrating this legislative history you've just talked about.

Mr. Dreeben: No.

I think the...

Justice Scalia: You seem to think that it... it should have covered all churches.

Mr. Dreeben: The legislative history shows that because churches were not covered under the restriction in the bill that said it covers property used for business purposes, Congress deleted the language that said for business purposes.

That is not part of the enacted bill, and it was done deliberately in order to allow this bill to reach to the limits of Federal power.

Chief Justice Rehnquist: What is the connection with a church?

I mean, what if the hymnals cross State lines?

Would that be enough?

Mr. Dreeben: It could be, but that is not typically the sort of connection that we have relied on in prosecuting cases like that.

Justice O'Connor: Well, you'd say the church got heat from natural gas.

You'd be back into the same kind of argument you're making here...

Mr. Dreeben: We would have...

Justice O'Connor: But, Mr. Dreeben, it does seem to me that if you read used in an activity in the statute to encompass these passive sorts of uses, the phrase is just converted into something that means anything affecting commerce, and the legislative branch didn't use that language.

And it sort of reads the phrase out of the statute in a sense.

Mr. Dreeben: Well, I don't think that it does read it out of the statute, Justice O'Connor.

This is not a statute like section 924(c) where this Court said use has to mean active use in some manner of deployment.

In that statute, the Court was confronted with verbs that said use or carry, and the Court had to do something to give those two words independent, nonduplicative meaning.

Whereas, this statute is a statute where Congress expressed its intention to go to the limits of the Commerce Clause authority, and it did not couple...

Justice O'Connor: Well, you don't really think Congress intended to cover private residences I suppose.

I mean, if you want to play the congressional intent game, there was substantial evidence that it didn't.

Mr. Dreeben: There were some legislators who felt that it couldn't, and there were other legislators who very much wanted to provide Federal authority to investigate and prosecute those sorts of crimes.

And the compromise solution is a bill that places it in the hands of the courts to determine whether the Government has proved the kinds of jurisdictional connections that satisfy the Constitution.

If we can prove the kinds of jurisdictional connections... and we must do that... to satisfy the Constitution, we have also come within the language of the bill.

Justice Scalia: Do you... you think Congress can do that in a criminal statute, not... not say, look it, this is what we're criminalizing, but rather say, we're criminalizing as much as we can criminalize because, boy, this is so hard to figure out, we're not going to try to draw the line, we're going to let the courts figure it out?

Now, Congress is unable to draw the line itself with its massive staff, and... and the individual citizen who's supposed to know whether he's violating a Federal law or not has to what?

He's going to have to figure out what the courts are going to say is... is far enough?

Mr. Dreeben: Well, I don't...

Justice Scalia: I mean, I question whether Congress can do that and just say we're going to extend this criminal statute as far as the courts will let us extend it.

Do you think... don't you think that's vague?

Mr. Dreeben: No, I don't think that it's vague, and I don't think that there's a requirement of precision in the way that Your Honor has articulated it that's applicable to a jurisdictional element.

It's a Federal crime if you assault an individual and it turns out that that individual is an undercover Federal police officer and you had no way of knowing that until you're prosecuted in Federal court.

Justice Scalia: Well, you know what the crime was.

You knew that... that it was a crime to assault a police officer.

When you assault somebody, you're taking a chance that it's an undercover police officer.

Mr. Dreeben: Well, anyone who commits arson knows that it's a crime.

Chief Justice Rehnquist: Well, but are you saying that the jurisdictional element is not subject to any sort of a vagueness test?

Mr. Dreeben: I don't think the jurisdictional element is subject to a vagueness test when... when what Congress does is express its intent to go to the limits of the Constitution and use language that allows this Court to enforce that limitation.

No.

There are many Federal criminal statutes that contain jurisdictional elements like this, and the Court has construed those elements in a way to give them meaning, but not in a sense that requires the actual individual to appreciate where this Court will go on constitutional...

Justice O'Connor: Well, you... you have two problems here really.

You have the notion that if there's a constitutional doubt, you try to interpret the statute more narrowly to avoid any constitutional problem.

And you also, because it's a criminal statute, are concerned presumably with the rule of lenity.

And when you put all those together, where do you go?

It seems to me maybe a narrower reading of this statute.

Mr. Dreeben: Well, the Court could adopt a narrower reading of the statute, but I think that the language of the statute as written covers the crime that's prosecuted here, and Congress indicated an intention that it be covered.

Therefore, the question for the Court is whether it can constitutionally do that.

Justice Breyer: Just before... I'm perhaps asking you to repeat something you've said, but I don't have it precisely.

Justice Scalia earlier asked... and he certainly had a point, and Justice O'Connor picked it up.

And when I look back at the statute, I realize this covers arson of any property.

