The memo is here, H/T Balkinzation. In part, it reads:
As we explained in 2000, see Senate Report at 16-18, we believe Congress has authority under section 2 of the Thirteenth Amendment to punish racially motivated violence as part of a reasonable legislative effort to extinguish the relics, badges and incidents of slavery. Congress may rationally determine, as it would do in S. 909, that “eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude,” and that “slavery and involuntary servitude were enforced . . . through widespread public and private violence directed at persons because of their race.” S. 909 § 2(7); see also H.R. 1585, 110th Cong., § 1023(b)(7) (2007) (same).
Like the current 18 U.S.C. § 245, proposed section 249(a)(1) of title 18 would not be limited by its terms to violence involving racial discrimination: It would criminalize violence committed “because of the actual or perceived race, color, religion, or national origin of any person.” S. 909 explains (§ 2(8)) that “in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13th, 14th, and 15th amendments.”
Given our conclusion that Congress possesses authority to enact this provision under the Thirteenth Amendment, we do not address whether Congress might also possess sufficient authority under the Commerce Clause and/or the Fourteenth Amendment. See United Slates v. Nelson, 277 F.3d 164, 174-75 & n.10 (2d Cir. 2002).
Very interesting that they justify this based on the Thirteenth Amendment, which reads:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.Section 2. Congress shall have power to enforce this article by appropriate legislation.
Congress may prohibit the second category of hate crime acts that would be proscribed — certain instances of actual or attempted violence directed at persons “because of the[ir] actual or perceived religion, national origin, gender, sexual orientation, or disability,” § 249(a)(1)(A) — pursuant to its power under the Commerce Clause of the Constitution, art. I., § 8, cl. 3.
Another possibility is that either Kagan or one of her superiors in the Obama Administration secretly disagrees with the Supreme Court’s most expansive Commerce Clause precedents, such as Gonzales v. Raich, and does not want to see them extended. I hope this is true, but it seems unlikely for any number of reasons. I highly doubt that either Kagan or other high-ranking members of the Obama Justice Department disagree with the near-universal consensus among liberal jurists and legal scholars in favor of virtually unlimited congressional Commerce Clause authority.