The criminal trial and all the constitutional protections it affords criminal defendants is becoming a relic of the past.1John Gramlich, Only 2% of Federal Criminal Defendants Go to Trial, and Most Who Do Are Found Guilty, Pew Rsch. Ctr. (June 11, 2019), https://perma.cc/GX5K-GL2E. In the federal system, 97.6% of convictions in 2019 were not the product of a jury or judge rendering a guilty verdict after a trial.2Glenn R. Schmitt & Amanda Russell, U.S. Sent’g Comm’n, Overview of Federal Criminal Cases: Fiscal Year 2019, at 8 (2020). Instead, almost every conviction resulted from a criminal defendant’s decision to plead guilty to the crime charged.3Id. This decision is loaded with consequences, including foregoing the right to a jury trial, to counsel, to witness confrontation and cross-examination, to put on evidence, to testify, to plead not guilty, and to have the government prove its case beyond a reasonable doubt.4See Fed. R. Crim. P. 11(b)(1). These and other protections aim to ensure the criminal justice system gets it right—convicting criminal defendants who committed a crime and, importantly, acquitting those who did not. Due to the scarcity of trials, the conviction of a criminal defendant will likely occur at a change-of-plea hearing, where the defendant is stripped of numerous constitutional protections and is thus highly vulnerable. It is this heightened vulnerability that amplifies the importance of constitutional protections worked into the change-of-plea-hearing framework to make sure that even in this alternative, barebones process, the system gets it right.
One of the constitutional protections required at a change-of-plea hearing is Federal Rule of Criminal Procedure 11(b)(3)’s factual basis inquiry. This rule requires the federal judge to determine that there is a factual basis for a criminal defendant’s guilty plea before accepting the plea and entering judgment against him.5See id. 11(b)(3). While the factual basis inquiry is not constitutionally mandated, its purpose—to ensure that a guilty plea is knowing and voluntary—is.6See McCarthy v. United States, 394 U.S. 459, 465 (1969). When meaningfully followed, Rule 11(b)(3) prevents a criminal defendant from being convicted of a crime that he does not know he did not commit.7See Fed. R. Crim. P. 11 advisory committee’s note to 1974 amendment.
But the problem is that the factual basis inquiry is not always meaningfully performed. In some instances, a prosecutor may ask a criminal defendant “yes or no” questions about each element of the crime to provide the factual basis that the defendant committed it. Often, the criminal defendant does not have personal knowledge of at least one element. In felon-in-possession-of-a-firearm cases, for example, an element of the crime is that the firearm has been in or affected interstate commerce.818 U.S.C. § 922. A criminal defendant likely does not personally know whether the firearm he possessed ever crossed state lines. And in drug-possession cases, a criminal defendant charged with possession of powder cocaine likely cannot discern with the naked eye whether the substance he possessed was indeed cocaine or powdered sugar, nor does he likely know the amount of the substance. In these cases, a factual basis inquiry relying solely on the criminal defendant’s personal knowledge is insufficient to satisfy Rule 11(b)(3). Indeed, without personal knowledge about an element of the crime charged, the criminal defendant’s testimony amounts to no evidence at all as to that element. So why do prosecutors continue to do this?
The simple answer is because judges allow it. The change-of-plea hearing has a formalistic air to it. The seemingly simple task at hand is for a criminal defendant to change his plea from not guilty to guilty, but doing so is complicated. At the hearing, the judge follows the long list of all the things she must say and do before accepting a guilty plea in accordance with the US Constitution and the Federal Rules. The defense attorney instructs the criminal defendant to answer the judge’s and prosecutor’s questions truthfully but simply. Often, when you’ve been to one change-of-plea hearing, you’ve been to them all. Unsurprisingly, these hearings become formulaic. The Federal Rules are recited but are not necessarily followed and contemplated thoroughly.
Judges and prosecutors must do better, even if this comes at a cost. Meaningfully engaging in the factual basis inquiry may erode judicial economy by requiring the government to put on some evidence, such as proof about where a firearm was manufactured or that chemical testing revealed the white powder found on a criminal defendant really was five grams of cocaine. Judges may also need to make the inconvenient decision to reject a criminal defendant’s plea when there is no evidence of the interstate commerce element or drug type or amount, and make the parties try again at another hearing.9See United States v. Lewis, 100 F.3d 49, 49–50 (7th Cir. 1996); Fed. R. Crim. P. 11 advisory committee’s note to 1966 amendment (“The normal consequence of a determination that there is not a factual basis for the plea would be for the court to set aside the plea and enter a plea of not guilty.”).
But this hit to judicial economy provides criminal defendants with due process protections in a setting in which they are vulnerable and need the Constitution the most.10U.S. Const. amend. V; id. XIV, § 1. Virtually every convicted federal criminal defendant is convicted via a change-of-plea hearing, stripped of numerous constitutional protections.11See Fed. R. Crim. P. 11(b)(1); Schmitt & Russell, supra note 2, at 8–9. Many of these defendants also have been or will be convicted of crimes with at least one element that is not a foregone conclusion and is outside the realm of their personal knowledge.12See Fed. R. Crim. P. 11(b); Schmitt & Russell, supra note 2, at 8–9. Requiring evidence of every element of the crime thus ensures that all criminal defendants will not plead guilty to a crime they do not know they did not commit. It avoids the ultimate injustice—the wrongful deprivation of liberty. With such stakes, judicial economy should freely fall.
Part I of this Article discusses Federal Rule of Criminal Procedure 11(b)(3) and its constitutional underpinnings. Part II then delves into the myriad of federal crimes that contain an element that is not a foregone conclusion and that a criminal defendant likely does not have personal knowledge about, specifically focusing on the crimes of being a felon in possession of a firearm or ammunition and those involving controlled dangerous substances. The former contains the interstate commerce jurisdictional hook as an element, and the latter requires proof of the chemical makeup and amount of the recovered substance. These elements are far from foregone conclusions and are likely outside the personal knowledge of the criminal defendant and must therefore be supported with evidence to satisfy Rule 11(b)(3)’s factual basis inquiry. This Part additionally analyzes the questionable constitutionality of the interstate commerce substantial effects test—which in some instances is the entire basis for federal jurisdiction to enact a law (i.e., the interstate commerce jurisdictional hook)—as another ground to require the district court to engage in a meaningful factual basis inquiry. Part III finally opines that not only will meaningful factual basis inquiries place a minimal burden on the government, but they will also appropriately place a criminal defendant’s constitutional rights above the minimal erosion it will cause to judicial economy.
I. The Factual Basis Inquiry of Federal Rule of Criminal Procedure 11(b)(3)
Federal Rule of Criminal Procedure 11(b)(3) requires that “[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”13Fed. R. Crim. P. 11(b)(3). This means
[t]he court should satisfy itself, by inquiry of the defendant or the attorney for the government, or by examining the presentence report, or otherwise, that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.14Id. advisory committee’s note to 1966 amendment.
The factual basis inquiry itself is not constitutionally mandated, but the voluntary and knowing nature of a guilty plea is.15McCarthy v. United States, 394 U.S. 459, 465 (1969) (citing Waddy v. Heer, 383 F.2d 789 (6th Cir. 1967). Pleading guilty necessarily involves waiving constitutional protections. “For this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’”16Id. at 466 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). As a result, if a criminal defendant’s guilty plea is not “equally voluntary and knowing,” then “it has been obtained in violation of due process and is therefore void.”17Id. (citations omitted).
This inquiry is designed to “protect a defendant who is in the position of pleading [guilty] voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.”18Fed. R. Crim. P. 11 advisory committee’s note to 1966 amendment. It also protects a criminal defendant from pleading guilty to a crime when he actually only committed a lesser included offense than the crime charged. Take a criminal defendant charged with possession of a controlled dangerous substance (“CDS”) with intent to distribute as an example. He undoubtedly possessed the CDS, but the amount he possessed is just on the edge of an amount considered by the government to show he intended to distribute it.19See, e.g., Anderson v. State, 905 P.2d 231, 231 (Okla. Crim. App. 1995) (“Appellant contends the Legislature violated his right to Due Process by creating an irrebuttable factual presumption that one who possesses a larger amount of drug intends to disseminate it into society.”). In the criminal defendant’s mind, he never intended to distribute the CDS; it was just for personal use. The factual basis inquiry should reveal whether the criminal defendant actually intended to distribute the CDS. If he claims he did not, then there is no factual basis for the crime charged before the district court, or it shows he only committed (or is only willing to admit he committed) the lesser included offense of possession of CDS. By ensuring that evidence backs up a guilty plea, the factual basis inquiry instills confidence in the system that criminal defendants are only convicted of crimes they actually committed.