Mr. Dreeben: That's correct.

Justice Breyer: I mean, it's really everything.

So... so, given that, what do those words precisely used in, on your theory of pushing to the limit... because he's right in saying that it's the word affecting commerce that has the tradition.

It's not the word used in.

And... and what do they mean on your theory?

Can you give them any meaning at all?

I can't think of any.

And... and you said there is, but I haven't got precisely what it is.

Mr. Dreeben: Well, I think the Court has recognized that the word use is a broad verb that intends to connote the idea of to employ or to put to service.

And then it takes from its context more specific meanings that it may have in a particular statute.

Now, in this statute, the... the goal that Congress had in mind was protect interstate economic affairs from the effects of arson on buildings or real property or personal property that are used in activities affecting commerce.

So, Congress wanted to... the courts to identify those properties that are used in activities affecting commerce, and then it sought to exert its power to protect them.

And that is...

Justice Scalia: And you think that... that drawing down an infinitesimal overall amount of natural gas causes the building, within the meaning that Congress had in mind, to be used in an activity affecting commerce?

Mr. Dreeben: Yes, I do, Justice Scalia, but we have three different theories on how this building is used in an activity affecting commerce.

The natural gas theory is one of them.

Justice Scalia: Well, each one has to stand on its own.

I don't... I... I don't think if neither... neither one suffices, the three together suffice.

Mr. Dreeben: Correct, and my argument is not that the three together suffice.

I think that you have to go step by step and look at each one.

Now, the natural gas theory is that because the house consumes natural gas that is supplied by an interstate natural gas company, it is used in the activity of natural gas supply.

Justice Ginsburg: The same would go for electricity, for coal?

Mr. Dreeben: Correct.

Justice Ginsburg: For anything?

Mr. Dreeben: Correct.

That is why the utility theory of an interstate commerce connection is clearly the broadest of the three that we have relied on in this case.

And it would cover the most property, and it would have...

Chief Justice Rehnquist: How about milk shipped in interstate commerce and drunk by people who live in the house?

Would you say that the house... that the house uses milk?

Unidentified Justice: [Laughter]

Mr. Dreeben: No.

I think that the individuals within the house would use milk.

Chief Justice Rehnquist: Well, and the individuals in the house use the heat, too.

Mr. Dreeben: Yes, they do.

And I think that in... in focusing on the interstate gas connection, there are two ways of looking at it.

One is that the gas company uses the property in its interstate business by shipping gas to the house and collecting revenue from the residents or owners.

The other way of looking at it is that the activities of the individuals within the house result in the consumption of the natural gas.

Justice O'Connor: Well, I suppose your theory would encompass also the notion that mail is delivered to houses, and therefore, mail comes interstate and every house...

Justice Scalia: Uses mail.

Justice O'Connor: uses mail, receives mail.

Mr. Dreeben: If that... if that were the basis for jurisdiction, then there would be a serious question whether there's a logical and adequate nexus between the fact that the house receives mail and protection of the house against arson.

Here there is no discontinuity or no sense of disproportionality in the connection because...

Justice Stevens: May I... may I suggest that if we looked at the word vehicle, we might get some enlightenment on this issue?

Because you would... you would argue a vehicle is used in interstate commerce if it drives across the State line and so forth.

But you wouldn't argue that it's a vehicle used in an activity affecting commerce because it burns gas, would you?

Mr. Dreeben: Well, I think I would, Justice Stevens.

Justice Stevens: Oh, you would.

That's the analogy to the... to your utility...

Mr. Dreeben: That... that's right.

Justice Stevens: Okay.

Mr. Dreeben: And that is why that theory, as is evident, does have the broadest reach to it.

Now, the other two...

Justice Ginsburg: Is there... on any theory, is there any car that would be excluded on your definition?

You gave the... the remote example of a building that might, but is there any vehicle?

Mr. Dreeben: I think that the gas theory would cover all... all vehicles.

If the Court disagreed with the gas theory, then cars that aren't subject to outstanding liens or interstate insurance would not be covered.

Cars that... that are subject to outstanding liens and interstate...

Justice Ginsburg: What about...

Justice Souter: Fall back to bicycles.

Justice Ginsburg: that they were certainly constructed and manufactured... you could have a home that was built locally, but for most automobiles that would not be the case.

Mr. Dreeben: That's true, but this statute doesn't base jurisdiction on the fact that the home was manufactured with out-of-state parts or out-of-state materials, and it doesn't depend on the fact that the car was manufactured with out-of-state parts or materials.

It does look to the uses of the property in question.

Justice Scalia: If your gas theory is right, the statute was written wrong.

It should have read whoever maliciously damages, destroys, blah, blah, by means of fire and explosive, any vehicle or any building or other real or personal property used in interstate or foreign commerce because, as you acknowledge, every vehicle on your theory would be covered.

