Section 1 of the Thirteenth Amendment bans slavery and involuntary servitude.  Section 2 grants Congress the power to effectuate that ban.  But while Congress is given broad prophylactic power to ensure that slavery is indeed banished, never to return, it is not given an additional independent power to uproot the relics of slavery untethered to the goal of banning slavery itself.

The ramifications of the contrary view would be extraordinary.  Consider the Nineteenth Amendment and the Twenty-Sixth Amendment.  Since they contain essentially identical grants of power to Congress, they would have to be interpreted to allow Congress to uproot historical relics of the failure to enfranchise women and 18-year-olds earlier.  It is safe to state that the power to remake the country as Congress thinks it “would have been” had women and young adults always voted is virtually an unlimited power.

A more reasonable interpretation of these Constitutional provisions is that they ban exactly what they say they ban:  slavery, involuntary servitude, and the disfranchisement of women and persons aged 18 or older.  Congress’s prophylactic power, although broad, must be focused on those ends.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (“HCPA”), Pub. L. No. 111-84, 123 Stat. 2835, was passed in 2009—144 years after the Thirteenth Amendment’s slavery ban.  One section of that act, now codified at 18 U.S.C. § 249(a)(1), nevertheless relies on Congress’s Section 2 power as authority for the creation of criminal penalties for crimes committed “because of the actual or perceived race, color, religion, or national origin of any person.”  (A different section of the act, not at issue in this case, relies on Congress’s Commerce Clause to prohibit crimes that occur “because of” someone’s religion, national origin, gender, sexual orientation, gender identity and disability, 18 U.S.C. § 249(a)(2), and requires proof of an interstate commerce nexus.

Congress did not even claim that it passed Section 249(a)(1) to effectuate the Thirteenth Amendment’s ban on slavery.  Instead it stated simply that it was attempting to eliminate the “badges, incidents and relics of slavery.”  The provision is thus unconstitutional.  See McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (stating that Congress is due deference on the means by which it accomplishes legitimate ends, but not the ends themselves).

Even if Congress had claimed that it had enacted Section 249(a)(1) in order to prevent slavery’s return, the provision would still be unconstitutional.  When Congress makes a dubious claim that it is motivated by a desire to effectuate the Thirteenth Amendment’s ban on slavery, the proper standard to apply is the “congruence and proportionality” test of City of Boerne v. Flores, 521 U.S. 507 (1997).  Such a standard sidesteps the need for the Court to directly address the issue of Congress’s sincerity and instead applies an objective test of whether Congress’s solution fits the problem it purports to address.

Section 249(a)(1) is in no way “congruent and proportional” to the problem of slavery.  No one claims that slavery could return without Section 249(a)(1).  Instead it is clear that Congress is motivated by the desire to rid the nation of bias crimes—a perfectly understandable goal, but not a federal goal.  In doing so, however, it imposes substantial costs on the American criminal justice system, especially double jeopardy concerns.  In situations in which there is a real federal interest at stake, these costs may be tolerable—but not when no real federal interest is at issue.

Even if the “rationality standard” of Jones v. Alfred Mayer Co., 392 U.S. 409 (1968), and Shelby County v. Holder, 133 S. Ct. 2612 (2013), applies instead, Section 249(a)(1) would be unconstitutional.  As Shelby County makes clear, even a rationality standard requires that current burdens be justified by current needs.  The threat of slavery today is a mere phantom; the threat of double prosecutions in emotionally-charged cases is real.  See infra at Part B.

The Tenth Circuit conceded the strength of the argument against Section 249(a)(1) when it stated, “[Petitioner’s] arguments raise serious federalism questions.”  But it felt helpless to address them, stating that “in light of Jones it will be up to the Supreme Court” to consider them.

The Tenth Circuit erred in concluding that Jones is an obstacle to holding Section 249(a)(1) unconstitutional.  Jones need not be overruled in order to conclude that Congress overreached in passing Section 249(a)(1).  Jones was concerned with a Reconstruction Era statute, which it interpreted to ban private discrimination in the sale of real estate.  Whatever the correct interpretation of that statute, there is no doubt that eliminating slavery and preventing its return was the first, second, and third thing on the minds of the members of Congress who passed that 1866 statute.  That is in stark contrast to the HCPA more than a century later.

Section 249(a)(1) is unlikely to be the only statute of the near future premised on an expansive reading of Section 2.  There has been a growing movement in both academia and Congress to use the Thirteenth Amendment to address a variety of social ills thought to be in some way traceable to, or aggravated by, slavery—ranging from payday lending to race-selective abortion to “hate speech.”   Granting certiorari in this case obviates the need for future multiple constitutional challenges .  An ounce of Constitutional prevention is worth a pound of cure.

This reply brief discusses the applicability of Shelby County v. Holder to the U.S. v. Cannon case.

Download the full brief here: 13ASupplementalReplyFINAL(4)