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Judge Harry Pregerson, Champion of Federalism:
In a dissent filed today in United States v. Reynard, Judge Pregerson argued that the DNA Analysis Backlog Elimination Act of 2000 (the "DNA Act") is unconstitutional because it exceeds Congress's authority. The DNA Act compels those convicted of qualifying federal crimes to submit to DNA collection as a condition of being released on federal probation or supervised release. In his dissent filed today, Judge Pregerson argued that this law exceeds the Commerce Clause power even after Raich:
  [B]y passing the DNA Act, Congress is attempting to regulate something that it — and nobody else — has put into the stream of commerce. Reynard's DNA — while housed in his body — is not a "thing" in interstate commerce until the government, under the DNA Act, compels the DNA's extraction by drawing blood from a parolee and places the DNA in the stream of commerce for analysis. Congress may not bootstrap its authority to regulate purely local activity under the Commerce Clause. If the government is allowed to regulate anything that it puts into the stream of commerce, its powers under the Commerce Clause would be without limit. "To be sure, 'the power to regulate commerce, though broad indeed, has limits.' " Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003) (quoting Maryland v. Wirtz, 392 U.S. 183, 196 (1968)). By arguing that Condon authorizes Congress to regulate Reynard's DNA only after the government has placed it in interstate commerce, the government puts the proverbial cart before the proverbial horse.
  Because passage of the DNA Act cannot be justified under any of the three "categories of regulation in which Congress is authorized to engage under its commerce power," Raich, 125 S. Ct. at 2205, I agree with Reynard that passage of the DNA Act exceeds Congress's power under the Commerce Clause.
  First Judge Reinhardt, now Judge Pregerson. I wonder if these Judges want to bring back the Constitution-in-Exile? (Hat tip: Decision of the Day)
Matt Tievsky (mail):
He seems to be right about DNA and commerce, but does the Commerce Clause really set any limit on the conditions that Congress can impose upon early release (assuming that's what this is)? What about required periodic meetings with law enforcement officers as a condition of probation--where's the interstate commerce in that?
1.12.2007 4:00pm
Tracy Johnson (www):
Why does the dissent get all the commentary. Makes me wonder what the ruling actually was.
1.12.2007 4:02pm
LotharoftheHillPeople:
Tracy,

Man bites dog always gets the commentary.
1.12.2007 4:08pm
AF:
You seem to be suggesting Reinhardt and Pregerson are hypocritical for following Supreme Court precedents they (presumably) don't agree with. Isn't that their job?

[OK Comments: AF, your sense of what I'm suggesting is pretty far off. My impression, based on reading hundreds of their opinions over the years, is that Pregerson and Reinhardt are chiefly opportunists. That is, they will each take whatever argument they can find to try to justify the result they want. Do you disagree?]
1.12.2007 4:08pm
AF:
Hmmm. Aren't you at least making fun of them, given that they probably don't want to bring back the so-called Constitution in Exile? If not, what is your point?
1.12.2007 4:22pm
Anonymous_ (mail):
I'm totally confused. Why does there need to be *any* commerce link to the DNA extraction? Reynard was convicted of a federal crime (bank robbery), and he doesn't claim that Congress lacked consitutional power to pass the bank robbery statute. Isn't Necessary and Proper all you need at this point?

Prison isn't a regulation of interstate commerce either, but it can be imposed after a conviction for a federal offense as necessary and proper to carrying into execution the enumerated power invoked by the criminal statute. In other words, having written Part II.E.1 of the opinion, why does the court need to reach the commerce question in II.E.2-.3?

This seems pretty embarassing for Pregerson...
1.12.2007 4:22pm
Steve:
It seems intuitive to me that Congress would have the power to regulate federal prisoners and the conditions of federal supervised release programs. How strange.
1.12.2007 4:27pm
Just an Observer:
I was surprised that the majority did not cite McCulloch v Maryland, although it did mention "necessary and proper" with respect to the Commerce Clause.

As I recall, the dicta in McCulloch that seminally explained and defined the Necessary and Proper Clause reasoned that almost the entire federal penal code -- nowhere mentioned in the Constitution except for a handful of specific offenses -- was derived from the N&P Clause.

I should think that the collection of DNA is arguably incidental to the operation of the federal penal system itself, just like fingerprints. The very power actually to punish almost any federal crime by imprisonment is an implied power, as is the establishment and operation of the federal prison system. The criminal statutes themselves, which define various acts that are punishable, still need ultimate grounding in the Commerce Clause or some other enumerated power.
1.12.2007 4:30pm
Henri LeCompte (mail):
What about fingerprints? I've never understood why there is such hoopla about DNA, when there never was a peep about fingerprint collections.
1.12.2007 4:33pm
Bryan DB:
Anonymous_,
I'd agree with your point if Congress said it needed to get the DNA to provide law enforcement power under the N&P clause, but here the taking is based on the person's *releas* from custody, and the DNA isn't *necessarily* needed for the conviction in the first place.

I wonder, instead, if this would be an unreasonable seizure of DNA if the DNA isn't needed for the initial conviction. That doesn't seem like it can be right, since the same objection would hold to the collection of fingerprints, but I can't at the moment think of why.
1.12.2007 4:33pm
LTEC (mail) (www):
Let me get this straight.