And it's really redundant, attaching to the word vehicle, used in... you know, in any activity affecting interstate or foreign commerce.

Mr. Dreeben: It would have meaning as to the other two segments of the statute, but I think that you're right, Justice Scalia, that it would apply to all vehicles because of the gas and the movement of the gas in interstate commerce.

Again, this Court's decision in Russell makes clear that it's not simply the activities of the occupants of the house that are relevant to determining whether it's used in an activity affecting interstate commerce.

And the economic distinction between renting property and mortgaging property is not likely one that would have prompted Congress to exclude the coverage of houses that are mortgaged while covering houses that are subject to rental agreements.

Justice Kennedy: Does it seem to you that the categories we've been discussing are really somewhat remote from what the Framers sought to accomplish when they set up the Federal system, which is to allow people to realize that there's a Government that's not remote from them that they can control?

Here the sentence was for 30 years.

It's not clear in the record why this... this crime happened, but the homeowner himself argued before the sentencing court, as I understand it, that the sentence was too... too strong.

And yet, this very remote Federal sentencing scheme comes into play in what is ordinarily a common law crime.

And none of the responses you've given, perhaps none of the questions we have asked, seemed to recognize that there is a strong, local interest here that's just simply being ignored.

Mr. Dreeben: Well, I don't think that they're in any sense being ignored, Justice Kennedy.

In fact, the local authorities called upon the ATF to investigate this crime and actually requested that we take it over for prosecution because it involved a destructive device, a Molotov cocktail, in which the Federal resources and Federal experience was far greater and, therefore, was resolved in that manner.

This is typically the way that prosecution decisions are made under statutes like the arson statute that deliberately provide overlapping jurisdiction between Federal authorities and State authorities.

There is collaboration.

There's cooperation, and in the norm, there's agreement upon which body is the better to prosecute.

And the fundamental issue I think here in Federal law enforcement and criminal law enforcement is not one of usurping the States or taking away from them prerogatives that they wanted, but in reinforcing the States' desire to punish and prosecute crime with the resources of the Federal Government.

Justice Scalia: I'm not concerned about the States.

I'm concerned about the citizens.

I think that's what Justice Kennedy was concerned about too.

If there's some agreement among State law enforcement officers and the Federal Government, the Federal Government can do whatever it wants, that doesn't make it any the less obnoxious with regard to the citizens of that State.

Mr. Dreeben: I think under anybody's view of Commerce Clause authority, Justice Scalia, there is a substantial ability of the Federal Government to regulate what would have been viewed in 1789 as local criminal activity.

If an individual uses a telephone to make a threat to destroy a residence by fire because of some personal, private debt, wholly intrastate, that is clearly and indisputably covered under the Federal arson statute because he has used an instrumentality of interstate commerce, the telephone.

Now, these jurisdictional links are not artificial in the sense that they are neither genuine, specific, or concrete.

They are all of those things.

But they do clearly allow the Federal Government and the States to exercise overlapping jurisdiction on a wide range of crimes.

And that will be true whether this Court resolves this case against the Government or in favor of the Government.

Now, what I think that the Court should do is recognize that when Congress has put a jurisdictional element in it like this one and the Government can satisfy it both linguistically, practically, and economically, that the Federal authority to prosecute should be upheld.

Thank you.

Rebuttal of Donald M. Falk

Chief Justice Rehnquist: Thank you, Mr. Dreeben.

Mr. Falk, you have 3 minutes remaining.

Mr. Falk: There are deep and significant concerns about our Federal system that are posed by this case.

They are not solved by the fact that the State authorities asked the Federal authorities to participate because we are talking about what kind of power may be exercised and how.

The Federal authorities under the Spending Clause certainly could have assisted the States in the investigation of this crime.

There was, of course, an eye witness who knew the... the perpetrator, but that... that could be done under the Spending Clause, and I don't think there would be any real serious debate that the Federal authorities could not assist in these investigations.

But when it is asserted that the Federal Government has power to protect property, not instrumentalities or items in interstate commerce, but all property, based on a conception that was developed for ways of regulating ways of doing business that have intermingled effects on interstate commerce, and then it is justified because there is a jurisdictional element, which serves as a sort of logic puzzle that if the Federal Government and the prosecutors can figure out a way to get past a compliant lower court, it's just a way of putting the pieces together on everything in the most basic State crime... areas of the State crime and the State power come under Federal power, then it's okay.

These I think raise significant problems that don't need to be addressed here.

Under Russell, even under Russell, which I think gives us a good working starting place in this... on this... on this issue, the statutory issue... Russell, by the way, Justice Breyer, when the early sentence says that Mr. Russell did earn rental income.