The factual basis inquiry also ensures that district judges make “the constitutionally required determination that a defendant’s guilty plea is truly voluntary.”20McCarthy, 394 U.S. at 465 (citations omitted); see also Machibroda v. United States, 368 U.S. 487, 493 (1962) (“Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” (quoting Kercheval v. United States, 274 U.S. 220, 223 (1927))); United States v. Murphy, 942 F.3d 73, 85 (2d Cir. 2019) (“A lack of a factual basis for a plea is a substantial defect calling into question the validity of the plea. Such defects are not technical, but are so fundamental as to cast serious doubt on the voluntariness of the plea.” (quoting United States v. Adams, 448 F.3d 492, 502 (2d Cir. 2006))). It may additionally reveal possible defenses to the crime charged of which the criminal defendant should be aware before entering a guilty plea.21See Carreon v. United States, 578 F.2d 176, 178–79 (7th Cir. 1978).
When adhered to, Rule 11 also contributes to the judicial system’s efficiency because it produces a record that “tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.”22McCarthy, 394 U.S. at 465. But again, the primary reason for the factual basis inquiry is protecting the criminal defendant’s due process rights by preventing him from pleading guilty to a crime he does not know he did not commit. The consequence of a district court’s failure to adhere to Rule 11’s requirements underscores its importance: his guilty plea is void and he “is entitled to plead anew.”23Id. at 463.
A. The Unconstitutionality of Some Factual Basis Inquiries
Because Rule 11 does not provide any guidance to district judges on how to conduct the factual basis inquiry, not every district judge approaches it the same way.24See Fed. R. Crim. P. 11 advisory committee’s note to 1966 amendment. But in every case, the district judge must determine that there is a factual basis for the plea—that facts exist to support a finding that each element of the offense charged is satisfied.25Id. at 11(b)(3). Consider the elements of the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1): (1) a person that is and knows he is a felon; (2) ships, transports, possesses, or receives a firearm or ammunition; (3) that traveled in or affected interstate commerce.2618 U.S.C. § 922(g)(1). Sometimes the extent of the factual basis inquiry at a change-of-plea hearing for this offense is along the lines of this exchange:
Judge: Government, please make your factual basis inquiry of the defendant.
Prosecutor: On November 11, 2019, were you in the Western District of Oklahoma?
Prosecutor: Did you know you were a felon?
Prosecutor: Did you possess a firearm?
Prosecutor: Would you agree with me that the government could prove that the firearm traveled in interstate commerce?
Prosecutor: Do you have any reason to dispute that the firearm traveled in or affected interstate commerce?
Prosecutor: No further questions.
The district judge can also consult the petition to enter a plea of guilty and the indictment to support her finding of whether a factual basis exists.27Fed. R. Crim. P. 11 advisory committee’s note to 1966 amendment. But that’s it; that’s all the district court has to rely on when making its factual basis determination under these circumstances.28See id.
The prosecutor touches on every element of the crime charged in this exchange, but this method nevertheless fails to establish the requisite factual basis for the district court to enter judgment against the criminal defendant. The criminal defendant has personal knowledge that he is a felon, that he knows he is a felon, and that he possessed a firearm. His testimony under oath to these facts and his admission of the same in his petition to enter a plea of guilty constitute actual evidence that the first two elements of the crime charged have a factual basis. But the same cannot be said about the final element—that the firearm traveled in or affected interstate commerce. In most cases, the criminal defendant has no idea whether the firearm he possessed ever crossed state lines, unless he himself traveled with the firearm. He likely purchased it in his home state or got it from a family member or friend close to home.29See Caroline Wolf Harlow, U.S. Dep’t of Just., Firearm Use by Offenders 1 (2001). Simply asking the criminal defendant under oath to agree with the prosecutor that the prosecutor could prove the firearm traveled in interstate commerce or asking whether the criminal defendant has any reason to dispute that it did is not evidence of anything if the criminal defendant has no personal knowledge that the firearm traveled in interstate commerce.
Rule 11(b)(3)’s factual basis inquiry is a low bar, but it still requires something—and this amounts to nothing.30See infra note 219 and accompanying text. To accept Rule 11(b)(3) as being satisfied under these circumstances not only thwarts its purpose of protecting a criminal defendant from unknowingly entering a guilty plea to a crime he did not commit, but it also treats an element of the crime—the interstate commerce element in this case—as a foregone conclusion, which it is anything but.
II. The Breadth of the Problem
Most federal criminal defendants lack personal knowledge of at least one element of their crime of conviction. In 2019, 34% of federal convictions involved crimes with either an interstate commerce element, like in the 5,733 illegal possession of firearms or ammunition cases, or the type or amount of a CDS as an element, like in the 20,393 drug cases.31See Schmitt & Russell, supra note 2, at 11, 13, 18. These criminal defendants probably did not know whether the firearms they were charged with illegally possessing ever crossed a state line, or the chemical makeup or weight of the drugs they were charged with illegally possessing. In 97.6% of the 76,538 federal cases resulting in a sentence, the criminal defendant was convicted via a guilty plea.32See id. at 8. Accordingly, in many cases, a factual basis inquiry that relies only on a criminal defendant’s testimony does not usually supply the factual basis that Rule 11(b)(3) mandates,33See, e.g., Lesane v. United States, No. 15-cv-3403, 2020 U.S. Dist. LEXIS 10040, at *2–3 (S.D.N.Y. Jan. 20, 2020) (upholding a conviction where the defendant had pleaded guilty while unaware of the offense’s required interstate commerce element). as these common elements—interstate commerce and type and weight of controlled substance—are not foregone conclusions.
A. Not a Foregone Conclusion: The Interstate Commerce Element in Felon-in-Possession Charges
The commerce power allows Congress to regulate the channels of interstate commerce, the instrumentalities of interstate commerce, and intrastate activities that substantially affect interstate commerce.34See U.S. Const. art. I, § 8, cl. 3; Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012) (opinion of Roberts, C.J.). Commercial products like firearms and ammunition are clearly not instrumentalities of interstate commerce. Thus, Congress may only regulate them if they have crossed a channel of interstate commerce,35See Nat’l Fed’n of Indep. Bus., 567 U.S. at 536 (opinion of Roberts, C.J.). or if an intrastate activity associated with a firearm or ammunition substantially affects interstate commerce.36See id. at 536–37.
1. Channels of Interstate Commerce
Not all firearms and ammunition have crossed a channel of interstate commerce. The national economy is extremely integrated and therefore much of commerce is interstate and international. This does not mean, however, that every commercial product has entered or crossed a channel of interstate or foreign commerce. Firearms and ammunition are no exception. American-manufactured firearms and ammunition, homemade firearms and ammunition, reloaded ammunition, and 3D-printed guns may never be shipped or transported in interstate or foreign commerce. As a result, the only way to satisfy the interstate commerce element of the felon-in-possession statute in these scenarios is if the firearm is analyzed based on its component parts and at least one of those parts crossed a state line, or if the firearm “affected” interstate commerce.3718 U.S.C. § 922(g); see, e.g., United States v. Lockwood, 789 F.3d 773, 778, 780–81 (7th Cir. 2015) (holding that the interstate commerce element was met because the explosive device’s end caps had been imported from China).
a. American Firearm Manufacturers
From 1986 to 2018, 172,520,642 firearms were manufactured in the United States.38Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Dep’t of Just., Firearms Commerce in the United States: Annual Statistical Update 1 (2020). Some purchasers could have bought these firearms in the same state in which they were manufactured and also live in that same state. If these purchasers never cause their firearms to cross state lines, then they have never been shipped or transported in interstate commerce. Thus, they have never entered a channel of interstate commerce.
b. American Ammunition Manufacturers
The same can apply to American-manufactured ammunition.39See, e.g., id. at 18 (reporting that the ATF Federal Firearms Licensing Center licensed 1,910 American ammunition manufacturers in 2019); NSSF Releases Most Recent Firearm Production Figures, Nat’l Shooting Sports Found. (Nov. 16, 2020), https://perma.cc/H8CV-SBRB (“An estimated 8.7 billion rounds of all calibers and gauges were produced in 2018 for the U.S. market.”). Some purchasers could have purchased this ammunition in the same state in which it was manufactured and also live in that same state. Thus, if these purchasers never cause their ammunition to cross state lines, then it has never been shipped or transported in interstate commerce.