A man spends years in a prison cell. He has to use the toilet in public, and he is frequently raped. And we're discussing whether or not he must "submit to DNA collection" -- that is, have his cheek swabed -- in order to be released.

This is crazy.
1.12.2007 4:34pm
AF:
Orin, I have not read enough of Reinhardt's and Pregerson's opinions to form an overall opinion of whether they are opportunists. But I do think there's a good-faith argument to be made for liberal federalism. Federalism, as I think you'd agree, does not necessarily entail the racism and reaction with which it has been associated in the past. If liberals find -- after some prodding by the Rehnquist Court -- that limits on the Commerce Clause aren't so bad after all, can't that be seen as evolution rather than opportunism?

[OK Comments: I don't know what "liberal federalism" is, or why we should focus on how to characterize judicial assessments of the desirability of binding precedents. The post is about a specific case, not whether it is in some sense desirable for particulr judges to pick up certain legal arguments.]
1.12.2007 4:47pm
Steve:
If liberals find -- after some prodding by the Rehnquist Court -- that limits on the Commerce Clause aren't so bad after all, can't that be seen as evolution rather than opportunism?

Both liberals and conservatives tend to enjoy federalism to the precise extent that it allows their policy goals to be realized. When Republicans controlled the federal government, for example, they suddenly fell out of love with the notion. Liberals realized at some point that allowing states to experiement with gay marriage was a much better result than seeing it banned at the federal level, and so on.

The decision under discussion here just seems flat-out arbitrary.
1.12.2007 4:55pm
AF:
I hasten to add that Pregerson's dissent here seems grievously wrong. Reinhardt's opinion in United States v. McCoy, in contrast, strikes me as among the most convincing limitations of the Commerce power in modern jurisprudence -- far more so than Lopez, Morrison, or Pregerson's opinion in Raich. So perhaps the problem for me is lumping the two jduges together, at least with respect to the Commerce Clause.
1.12.2007 4:56pm
AF:
OK, OK, but your point as I understood it wasn't just about this dissent -- you broadened it to include Reinhardt's McCoy decision and the "abstract concept" of the Constitution in Exile.
1.12.2007 4:58pm
Cornellian (mail):
First Judge Reinhardt, now Judge Pregerson. I wonder if these Judges want to bring back the Constitution-in-Exile?

Sadly, their attempts are doomed to failure at the hands of self-proclaimed originalists like Scalia. Irony indeed.
1.12.2007 5:16pm
JohnO (mail):
I can't say I have read much written by Pregerson, but I am firmly of the view that Reinhart is an opportunist.
1.12.2007 9:10pm
Kovarsky (mail):
the commerce clause is the ultimate rorschach test. it's the federalists' due process clause.
1.12.2007 10:19pm
Trevor Morrison (mail):
Note that Pregerson wrote the Ninth Circuit's majority opinion in Raich. Now *that* was opportunism.
1.12.2007 10:22pm
NickM (mail) (www):
Pregerson has been described as Reinhardt minus 30 IQ points. (I first heard this characterization from a law professor well known to at least one of the Conspirators.)

He's definitely a opportunist (or a results-oriented judge - the categories overlap greatly), but lacks the intellectual firepower to realize when his opportunism is nonsensical - here, as multiple commentators have pointed out, Congressional power isn't from the Commerce Clause, but from the Necessary and Proper Clause.

Nick
1.13.2007 7:39pm
John D. (mail):
I simply wonder if Pregerson has ever stricken a federal statute on the basis of the commerce clause before. One thing is for sure; he and Reinhardt are a prosecutor's worst nightmare. I don't believe either judge has ever affirmed a death penalty.
1.13.2007 9:36pm
Lev:
In a dissent filed today in United States v. Reynard, Judge Pregerson argued that the DNA Analysis Backlog Elimination Act of 2000 (the "DNA Act") is unconstitutional because it exceeds Congress's authority.


Congress' authority under the commerce clause, you mean.

I have to ask, if Congress has the authority to pass the DNA bill and impose its conditions on federal prisoners under one of its other powers, as Pregerson seems to have agreed, what difference does the commerce clause make? It's irrelevant.
1.14.2007 12:13am
Bored Lawyer:

As I recall, the dicta in McCulloch that seminally explained and defined the Necessary and Proper Clause reasoned that almost the entire federal penal code -- nowhere mentioned in the Constitution except for a handful of specific offenses -- was derived from the N&P Clause.


This seems a bit exaggerated. Why is not the power to regulate something ("commerce among the states") include the power to impose criminal sanctions for the most egregious violations of such regulation? If the Commerce Clause includes the power to, for example, regulate labelling of foods and drugs sold in interstate commerce, then why couldn't criminal sanctions be imposed upon, for example, blatantly fraudulent labelling of such goods?
1.14.2007 2:09pm
ReaderY:
This has nothing to do with interstate commerce, it's a prison regulation setting condition for early release. The Federal Government is regulating its own internal affairs, not interstate commerce.
1.17.2007 1:07am