Jones v. United States - Oral Argument - March 21, 2000 Page 15

Jones v. United States

Media for Jones v. United States

Audio Transcription for Opinion Announcement - May 22, 2000 in Jones v. United States

Audio Transcription for Oral Argument - March 21, 2000 in Jones v. United States

Antonin Scalia:

It didn't say any arson affecting commerce.

That would have been the broadest possible use of the affecting commerce language.

It said arson of a building used in an activity affecting commerce.

Michael R. Dreeben:

Well, it could have also passed a statute that had no jurisdictional element at all.

Ruth Bader Ginsburg:

Mr. Dreeben, on that, the emphasis on used in in... in U.S. v. Mennuti... Judge Friendly thought that that was a significant distinction.

The phrase, used in an activity, was different from activity affecting interstate commerce.

At least he thought and so did his fellow panel members that the used in made all the difference.

Michael R. Dreeben:

Yes, but I think that this Court ended up disagreeing with Justice Friendly's analysis of the arson statute because the property that was at issue in Mennuti was available for rental, and Judge Friendly did not believe that that was a sufficient basis for covering the... the conduct.

And this Court disagreed.

Ruth Bader Ginsburg:

Well, it could be that... that decision certainly was limited pro tanto, but it doesn't, it seemed to me, wipe out entirely the point that used in an activity is different from an activity affecting interstate commerce.

Michael R. Dreeben:

Well, I concede that much.

What... what I am trying to do is... is explain that this Court's decision construing the statute in Russell made it clear that it goes to the limits of the Commerce Clause authority along--

Ruth Bader Ginsburg:

But it coupled it... it coupled it with business property.

Michael R. Dreeben:

--It did.

But at the time that the... that the bill was introduced, it had a specific for business purposes limitation in the statute.

That was deliberately deleted by the drafters of the bill before it was enacted, and--

Antonin Scalia:

Maybe because they thought this... this other language was an adequate substitute for it.

Michael R. Dreeben:

--Well, I think what they... what--

Antonin Scalia:

I mean, I'm not sure that helps your case or hurts your case.

I don't know which.

Michael R. Dreeben:

--Well, what the record in the legislative history shows is that there were... were hearings on the bill that brought to the attention of Congressmen that there were burnings of churches and police stations and other buildings that were not used for business purposes, and that legislators objected to the restriction of a bill that would deny the Federal Government the ability to investigate and prosecute cases involving those kinds--

Antonin Scalia:

You think it covers the burning of a church?

Michael R. Dreeben:

--Yes.

Antonin Scalia:

Even a church that isn't mortgaged.

Michael R. Dreeben:

Well, I think that we need to show something that will connect it to interstate commerce.

Antonin Scalia:

But then... but you're frustrating this legislative history you've just talked about.

Michael R. Dreeben:

No.

I think the--

Antonin Scalia:

You seem to think that it... it should have covered all churches.

Michael R. Dreeben:

--The legislative history shows that because churches were not covered under the restriction in the bill that said it covers property used for business purposes, Congress deleted the language that said for business purposes.