c. Homemade Firearms
Before mass production, gunsmiths and blacksmiths made firearms from scratch.40James B. Jacobs & Alex Haberman, 3D-Printed Firearms, Do-It-Yourself Guns, & the Second Amendment, 80 Law & Contemp. Probs. 129, 137 (2017) (“[A]ll firearms in the early republic were made by blacksmiths or specialized gunsmiths until the founding of Remington Arms in 1816.”). But mass production did not extinguish the practice of homemade gun making.41Id. at 138. Although the amount of homemade guns is unknown, there is no doubt a long history of making homemade guns in this country.42Id. at 137–40 (noting that the number of currently existing homemade firearms in the United States is unknown and that 3D-printed firearms are part of a long history of American gunsmithing). Take “‘zip guns’ popular throughout New York City in the 1950s [or] guns made by prisoners,” for example.43Id. at 138 (quoting Bruce Barak Koffler, Zip Guns and Crude Conversions—Identifying Characteristics and Problems, 61 J. Crim. L. Criminology & Police Sci. 115, 116 (1970)). It is also easier than ever to learn how to make a firearm in your own workshop—“[d]o-it-yourself gunsmithing today is supported and facilitated by books, manuals, websites, associations, and videos that explain and illustrate step-by-step how to manufacture various types of firearms.”44Id. at 138.
As a result, although most firearms are privately manufactured and sold on the market, some are homemade and may never be shipped or transported across state lines.45See, e.g., United States v. Stewart, 451 F.3d 1071, 1072–73 (9th Cir. 2006) (criminal defendant had “machined and assembled” five machine guns at his residence); Mont. Shooting Sports Ass’n v. Holder, No. CV-09-147, 2010 U.S. Dist. LEXIS 104301, at *5 (D. Mont. Aug. 31, 2010) (plaintiff “wanted to manufacture firearms . . . consistent with the” Montana Firearms Freedom Act). The Montana Firearms Freedom Act declared that firearms and ammunition manufactured within the state and kept within the state were not subject to federal law. Mont. Shooting Sports Ass’n, 2010 U.S. Dist. LEXIS 104301, at *4. When a firearm is homemade, it is also more likely than not to be for personal use, and personal use is often limited to activities within one’s state of residence. Accordingly, as long as a criminal defendant charged with violating 18 U.S.C. § 922(g)(1) did not ship or transport a homemade firearm across state lines, the firearm has not been shipped or transported in interstate commerce. Furthermore, the interstate commerce element of the felon-in-possession statute cannot be satisfied without analyzing the component parts of the firearm or arguing it substantially “affected” interstate commerce.
d. Homemade Ammunition
Homemade ammunition can be “reloaded” or truly made from scratch. Ammunition is reloaded by refilling a shell casing with gunpowder and then adding a new primer and bullet.46Ian Urbina, A D.I.Y. Union of Artisanal Ammunition and 3-D Gunmaking, N.Y. Times, Oct. 7, 2018, at A14. Made-from-scratch bullets are as simple as melting down lead.47Id. Typically hobbyists reload used brass casings with homemade or commercially purchased lead bullets. See id. 3D-printing technology may soon make it possible for hobbyists to print their own plastic or metal shell casings. See Metal 3D Printing Ammunition, 3DEO (Feb. 27, 2018, 10:43 AM), https://perma.cc/8TR3-TY8U; Scott J. Grunewald, 3D Printing Shotgun Slugs with BronzeFill PLA Filament, 3DPrint.com (Nov. 3, 2015), https://perma.cc/EFM8-Q7GS. Not only do many firearm owners make their own ammunition to avoid paying its high and climbing price on the market, but some also do so as a hobby.48Urbina, supra note 46. Nearly five million of forty-three million hunters and sports shooters partake in making homemade ammunition.49Id.
Homemade ammunition may be shipped or transported in interstate commerce. An Oklahoma hunter may travel to Texas to hunt and take his homemade ammunition with him. But that same hunter probably uses most of his homemade ammunition to practice shooting his firearm in Oklahoma. If a criminal defendant is found to be in possession of ammunition and charged with violating 18 U.S.C. § 922(g)(1), then it is not a foregone conclusion that the interstate commerce element is satisfied for purposes of the felon-in-possession statute.
e. 3D-Printed Firearms
A little more technologically advanced than homemade firearms and reloaded ammunition, but still homemade, are 3D-printed firearms. Parts almost entirely made using 3D printing50Everything but the firing pin nail, as an entirely undetectable gun is against federal law. See Undetectable Firearms Act of 1988, Pub. L. No. 100-649, 102 Stat. 3816 § 2 (codified at 18 U.S.C. § 922(p)).—“a process of making three dimensional solid objects from a digital file”51What is 3D Printing?, 3DPrinting.com, https://perma.cc/2HF2-CNGW. 3D printers are widely available from retailers like BestBuy or Home Depot and computer-aided design files are often shared online for free. Def. Distributed v. U.S. Dep’t of State, 838 F.3d 451, 454 (5th Cir. 2016). In Defense Distributed, the court noted that the appellant’s computer-aided design files allowed any 3D-printer owner to produce a “single-shot plastic pistol called the Liberator and a fully functional plastic AR-15 lower receiver.” Id. at 455; cf. United States v. McGinnis, 956 F.3d 747, 751 (5th Cir. 2020) (noting that McGinnis was arrested after a search of his backpack revealed a 3D-printed AR-15 lower receiver).—comprise these firearms. Many industries use this technology to 3D-print products like dental implants, prosthetics, and movie props.523DPrinting.com, supra note 51. In 2012, for the first time, 3D printing technology produced the majority of the component parts of a firearm.53Andy Greenberg, 3D-Printed Gun’s Blueprints Downloaded 100,000 Times in Two Days (with Some Help from Kim Dotcom), Forbes (May 8, 2013, 5:12 PM), https://perma.cc/TL6P-SGPF.
A fully composed 3D-printed gun might never cross state lines, staying wholly within intrastate commerce. And although it is unclear whether a court would analyze a product’s interstate or intrastate nature based on the final, composed product or its component parts, every component part of a 3D gun printed by a 3D printer was made in the same state.54Unless one, of course, puts together a 3D-printed gun using component parts produced by different 3D printers located in different states. As long as the firing pin nail was also made in the same state and a criminal defendant did not ship or transport the 3D-printed gun across state lines, the gun has not been shipped or transported in interstate commerce.
2. Substantial Effects Test
A firearm or ammunition that has never traveled in a channel of interstate commerce or cannot be an instrumentality of interstate commerce does not come within the federal commerce power. A firearm or ammunition comes within the federal commerce power only if its component parts traveled in a channel of interstate commerce, and a district court accepts this dissection of the item as a valid way to analyze its interaction with interstate commerce,55See, e.g., United States v. Morrison, 529 U.S. 598, 659 (2000) (Breyer, J., dissenting) (recognizing that because “most everyday products or their component parts cross interstate boundaries,” legislators can tie many statutes regulating local activity to interstate commerce); United States v. Chambers, 408 F.3d 237, 247 (5th Cir. 2005) (“Since there was no evidence that any of the completed rounds distributed by Houston Cartridge Company which appellant possessed had been transported in interstate commerce as alleged in the indictment, appellant’s conviction must be reversed. Evidence that prior to the Texas assembly of the completed rounds by Houston Cartridge Company, the powder, primer and bullets (projectiles), which later became component parts of the completed rounds, had separately traveled to Texas from, respectively, Tennessee, South Dakota and Montana, none of which was in any way alleged in the indictment, may not be relied on to establish the ‘in or affecting commerce’ element of the offense because to do so would allow that element to be established on the basis of a set of facts wholly different, separate and distinct from the one set of facts particularly alleged in the indictment relevant to that element . . .”); United States v. Gresham, 118 F.3d 258, 265 (5th Cir. 1997) (holding that a bomb component was a firearm under 18 U.S.C. § 922 because Congress included an expansive definition of “firearm” in 18 U.S.C. § 922(a)(3) that plainly included any “component parts of a destructive device”); United States v. Johnson, 56 F.3d 947, 957 (8th Cir. 1995) (“Practically speaking, to interpret the carjacking statute to include situations where the motor vehicle’s component parts had moved in interstate commerce prior to assembly would require no great leap in logic and likely would not offend the Commerce Clause of the Constitution.”). or if the district court determines regulation of the intrastate activity substantially affects interstate commerce. American-manufactured firearms and ammunition, homemade firearms and ammunition, reloaded ammunition, and 3D-printed firearms all may fit into this category of firearms or ammunition that satisfy § 922(g)(1)’s interstate commerce element only if the government can show the regulation of their possession substantially affects interstate commerce. But categorizing firearms and ammunition in this way is not a foregone conclusion due to the questionable validity of the interstate commerce jurisdictional hook.
