I previously blogged about the OLC’s memo justifying portions of the Hate Crimes Act on the 13th amendment, and not the 14th amendment and the the commerce clause.

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).

I commented:

“OLC then discussed Lopez and Morrison, but curiously did not discuss Raich. Very odd, especially in light of the fact that SG Kagan did not argue that the Commerce Clause justified SORNA in Comstock. See Ilya Somin’s interesting post here: Are there movements in the Obama White House to limit Congress’s Commerce Power? I hope so.”

Professor Magliocca at Concurring Opinons has an interesting comment, that seems to support my theory.

A few weeks ago the President signed the Matthew Shepard Hate Crimes Prevention Act into law.  The Office of Legal Counsel issued an opinion concluding that the Act is constitutional under Section Two of the Thirteenth Amendment, relying heavily on the Second Circuit’s analysis in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002).

This could be a significant doctrinal development.  The OLC’s analysis, of course, was driven by concern about whether a federal hate crimes bill would be vulnerable under the Supreme Court’s holding in United States v. Morrison. There’s more going on here though. The Thirteenth Amendment, unlike the Fourteenth, does not have a state action requirement.  To the extent that lawyers start using the Thirteenth to sustain congressional action on racial discrimination, that would render Morrison a dead letter.  This line of thought was rejected in the Civil Rights Cases (over Justice Harlan’s dissent), but may be making a comeback.

Does the Obama Administration fear Morrison? Or do they just want to reign in the Commerce Clause Jurisprudence? How does Comstock figure into this? Questions to be resolved.