The 13th, 14th, and 15th Amendments each conclude with nearly-identically-worded sections giving Congress powers to enforce the Amendment:

13th Amendment, s. 2: Congress shall have power to enforce this article by appropriate legislation.

14th Amendment, s. 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

15th Amendment, s.2: The Congress shall have power to enforce this article by appropriate legislation.

The Court has found that each section should be interpreted similarly. In the wake of Shelby County, one of the most important lingering questions is whether the Court has imported the heightened standard of scrutiny for Section 5 of the 14th Amendment (congruence and proportionality from Boerne v. Flores) to Section 2 of the 15th Amendment. As Rick Hasen noted, though it flagged the issue in NAMUDNO, CJ Roberts ignored Boerne, except for a single sentence:

“Both the Fourteenth and Fifteenth Amendments were at issue in Northwest Austin . . . and accordingly Northwest Austin guides our review under both Amendments in this case.”

Eventually, the Court will have to address what the appropriate standard is for Section 2 of the 15th Amendment, and whether we are no longer under the deferential “rational basis” standard set forth in South Carolina v. Katzenbach.

But, there is another Reconstruction Amendment that may be revisited in light of Shelby County.

Which brings me to the case of United States v. Cannon, argued before the 5th Circuit in Houston this morning. Three defendants were convicted under a section of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act that prohibits crimes that were committed “because of” the race, color, religion or national origin of someone, without any commerce nexus. In 2010 Congress passed this section, based on Congress’s powers under Section 2 of the 13th Amendment, and not on Congress’s commerce powers.

During the oral argument today, counsel for all three defendants, as well as Gail Heriot, arguing as amicus curiae, contended that Congress lacks the power under section 2 to enact the Hate Crimes Prevention Act. Counsel stopped short of asking the panel to find that the Boerne “congruence and proportionality” standard applies, and suggested that even under the “rationality standard,” the law would not survive.

The panel–Judges Elrod, Graves, and Reavley–was very lively, and engaged the issue. The panel also ordered additional briefing on the impact of Shelby County on this case. To the chagrin of the court, DOJ did not file a 28(j) letter to address this issue, and took the position that Shelby County did not alter the standard. Judge Elrod referred to Shelby as the “elephant in the room.”

I offer no opinion on how far  the “badges” or “incidents” of slavery reach–the government contended that it would include a federal cause of action any crime committed “because of” race. Judge Elrod asked if such a broad interpretation of section 2 could transform any bar fight involving racial slurs into a federal crime.  The government seemed to concede that a bar fight, coupled with racial slurs, could constitute a hate crime, and resisted providing any additional limiting principle. Amici contended, more broadly, that the Act gives the government a general police power.

One issue that did not interest me is whether Section 2 of the 13th Amendment should be treated differently than Section 5 of the 14th Amendment or Section 2 of the 15th Amendment. Unlike the 14th and 15th Amendments, which operate directly on the states, the 13th Amendment stands alone as the only amendment (other than repealed prohibition) that operates directly against individuals. Only after much prodding did the DOJ attorney address this issue, and suggested that the 14th and 15th Amendments have federalism implications, as they operate on the states, but the 13th amendment does not, as it only operates on individuals.

The government also suggested that the Hate Crimes Act operated as a form of cooperative federalism, as the states and federal governments can work together to police hate crimes. Judge Elrod questioned this position, and noted that Texas was prosecuting the defendants under the state hate crime act, until the Feds swooped in. (As alluded during oral argument, this statute may soon become relevant in the Zimmerman prosecution, should a federal hate crime, in the absence of a commerce nexus, be brought).

Superficially, the government’s position has some merit–the 14th and 15th Amendments operate on the state, while the 13th Amendment does not. However, I don’t think that this position fully embraces how the Court has viewed federalism in NFIB v. Sebelius, Bond v. United States, and other important federalism cases. Federalism is not simply about the relationship between the states and the federal government. Federalism provides important structural limitations, through the auspices of the state, to protect individual liberty. As the Chief Justice wrote for the Court in NFIB:

“State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992) (internal quotation marks omitted). Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a dis- tant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison). The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9–10).