a. The Jurisdictional Hook
The Constitution grants Congress limited authority to enact laws.56See U.S. Const. art. I, §§ 8–9. It explicitly enumerates Congress’s legislative powers,57Morrison, 529 U.S. at 607. Chief Justice William Rehnquist repeated the words of Chief Justice John Marshall, writing that “[t]he powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Id. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)). about thirty in total.58U.S. Const. art. I. Some of these include the power to lay and collect taxes, to coin money, and to establish inferior courts.59Id. art. I, § 8. The Necessary and Proper Clause further empowers Congress to make laws that are “necessary and proper” to execute its powers.60Id. art. I, § 8, cl. 18. The states have jurisdiction over everything that is left—any power not assigned to a branch of the federal government.61U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”). For example, the Constitution says nothing about education. Thus, each state has the power to administer and regulate education within its borders.62See United States v. Lopez, 514 U.S. 549, 564 (1995) (noting that education is an area where the “States historically have been sovereign”). Compare U.S. Const. amend. X, with U.S. Const. art. I.
Congress may therefore only enact laws that are necessary and proper to execute only its enumerated powers. If a law does not fall within an enumerated power, then the states have the ability to legislate the issue.63See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 535 (2012) (opinion of Roberts, C.J.) (“If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.”). Accordingly, the thousands of federal laws on the books that seemingly have no apparent connection to an enumerated power all need a jurisdictional hook—an element in the statute that brings it within the purview of a federal legislative power.64See id. (citing United States v. Comstock, 560 U.S. 126 (2010)). One of the most commonly utilized jurisdictional hooks is the Commerce Clause.
i. The Commerce Clause over Intrastate Activity
Found in Article 1, section 8 of the Constitution, the Commerce Clause gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”65U.S. Const. art. I, § 8. Its plain meaning seems narrow: Congress can regulate interstate commerce, commercial trade with foreign nations, Indians, and amongst the states. But the US Supreme Court has never interpreted it so narrowly. The Court has recognized three categories of activities that fall within the commerce power: (1) “Congress may regulate the use of the channels of interstate commerce;”66Lopez, 514 U.S. at 558 (citations omitted). (2) “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce;”67Id. (citations omitted). and (3) Congress may regulate “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”68Id. at 558–59 (citations omitted).
The third category of the commerce power, commonly referred to as the substantial effects test, cannot be found in the text of the Commerce Clause. In United States v. Darby,69312 U.S. 100 (1941). the Supreme Court explained that this power to regulate intrastate activity in certain instances is implied because it is necessary and proper to regulate interstate activity:
The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.70Id. at 118 (citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)).
Thus, if congressional regulation of intrastate activity that substantially affects interstate commerce aims to achieve the end of regulating interstate commerce, then such regulation is within the commerce power.
The substantial effects test is no stranger to criticism. Justice Clarence Thomas has referred to it as a “rootless and malleable standard” that strays from the Commerce Clause’s original understanding.71United States v. Morrison, 529 U.S. 598, 627 (2000) (Thomas, J., concurring). Despite this criticism, the Court has utilized the substantial effects test to analyze Commerce Clause cases, in some instances finding the regulation of intrastate activity constitutional, and in others drawing a line. The following cases lay out the jurisprudential landscape the Supreme Court created as it has confronted the regulation of intrastate activity over the past century.
1. Wickard v. Filburn72317 U.S. 111 (1942).
Roscoe Filburn was an Ohio farmer who grew wheat largely for his own consumption.73Id. at 114. He used it to feed livestock, to make flour, and to seed the next year’s wheat crop.74Id. Almost none of his wheat was sold on the market, and it never left the state of Ohio.75See id. at 114, 118–19, 125.
In 1941, he grew too much wheat according to the Agricultural Adjustment Act (“AAA”).76See id. at 114–15. The AAA’s goal as to wheat was to stabilize prices by controlling “the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce.”77Id. (footnote omitted). The AAA permitted Filburn “a wheat acreage allotment of 11.1 acres and a . . . yield of 20.1 bushels of wheat [per] acre.”78Wickard, 317 U.S. at 114. Instead, he sowed twenty-three acres and harvested an excess of 239 bushels of wheat, clearly violating the AAA.79Id. at 114–15. This violation subjected Filburn to a monetary penalty, which he refused to pay, and prompted him to sue to enjoin federal regulation of his wheat.80Id. at 113, 115.
The Supreme Court was presented with the question of whether the federal commerce power to regulate “interstate commerce” extends to the regulation of wheat production “not intended in any part for commerce but wholly for consumption on the farm”—an entirely intrastate activity.81Id. at 118. Filburn argued his wheat production was beyond the reach of the Commerce Clause because it was local in character and its effects on interstate commerce were indirect at best.82Id. at 119.
A unanimous Court disagreed and upheld the AAA, holding that the Commerce Clause reached the production and harvest of Filburn’s homegrown wheat because of the aggregate effect such activities may have on interstate commerce.83Id. at 114. “That [Filburn’s] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”84Wickard, 317 U.S. at 127–28 (citations omitted). In essence, although Filburn’s intrastate activity alone may have been insignificant as it affected interstate commerce, it still had a “substantial influence” on interstate commerce and implicated the federal commerce power because other wheat farmers could do the same thing.85Id. at 127–28. Thus, in the aggregate, Filburn’s intrastate activity affected interstate commerce.
The Court further reasoned that homegrown wheat affected interstate commerce in that it competed with wheat on the open market.86Id. at 128. For example, Filburn did not need to purchase wheat on the open market because he grew his own; otherwise, his need for wheat would “be reflected by purchases in the open market.”87Id.
After Wickard, the federal commerce power’s reach seemingly extended to any activity involving a product that could conceivably enter the open market, regardless if it ever did so. The commerce power appeared to have little to no limit.88See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 648 (2012) (Scalia, J., dissenting) (noting that Wickard “always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence”). Congress subsequently tried to push the boundaries of the Commerce Clause further by enacting legislation that regulated activities with even more of an indirect effect on interstate commerce. The Supreme Court addressed these controversial federal regulations in United States v. Lopez89514 U.S. 549 (1995). and United States v. Morrison.90529 U.S. 598 (2000).
2. United States v. Lopez
Breaking from the expansive commerce power trend, the Lopez Court placed an outer limit on the federal commerce power: noneconomic intrastate activity.91This limit will later be clarified in United States v. Morrison. See infra notes 135–46 and accompanying text. In Lopez, a twelfth-grade high student was arrested after school authorities discovered he brought a gun to school.92Lopez, 514 U.S. at 551. The state initially charged the student with possession of a firearm on school premises, but this charge was dropped after the federal government charged him with a violation of the Gun-Free School Zones Act of 1990.93Pub. L. No. 101-647, 104 Stat. 4844 (codified as amended at 18 U.S.C. §§ 921,922, 924); Lopez, 514 U.S. at 551. The Act criminalized the knowing possession of a firearm in a school zone.9418 U.S.C. § 922(q)(1)(A) (Supp. V 1993).
The federal grand jury indicted the student, and he moved to dismiss the indictment “on the ground that § 922(q) ‘[was] unconstitutional as it [was] beyond the power of Congress to legislate control over our public schools.’”95Lopez, 514 U.S. at 551. The district court denied his motion and the student was convicted after a bench trial.96Id. at 551–52. He appealed to the circuit court of appeals, which reversed his conviction.97Id. at 552. The Supreme Court granted certiorari to determine whether the federal commerce power extended to the possession of guns in school zones.98See id.