So, in fact, the... the it's not clear whether he earned at that minute, but the building was... had been actually rented.

It was not merely on the market.

But this Court said, yes, there's this legislative history that suggests they're going all the way, but it also says substantially all business property.

And in any event, let's look at the words of the statute and what do those mean.

And here the Court has to look at the words first.

The Government says that this business purposes amendment means that Congress meant to cover everything.

Well, one thing it could not have meant to get by drafting that language is the sort of idea that the mortgage company is using the house, because if the mortgage company or the insurer or the utility company or any of those people are using structures, then they are certainly using them for business purposes, and there would have been absolutely no need to draft this... draft this language at all.

It would have been already covered.

Everything would have been covered.

It makes no sense.

Instead, the... the people on... on whom... the members on whom the Government relies kept coming back saying, let's find a way to get residences, and others are saying, well, it's constitutionally doubtful.

And Representative Hungate proposes at the last minute, here's another way.

It's constitutionally doubtful in a different way because of the presumption.

But it will get residences.

It will get the... it will get these within the scope of the statute.

And Congress said no.

Congress chose these words not because it was going... trying to exercise the absolute, utmost possibility of the commerce power, but because it thought if we choose this... these words carefully, if we structure this statute carefully, we will exercise as much of the power as we can get but stay within constitutional limits.

And those limits do not reach this case.

It... it... thank you.

Chief Justice Rehnquist: Thank you, Mr. Falk.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-5739, Jones against United States will be announced by Justice Ginsburg.

Argument of Justice Ginsburg

Mr. Ginsburg: Dewey Jones, the defendant petitioner in this case was explosively angry at his cousin as Jones demonstrated by tossing a Molotov cocktail into the cousin’s Indiana home.

No one was injured in the ensuing blaze but the dwelling with severely damages.

For that misconduct Jones was indicted under 18 U.S.C. Section 844(i) which makes it a federal felony to damage or destroy by means of fire or explosion any building used in interstate commerce or in any activity affecting such commerce.

A jury found Jones guilty and he unsuccessfully appealed his conviction to the US Court of Appeals for the Seventh Circuit.

Seeking this Court’s review, Jones raised two questions on which Federal Courts have divided: first, does the statute, under which he was convicted Section 844(i), cover arson of a building used by its owner occupant solely for everyday family living?

Second, if the statute does cover the arson of such a private residence, does that coverage exceed the authority Congress has under Article 1 of the Constitution to regulate commerce?

We answer the first question no, and therefore do not reached the second question.

An owner-occupied private residence not used for any commercial purpose, we hold does not qualify as property used in commerce or commerce affecting activity.

Arson of such a dwelling therefore is not subject to federal prosecution under section 844(i), so Jones’ arson conviction must be vacated.

In urging us to sustain the conviction, the government relied on the breadth of the statutory terms affecting commerce.

Those words, when they are unqualified, signal Congress’ intent to invoke its whole Commerce Clause authority, but here the term is qualified a building to fit within the statute’s compass must be used in a commerce affecting activity.

The government points specifically to three commerce affecting uses of the home into which Jones threw a Molotov cocktail.

Jones’ cousin, in the government’s view, used the home to secure a mortgage, to obtain a home owners insurance policy, and to receive natural gas.

These connections we conclude were not the kind that Congress had in mind.

The word “used” in legislation as in conversations ordinarily signifies active employment, it surely is not the common perception that a private owner occupied residence is used in the activity of receiving natural gas, a mortgage, or an insurance policy.

The only active employment of the home in this case so far as the record reveals, was for the everyday living of Jones’ cousin and his family.

But we to adopt the government’s expansive interpretation of Section 844(i) hardly a building in the land would fall outside the federal statute’s domain under Section 844(i) limiting language used in any commerce affecting activity would have no significance.

Our reading of Section 844(i) is reinforced by the principle that constitutionally doubtful construction should be avoided where possible.

This Court's 1995 decision in Lopez v. United States held that a statute making it a federal crime to possess a firearm within 1000 feet of school exceeded Congress’ power to regulate commerce.

Lopez brought to the fore concerns expressed in earlier cases about turning traditionally local criminal conduct into matters for federal enforcement.

Our construction of Section 844(i) is also supported by interpretive guides in the clear statement category ambiguity concerning the ambit of a criminal statute should be resolved in favor of lenity, when choice must be made between two readings of what Congress has made criminal, the harsher alternative should not be chosen unless Congress has spoken in definite language, and when the Congress has not spoken unambiguously courts will not attribute to the legislature a design to alter the federal-state balance in the prosecutions of crime.

The opinion is unanimous.

In addition, Justice Stevens has filed a concurring opinion in which Justice Thomas joins and Justice Thomas has filed a concurring opinion in which Justice Scalia joins.