The Court has held that principles of federalism place limitations on the 14th Amendment in Boerne, and (most likely) the 15th Amendment in Shelby, as a means to protect the sovereignty of the states, which is a direct structural protection of individual liberty (argue amongst yourselves what liberty interests striking down RFRA or VRA protects).

So, the argument could go, enforcing this law under section 2 of the 13th Amendment could infringe on individual liberty, viz state sovereignty. I can think of two possible reasons why this works, though I don’t know that I’m persuaded of either.

First, as noted during oral argument today, the Hate Crime Prevention Act federalizes what has historically been a state crime. Here, the act intrudes on a area of state sovereignty, simple assaults with no nexus to interstate commerce, that have been historically the provence of the state governments. In light of NFIB, this is arguably an even greater intrusion than that of health care, which 5 members of the Court found to have been a long-standing area reserved for the states. This echoes concerns in both Morrison and Lopez (from Texas!) that certain functions of criminal law, reserved to the states, should not be federalized (though the Court’s opinions in Comstock and Kebeodeaux pour cold water on that). Though this concern is somewhat mitigated in light of the exception to double jeopardy for dual sovereignty. That is, a person could be convicted both under the Texas Hate Crime law, and the federal law. But that does little to assuage a citizen of Texas, convicted under the laws of Texas, from also being prosecuted a second time for what has historically only been a crime under state law.

Second, the more powerful argument, that makes less sense in light of the effect of the Hate Crime Prevention, focuses on the importance of  federalism to allow the states to serve as a bulwark against federal impositions. In this context, this argument is difficult to swallow, as the federal law was aimed at prosecuting three white men, bearing white supremacist tattoos, who got into a fight with an african-american man, while hurling racial epithets (I haven’t read the briefs, but there is also a sufficiency argument pending). But, the Court also viewed a law making health insurance available to more poor people (let’s take Congress at their word for a moment) as a burden. Same for a law that protected violence against women. Or a law that protected religious freedoms (RFRA). So, to the extent that Texas could say that their own law is better aimed at protecting the people of Texas (as I’m sure Texas most certainly would), and that this federal imposition impedes that local governance, it intrudes on state sovereignty, and is thus beyond Congress’s powers under Section 2 of the 13th Amendment.

I don’t know that I’m persuaded by either rationale, but after NFIB and Shelby County, I can see the Court following one of these paths.

You can read an amicus brief submitted in the case on behalf of three commissioners of the U.S. Commission on Civil Rights, Todd Gaziano, Gail Heriot, and Peter Kirsanow. For purposes of full disclosure, I should note that the author of the brief, Alison Schmauch is a good friend, but I had no involvement with the brief. Alison, and Gail Heriot, who argued the case, also authored a piece in Engage on this topic.

Update: Will Baude blogs about the case at Volokh.

Will also addressed the Hate Crimes Prevention Act here:

Instead, the Shepard Act has been defended under the Thirteenth Amendment’s power to pass “appropriate legislation” to “enforce” the abolition of “slavery [and] involuntary servitude.” In the late 1960s, the Court interpreted this power to extend to private race discrimination in housing, in turn relying on historical references to a power to abolish the “badges and incidents of slavery.” In 1971, another case upheld the power to reach a private conspiracy.

But it is hard to read more modern cases, like Shelby County, without thinking that the Court now has a much more restrained view of the power to enforce the Reconstruction Amendments than it did 40-50 years ago. Shelby County demonstrates a strong willingness to normalize the Reconstruction Amendments by construing their powers in line with the Necessary and Proper Clause and even interpreting them in light of the prior-enacted Tenth Amendment. In contrast, the Tenth Circuit’s recent decision upholding the Shepard Act concluded that “The Thirteenth Amendment, enacted after the Tenth Amendment” overrides any implicit limitations of the Tenth. I don’t see the Court using similar reasoning.

Perhaps stare decisis would lead the Court to uphold the Shepard Act under the Thirteenth Amendment, but I strongly suspect that it would find grounds to distinguish its prior cases from a general prohibition of all race-motivated assault. A Court is much more likely to be motivated to distinguish prior cases if it is convinced they are not rightly decided as a matter of first principles. (Here, by the way, is a prior post from Ilya on the Thirteenth Amendment power.)