The Court held that it did not.99See id. The opinion recognized cases like Wickard “ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause.”100Id. at 556. From these cases emerged the Court’s articulation of the third category of permissible federal interstate commerce regulation: “those activities that substantially affect interstate commerce.”101Lopez, 514 U.S. at 559 (citation omitted). “But even these modern-era precedents which have expanded congressional power under the Commerce Clause,” explained the Court, “confirm that this power is subject to outer limits.”102Id. at 556–57. With this in mind, the Court turned to consider whether the Gun-Free School Zone Act’s federal criminalization of gun possession in a school zone exceeds the authority of Congress under the Commerce Clause. First, the Court noted that by the Act’s own terms, the statute “ha[d] nothing to do with ‘commerce.’”103Id. at 561. It also “contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.”104Id.
The Court next disassembled the government’s contention that the Act was constitutional because possession of a firearm in a school zone substantially affects interstate commerce.105Id. at 563–64. The government took a few too many leaps of logic to get from possession to interstate commerce. First, the government asserted that possession of firearms in school zones may lead to violent crime, and this violent crime would affect the national economy because (1) the high cost of violent crime is spread throughout the national population via insurance, and (2) people are less willing to travel to areas with violent crime as they are perceived to be unsafe.106Id. Second, the government asserted that the possession of firearms in school zones “poses a substantial threat to the educational process by threatening the learning environment.”107Lopez, 514 U.S. at 564. This is so because “[a] handicapped educational process” will lead to “a less productive citizenry,” which will lead to “an adverse effect on the Nation’s economic well-being” and thus interstate commerce.108Id. For all these reasons, the government insisted firearms in school zones substantially affect interstate commerce.109Id.
The Court disagreed, recognizing that the federal government would hold nearly unlimited regulatory authority if it accepted the government’s reasoning.110Id. For example, “under its ‘costs of crime’ reasoning, . . . Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.”111Id. “Similarly, under the Government’s ‘national productivity’ reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens,” including family law.112Id. The Court found it “difficult to perceive any limitation on federal power” under the government’s reasoning, and importantly, any activity that a state could regulate but Congress could not.113Lopez, 514 U.S. at 564. In rejecting this reasoning, the Court declined to “pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”114Id. at 567–68. As a result, the Court held that possession of a firearm in a school zone was not an economic activity that substantially affected interstate commerce, and Congress thus lacked authority under the Commerce Clause to enact the Gun-Free School Zones Act.115See id.
Justice Anthony Kennedy, joined by Justice Sandra Day O’Connor, wrote separately to emphasize the importance of preventing the federal government from encroaching on areas of traditional state concern, “areas having nothing to do with the regulation of commercial activities.”116Id. at 577, 580 (Kennedy, J., concurring). Federalism allows citizens to assign political responsibility, and if the federal government were to take over noncommercial areas of regulation reserved for the states, then “the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.”117Id. at 577.
Although he concurred in the holding, Justice Clarence Thomas wrote separately to explain how the substantial effects test is a “blank check” for federal power.118Id. at 602 (Thomas, J., concurring). The Commerce Clause allows Congress to regulate “Commerce . . . among the several States.”119Lopez, 514 U.S. at 584 (citation omitted). Instead of sticking to the constitutional text, the Court has added the substantial effects test, which, “if taken to its logical extreme, would give Congress a ‘police power’ over all aspects of American life.”120Id. In Justice Thomas’s view, this approach to the Commerce Clause strays from the original and narrow meaning of “commerce” at ratification and converts much of the Constitution to surplusage, as most of its topics substantially affect interstate commerce.121Id. at 589.
3. United States v. Morrison
The Court frustrated another congressional attempt to expand the Commerce Clause’s reach in United States v. Morrison. A Virginia Tech female student alleged she was assaulted and raped by two male students.122United States v. Morrison, 529 U.S. 598, 602 (2000). The attack led the female student to become severely depressed and to eventually withdraw from the university.123Id. at 602–03. She sued the two male students and Virginia Tech in federal district court, alleging a violation of section 13981 of the Violence Against Women Act (“VAWA”).124Violence Against Women Act of 1994, Pub. L. No.103-322, 108 Stat. 1902 (codified at 42 U.S.C. § 13981); Morrison, 529 U.S. at 604. This section of the VAWA gave victims of gender-motivated violence the right to sue in federal court.125See 42 U.S.C. § 13981(b), (e)(3)–(4); Morrison, 529 U.S. at 604. The male students moved to dismiss the complaint on the ground that the VAWA’s civil remedy was unconstitutional.126Morrison, 529 U.S. at 604. The district court granted the motion, dismissing the complaint because the Commerce Clause did not grant Congress authority to enact section 13981.127Id. On appeal, the en banc Court of Appeals for the Fourth Circuit affirmed the district court’s conclusion that section 13981 was an unconstitutional exercise of congressional authority.128Id. at 604–05.
The Supreme Court granted certiorari to determine the constitutionality of the federal civil remedy section of the VAWA.129Id. at 605. Within VAWA, Congress explicitly identified the sources of authority it relied on to create the civil remedy, one of which was the Commerce Clause.130Id. at 607. The petitioners argued the activity section 13981 regulated—gender-motivated violence—fell in the third category of activity Congress may regulate with the commerce power because it substantially affects interstate commerce.131Id. at 609.
The Court rejected this assertion and addressed it head-on. Although under recent Commerce Clause jurisprudence, “Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted,” even under this “modern, expansive interpretation[,] Congress’ regulatory authority is not without effective bounds.”132Morrison, 529 U.S. at 608.
First, the Court found Congress lacked authority to regulate gender-motivated violence because it was a noneconomic activity.133See id. at 610, 613. Congress only has the power to regulate economic activity that substantially affects interstate commerce, unless regulation of a noneconomic activity is “an essential part of a larger regulation of economic activity.”134See id. at 610–11 (citations omitted). Central to the Court’s decision in Lopez was the “noneconomic, criminal nature of the conduct at issue.”135Id. at 610. And in other cases where the Court “sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.”136Id. at 611. The Court declined to make an exception to this rule with the VAWA, declaring that “[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”137Id. at 613.
Second, Congress lacked authority to regulate gender-motivated violence under the VAWA because section 13981 did not contain an express jurisdictional element.138Morrison, 529 U.S. at 613. In Lopez, the relevant statute lacked an express jurisdictional element that “may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce.”139Id. at 611–12. The same was true of section 13981.140Id. at 613. But even if it did, “such a jurisdictional element” would have only “lend[ed] support to the argument that [section] 13981 is sufficiently tied to interstate commerce.”141Id.
Finally, the Court rejected the VAWA’s congressional findings that gender-motivated violence substantially affects interstate commerce.142Id. at 614. The findings were strikingly similar to the “costs of crime” and “national productivity” arguments made in Lopez:
Congress found that gender-motivated violence affects interstate commerce “by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.”143Id. at 615 (citations omitted).
The Court explained that if such attenuated effects on interstate commerce fell within the commerce power, then “Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority.”144Morrison, 529 U.S. at 615. But the Constitution requires such a distinction, so the Court ultimately “reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.”145Id. at 617. The Court accordingly found that Congress lacked authority under its commerce power to enact section 13981.146Id. at 619.
While Wickard seemed to signal that the Court was moving toward an interpretation of the Commerce Clause that obliterated the distinction between national and local authority, Lopez and Morrison tapered these concerns by striking down overreaching federal statutes and setting limits on the commerce power.147See id. at 610–11, 613 (holding that Congress could not regulate gender-motivated violence because it was not an economic activity); United States v. Lopez, 514 U.S. 549, 567 (1995) (holding that possession of a firearm in a school zone “[was] in no sense an economic activity that might . . . substantially affect any sort of interstate commerce”). The Court reversed course, however, when it decided the marijuana version of Wickard: Gonzales v. Raich.148545 U.S. 1 (2005).
4. Gonzales v. Raich
Congress enacted the Controlled Substances Act (“CSA”) “to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.”149Id. at 12; see Controlled Substances Act, Pub. L. No. 91-513, 84 Stat. 1242 (1970). This national regulatory scheme outlaws the manufacture, distribution, or possession of CDS, except as otherwise authorized.15021 U.S.C. §§ 841(a)(1), 844(a); Raich, 545 U.S. at 13. Marijuana is a CDS under the Act.15121 U.S.C. § 812(c). Despite marijuana’s illegality at the federal level, California authorizes medical marijuana use.152Cal. Health & Safety Code § 11362.5 (West 2021); Raich, 545 U.S. at 5. In Raich, both respondents were California residents who used medical marijuana pursuant to California law.153Raich, 545 U.S. at 6–7. Diane Monson cultivated her own marijuana at her home, while Angel Raich received free marijuana from two caregivers who cultivated it themselves.154Id. at 7. State and federal officials conducted an investigation of Monson’s marijuana use at her home.155Id. Although the state officials determined Monson’s marijuana use was lawful under California law, the federal officials “seized and destroyed all six of her cannabis plants.”156Id.
Monson and Raich sued the US Attorney General and the head of the Drug Enforcement Agency “seeking injunctive and declaratory relief prohibiting the enforcement of the federal [CSA] to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use.”157Id. (citation omitted). One of their bases for relief was that enforcement of the CSA against them violated the Commerce Clause.158Id. at 8. The district court denied their request for an injunction, but the court of appeals reversed.159Raich, 545 U.S. at 8. The Supreme Court granted certiorari to decide “whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally.”160Id. at 9. The Court affirmatively answered this question, explaining similarities and differences between this case and Wickard, Lopez, and Morrison along the way.
Initially, the Court noted the importance of the understanding that the respondents were not challenging the constitutionality of the entire CSA, as they conceded passing the CSA was within Congress’s authority.161Id. at 15. Instead, the respondents “argue[d] that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceed[ed] Congress’ authority under the Commerce Clause.”162Id. The Court rejected this argument because, as Wickard demonstrates, Congress had a firmly established power to regulate noncommercial intrastate activities that are part of a class of activities that substantially affect interstate commerce.163Id. at 19–20. Said differently, Congress can regulate purely local activities “if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”164Id. at 18.
Not only did the rule announced in Wickard ring true for the Court in Raich, but the factual similarities between Wickard and Raich also lent support for the Court’s identical holdings in both cases. Both the farmer in Wickard and the marijuana users in Raich cultivated a fungible product for home consumption that never entered the market.165Raich, 545 U.S. at 18. In both cases, there was an established interstate market for the relevant product—wheat in Wickard, marijuana in Raich.166Id. at 19–20. The federal regulatory scheme in each case—the AAA in Wickard and the CSA in Raich—was also designed to control the relevant product’s supply and demand.167Id. at 17, 19–20. These similarities led the Raich Court to conclude that the CSA’s “diversion of homegrown marijuana” “[was] squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”168Id. at 19. With this holding, the Court finetuned the substantial effects category of commerce power by explicitly stating what was implicit in prior holdings: the commerce power includes regulation of intrastate activity if that regulation is necessary and proper to regulate commerce pursuant to the Commerce Clause.169Id. at 22.
The Court concluded by explaining why respondents’ reliance on Lopez and Morrison “overlook[ed] the larger context of modern-era Commerce Clause jurisprudence preserved by those cases.”170Id. at 23. It distinguished the statute at issue in Lopez—“a brief, single-subject statute” with no ties to interstate commerce or economic activity171Raich, 545 U.S. at 23; see also Gun-Free School Zones Act of 1990, Pub. L. No. 101-647, 104 Stat. 4844 (1990).—from the one at issue in Raich—a statute part of “a comprehensive framework for regulating [CDS]” on a national scale.172Raich, 545 U.S. at 24; see also Controlled Substances Act, Pub. L. No. 91-513, 84 Stat. 1242 (1970). The Court explained that marijuana’s classification as a Schedule I drug in the CSA, “unlike the discrete prohibition established by the Gun-Free School Zones Act of 1990, was merely one of many ‘essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.’”173Raich, 545 U.S at 24–25 (quoting United States v. Lopez, 514 U.S. 549, 561 (1995)).
Additionally, the Court distinguished the activities of possessing a gun in a school zone in Lopez and violence against women in Morrison as noneconomic and noncommercial.174Id. at 25. The same could not be said for the activity that the CSA regulates—producing, distributing, and consuming CDS—since there was an established interstate market for CDS.175Id. at 25–26. The CSA therefore “directly regulates economic, commercial activity,”176Id. at 26. and thus the distinguishable holdings in Lopez and Morrison “cast no doubt on its constitutionality.”177Id.
b. Questionable Constitutionality
Wickard and Raich demonstrate how the substantial effects test has all but swallowed the Commerce Clause’s plain meaning. Almost everything in society has some effect on interstate commerce, and whether that effect is “substantial” is a matter of framing. And when Congress frames an intrastate activity as having a substantial effect on interstate commerce, this conclusion is only subject to rational basis scrutiny178Id. at 22.—a virtually automatic win for the government.179See, e.g., Jeffrey D. Jackson, Putting Rationality Back Into the Rational Basis Test: Saving Substantive Due Process and Redeeming the Promise of the Ninth Amendment, 45 U. Rich. L. Rev. 491, 493 (2011) (“The rational basis test as it currently stands is too weak. By allowing any plausible reason for the legislation to suffice, whether or not it was a true reason for the legislation, and by asking only whether lawmakers could have thought that it was reasonably related to the subject it purported to advance, the Court has essentially made the rational basis test the equivalent to no test at all.”). For example, although there is a national market for products like wheat, the effect on interstate commerce of Filburn’s consumption of a few bushels of homegrown wheat in Wickard was trivial at best. Maybe he would have purchased wheat from the national market if he had not grown his own, but even if he did, this act would have had an inconsequential impact on the national price of wheat. The Court found that Filburn’s consumption nevertheless had a “substantial effect” on interstate commerce because it analyzed his actions in the aggregate and reasoned that “Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the [national] scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.”180Wickard v. Filburn, 317 U.S. 111, 128–29 (1942). Framed this way, the national price of wheat may be substantially affected if every farmer grew a few bushels of wheat for home consumption and did not go to the national market to meet this need. But in Wickard, there was no evidence that other farmers consumed homegrown wheat. The Court simply hypothesized that Congress “may properly have considered” that if lots of farmers did what Filburn did, then interstate commerce would be substantially affected, so Congress could regulate Filburn’s purely intrastate activity. This means that if there is a national market for an item, then Congress has free rein to regulate it as long as there is a “rational basis” for concluding that intrastate activities related to that item, taken in the aggregate, substantially affect interstate commerce—regardless if the item ever enters a channel or instrumentality of interstate commerce, or ever crosses a state line, or if other items are also avoiding the national market.181See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536–37 (2012) (opinion of Roberts, C.J.); id. at 602 (Ginsburg, J., concurring in part, concurring in the judgment, and dissenting in part). Once a national market exists, that item falls within the commerce power. Period.
Another example demonstrating the over breadth of the commerce power is recent federal legislation on animal cruelty. In 2019, the Preventing Animal Cruelty & Torture Act (“PACT”) went into effect making certain acts of animal cruelty unlawful and punishable by fines and up to seven years in prison.182Pub. L. No. 116-72, 133 Stat. 1151 (2019) (codified as amended at 18 U.S.C. § 48). But there is clearly no enumerated power in the Constitution for Congress to regulate or punish animal cruelty, nor is such regulation or punishment necessary and proper to execute another enumerated power. Congress thus resorted to the interstate commerce jurisdictional hook to legislate in an area it otherwise could not.183See, e.g., Jacob Sullum, Congress Tortures the Constitution to Obtain Permission for a Federal Animal Cruelty Law, reason (Oct. 24, 2019, 1:35 PM), https://perma.cc/W7V5-N2UF. PACT outlaws “animal crushing in or affecting interstate or foreign commerce.”18418 U.S.C. § 48(a)(1). Animal welfare is traditionally an area left to each state, not the federal government. Federal animal welfare laws demonstrate what Justices Kennedy, O’Connor, and Thomas cautioned against—how the expanded commerce power has improperly morphed into a federal police power, acting as a tool for the federal government to encroach on state power and erode federalism.185See United States v. Lopez, 514 U.S. 549, 568, 581 (1995) (Kennedy, J., concurring); id. at 584–85, 602 (Thomas, J., concurring).
Although its validity is questionable, the substantial effects test has been around for decades and reliance interests abound.186See, e.g., Colin V. Ram, Regulating Intrastate Crime: How the Federal Kidnapping Act Blurs the Distinction Between What Is Truly National and What Is Truly Local, 65 Wash. & Lee L. Rev. 767, 781, 785–86 (2008) (discussing the development of federal kidnapping statutes that use interstate commerce to assert jurisdiction); Andrew Weis, Commerce Clause in the Cross-Hairs: The Use of Lopez-Based Motions to Challenge the Constitutionality of Federal Criminal Statutes, 48 Stan. L. Rev. 1431, 1436–38 (1996) (discussing the federal government’s expansion of the Commerce Clause to assert criminal jurisdiction). Reliance interests usually weigh heavily on the Supreme Court when presented with the opportunity to overturn precedent.187See, e.g., Lopez, 514 U.S. at 601 n.8 (Thomas, J., concurring) (“Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.”); Wickard v. Filburn, 317 U.S. 111, 128 (1942) (“It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices.”). The Supreme Court is therefore unlikely to eliminate the substantial effects test instantaneously, let alone any time soon. If it is not eliminated, it should at least be applied more conservatively. Although the Court’s adoption of the substantial effects test has led to a virtually unlimited commerce power, Lopez and Morrison show that there is some limit. That limit should include not only noneconomic and noncommercial activity in the aggregate, but also a requirement that activity regulated with the interstate commerce jurisdictional hook have an actual substantial effect on interstate commerce, not just a hypothetical effect.
The substantial effects test does not come from the constitutional text, but instead is a creation of the Supreme Court that uses the Necessary and Proper Clause to swallow the limited nature of the Commerce Clause understood at the framing.188See Lopez, 514 U.S. at 584–85 (Thomas, J., concurring). Its validity is at least questionable, maybe even unconstitutional.189See id. And in some instances, this Court-approved expansion of the commerce power is the sole basis for the government’s satisfaction of an element of the crime charged when it includes the interstate commerce jurisdictional hook.190Following the Supreme Court’s decision in Lopez, in September 1996, Congress amended the Gun-Free Schools Act of 1990 by passing the Omnibus Consolidated Appropriations Act of 1997. Pub. L. No. 104-208, § 657, 110 Stat. 3009, 3009-369–71; see 18 U.S.C. § 922(q). But the amendment has had “little or no effect” on prosecuting cases. Seth J. Safra, The Amended Gun-Free Schools Act: Doubt as to its Constitutionality Remains, 50 Duke L.J. 637, 638–39 & n.9 (2000). As a result, when this jurisdictional hook is an element of a crime to which a criminal defendant wishes to plead guilty, the nature of change-of-plea hearings warrants vigorous protection of constitutional rights. Change-of-plea hearings are mechanical and impersonal. The district judge asks the criminal defendant a laundry list of “yes or no” questions about his competency, understanding of the sentencing guidelines, and understanding of the rights he will give up by entering a guilty plea. If there is a plea agreement, the judge explains that the district court is not bound to follow anything within the plea agreement and the criminal defendant’s limited ability to appeal. Needless to say, these hearings are jam-packed with information that is complicated even to a legally trained mind. Moreover, when everyone around is asking confusing questions and using unfamiliar terms, this creates an environment in which a vulnerable criminal defendant may be taken advantage of, even agreeing with the government that it could prove that a firearm traveled in interstate commerce without knowing if the government could do so or what interstate commerce means. In such an environment, criminal defendants should have more rigorous constitutional protections.
Many criminal defendants may not know whether the firearm or ammunition they are charged with possessing ever crossed state lines, so questioning them about the interstate commerce element may not provide a sufficient factual basis to satisfy Rule 11(b)(3)—it often provides no basis and thus violates the criminal defendant’s due process rights.191Cf. McCarthy v. United States, 394 U.S. 459, 464–67 (1969) (explaining that the lower court did not comply with Rule 11 because the defendant’s guilty plea was not truly voluntary). Paired with the real possibility that the jurisdictional hook can be satisfied only if the firearm or ammunition substantially affects interstate commerce if the relevant firearm or ammunition is American-manufactured, homemade, reloaded, or 3D-printed, this questioning that evokes no meaningful factual basis is even more problematic. An affirmative response from a defendant does not provide the district court with any factual basis that the firearm or ammunition was shipped or transported in interstate commerce, let alone whether the firearm or ammunition substantially affected interstate commerce.
Even if the substantial effects test is constitutional, the factual basis inquiry solely questioning the criminal defendant probably still is not. Unless he himself knows the firearm or ammunition he is charged with possessing crossed state lines, such a questioning likely violates the criminal defendant’s due process rights.
B. Not a Foregone Conclusion: Drug Type
Drug crimes were the second most common federal offense charged in 2019, constituting 26.6% of all federal cases.192Schmitt & Russell, supra note 2, at 4. The CSA makes it unlawful for “any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”19321 U.S.C. § 841(a). Controlled substances include drugs like heroin, cocaine, phencyclidine, marihuana, methamphetamine, and lysergic acid diethylamide.194Id. § 812(c). None of these drugs are discernable to the naked eye. For example, methamphetamine (“meth”)—the most prevalent federal drug type in cases representing 42.2% of all federal drug cases195Schmitt & Russell, supra note 2, at 14.—commonly comes in the form of a white powder. So do heroin, cocaine, and PCP. But to the naked eye, white powder could be flour or powdered sugar, or yes, even meth, heroin, cocaine, or PCP. Some CDS can come in liquid or pill form, like meth, LSD, and PCP. There are many liquids and pills that could double as these drugs like sweet tea doubling as liquid meth. Marijuana also has a lookalike: hemp, not a CDS.
Despite the existence of CDS lookalikes, a criminal defendant may have knowledge of the drug type he is charged with manufacturing, distributing, dispensing, or possessing. Before authorities find him with the CDS, a criminal defendant may have smelled the drug, or even taken it. His past experience with the drug may give him knowledge about its characteristics and its effects on his body. In such a case, the criminal defendant has personal knowledge that the CDS he is charged with illegally possessing is actually the CDS he is charged with illegally possessing.
But what if the criminal defendant never got around to using the CDS? This is probably a common occurrence, as arrests often happen shortly after undercover drug busts, after the police observe what they suspect is a drug deal, or after a search of a vehicle transporting drugs.196See United States v. Maldonado, 23 F.3d 4, 8 (1st Cir. 1994) (“That the police are present and ready to frustrate distribution does not make possession of drugs any less a crime, and a minute of possession is as much an offense as a year of possession.”). But see Smith v. United States, 966 A.2d 367, 391 (D.C. 2009) (“To obtain a conviction for attempted possession, the government must prove that the defendant intended to possess an unlawful substance, but it need not prove (as it must in order to obtain a conviction for possession) that the substance involved was actually unlawful.”). In these instances, the criminal defendant probably thought he possessed a CDS but with no way of knowing for sure because he never used it. It may have been a phony drug deal, where the dealer sold him “meth,” but it was actually powdered sugar. Crucially, the criminal defendant did not violate federal law by possessing a CDS if the substance is not one.197See Elisha Fieldstadt, An Innocent Man Pleaded Guilty to a Drug Charge to Get out of Jail. It’s More Common than You Think, NBC News (Oct. 16, 2019, 4:05 PM), https://perma.cc/E6WT-LHRJ. Relying on the criminal defendant’s testimony does not ensure he is not pleading guilty to a crime he does not know he did not commit. Without this knowledge, the criminal defendant cannot provide the requisite factual basis for an element of the crime charged: possession of a particular drug.
C. Not a Foregone Conclusion: Amount of Drug
The criminal defendant is even more unlikely to have personal knowledge of the amount of the CDS he is charged with possessing. This is critical to punishment, as punishment under the CSA is directly tied to the amount of CDS. For example, a criminal defendant charged with manufacturing, distributing, dispensing, or possessing “1 kilogram or more of a mixture or substance containing a detectable amount of heroin,” “100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP),” or “10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD),” “shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life.”19821 U.S.C. § 841(b). But if the amount of CDS is less, the punishment is likely less. A criminal defendant who violates 21 U.S.C. § 841(a) with “100 grams or more of a mixture or substance containing a detectable amount of heroin,” “10 grams or more of phencyclidine (PCP) or 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP),” or “1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD)” “shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life.”199Id. That is a mandatory minimum difference of five years, and a mandatory maximum difference between life in prison and only forty years.
The amount of CDS matters immensely, and a factual basis inquiry relying on the criminal defendant’s personal knowledge will almost certainly not suffice.200Id. § 841 (laying out the statutory scheme for sentencing that turns on the amount of the substance possessed). The criminal defendant does not know whether the PCP he possessed was ten or eleven grams. But the answer to this question alters the mandatory minimum sentence by five years. The only way to provide evidence of the amount or chemical makeup of the CDS in the factual basis inquiry is to test the substance in a drug laboratory before the change-of-plea hearing and to provide the district court with a report on the amount of the substance. Relying on the criminal defendant’s testimony for either of these elements of the crime charged improperly and unconstitutionally treats them as foregone conclusions.
D. But They Did It
As demonstrated above, the interstate commerce element of federal crimes, as well as the type and weight of CDS, are not foregone conclusions. The fact remains that the felon possessed a firearm or some drug, or at least thought he did. Why does it matter that the firearm crossed a state border, or that the meth was a certain weight? It matters because of federalism and due process.
Underlying the interstate commerce issue is an important principal upon which the United States was built: federalism. The federal government is one of limited, enumerated powers, while the state governments enjoy the remaining powers.201U.S. Const. amend. X; Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 533 (2012) (opinion of Roberts, C.J.) (“In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.”). In several federal crimes, the only reason the federal crime is a crime is because it includes the interstate commerce element.202See, e.g., Preventing Animal Cruelty & Torture Act, Pub. L. No. 116-72, 133 Stat. 1151 (2019) (codified as amended at 18 U.S.C. § 48). Congress enacted this statute by establishing jurisdiction through interstate commerce only; there is no enumerated power over animal welfare in the Constitution. Without it, the federal government has no jurisdiction or power to legislate those crimes.203See Nat’l Fed’n of Indep. Bus., 567 U.S. at 535 (opinion of Roberts, C.J.) (“If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted . . .”). Rather, such legislation would be left to the states.204See U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).. Congress has used the interstate commerce jurisdictional hook as a workaround to encroach on states’ power and legislate where it has no business legislating. As questionable as it is, this workaround thus makes it all the more important to require the federal government to present evidence of the interstate commerce jurisdictional hook when it charges a criminal defendant with one of these overreaching crimes, especially in change-of-plea hearings.
Underlying both the interstate commerce issue and the drug type and amount is also the principal of due process and notice. It is universally accepted that it would be unfair to convict a defendant of a crime that was not a crime at the time of his conduct.205See U.S. Const. art. I, § 9, cl. 3 (“No . . . ex post facto Law shall be passed.”); Note, Ex Post Facto Laws, 13 Harv. L. Rev. 217, 217 (1899). It is not a federal crime to be a felon and possess a firearm that has not been in or affected interstate commerce.20618 U.S.C. § 922(g) (“It shall be unlawful for [a convicted felon to]. . .possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”). It is likewise not a federal crime to possess powdered sugar. Thinking you committed a crime is not the same as committing it. This may seem like a technicality, but it is fundamental in our criminal justice system that a criminal defendant should be convicted of a crime only if every element of the crime is satisfied and it was a crime at the time of his actions.207See Jackson v. Virginia, 443 U.S. 307, 314 (1979) (“[A] conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm.”). If these conditions are not met, no conviction should lie, even if the criminal defendant thinks he committed the crime. This again makes the factual basis inquiry important to ensure that a criminal defendant whose conduct only satisfies all but one element of a crime—which is no crime at all—is not still convicted of a federal crime.
E. But Aren’t Stipulations Evidence?
Stipulations are routine practice at trial. They are “voluntary agreement[s] between opposing parties concerning some relevant point [, especially] an agreement relating to a proceeding, made by attorneys representing adverse parties to the proceeding.”208Stipulation, Black’s Law Dictionary (11th ed. 2019). Akin to a contract between parties that an issue is not in dispute, a stipulation’s
purpose and effect . . . is to conserve judicial resources, save money and time for all parties involved, and save public money. Entering into stipulations allows parties to focus only on disputed issues by allowing them to stipulate to those easily proven and agreed facts that are relevant and necessary to the outcome of the case but would otherwise need to be proved.209Linsey K. Hogg, How to Instruct the Jury on Stipulations of Fact in Federal Criminal Cases, 106 Ky. L.J. 511, 515 (2018) (footnote omitted).
Parties can stipulate to facts, like that Company A is a citizen of Delaware, or that it was raining on the day of the accident.210See, e.g., United States v. Lambert, 604 F.2d 594, 595 (8th Cir. 1979) (per curiam) (describing the parties agreeing to a stipulation that “checks [were] made out to Dakota Trading Post; . . . and they were in fact cashed for cash”). They can also stipulate to evidentiary issues, like the admissibility or authenticity of evidence.211See, e.g., United States v. Banks, 624 F.3d 261, 264 (5th Cir. 2010) (per curiam) (“Evidentiary stipulations are binding on the parties . . . [and] may provide sufficient evidence of the elements of a charged offense.” (citations omitted)). In criminal cases, the government and the criminal defendant can likewise stipulate to facts constituting elements of the crime charged.212See, e.g., id. (describing that the criminal defendant “agreed with the government that [the stipulated facts] ‘constitute sufficient evidence for the [c]ourt to find him guilty as charged . . . beyond a reasonable doubt’”).
Stipulations are filed with the district court and then read to the jury at the close of evidence or included in jury instructions. Once the parties stipulate to a fact or element, no evidence is necessary; the legal effect of a stipulation is the jury must accept it as true.213See Hogg, supra note 209, at 513 (“Federal judges must determine whether the binding nature of the stipulation of fact extends to the jury such that it necessitates a mandatory or permissive jury instruction.”). There is no factual basis inquiry or other follow-up by the judge to ensure the criminal defendant is not unknowingly or improperly alleviating the government of its burden of proof. At first glance, this procedure is difficult to reconcile with Federal Rule of Criminal Procedure 11. If a guilty plea is just a series of stipulations to all the facts that make up the elements of the crime charged, and there is no rule that requires evidentiary support to support stipulations, then why does the district court have to engage in a factual basis inquiry to accept a guilty plea? Why isn’t a stipulation within the factual basis inquiry considered evidence?
Stipulations are not evidence. In the criminal context, they are agreements to alleviate the government of its burden of proof at trial.214See United States v. Morales, 684 F.3d 749, 755 (8th Cir. 2012) (“Normally a party is bound by his stipulations as a stipulation . . . is akin to a contract.” (quoting Rathborne Land Co. v. Ascent Energy, Inc., 610 F.3d 249, 262 (5th Cir. 2010))). Guilty pleas are effectively a series of stipulated facts that satisfy the elements of the crime charged. But unlike stipulations, guilty pleas have the added layer of the criminal defendant admitting guilt of the full crime charged without a scintilla of evidence presented to the trier of fact. They also generally occur at change-of-plea hearings, where the criminal defendant gives up multiple constitutional protections and effectively alleviates the government of its burden to prove he committed the crime charged beyond a reasonable doubt.215See Timothy Lynch, An Eerie Efficiency, 2002 Cato Sup. Ct. Rev. 171, 172–75 (discussing how plea bargains can be conditioned on the defendant waiving certain constitutional due process rights, even down to waiving the right to receive exculpatory materials that could inform a defendant of the true strength of the government’s case against him (i.e., Brady waiver)). Compare this to the context in which stipulations generally occur—at a trial where the criminal defendant has the benefit of multiple constitutional protections and necessarily contests that the government can prove his guilt beyond a reasonable doubt—and the added protections imposed for guilty pleas by Rule 11 make sense.
Where the criminal defendant wishes to enter a guilty plea, stipulations thus will not cut it. Stipulations—which amount to no evidence—make no sense in the context of the factual basis inquiry—which requires some evidence. To hold otherwise would gut Rule 11’s purpose.216See supra notes 6–7 and accompanying text.
F. But Isn’t Negative Evidence Still Evidence?
Negative evidence is technically evidence. This type of evidence suggests “that an alleged fact does not exist, such as a witness’s testifying that he or she did not see an event occur.”217Evidence, Black’s Law Dictionary (11th ed. 2019). Another common example of negative evidence is a witness testifying that he did not hear a dog bark on the night of an alleged break in. It “is relevant and admissible when it tends to prove the nonexistence of a material fact.”21829 Am. Jur. 2d Evidence § 315 n.2 (2019). But the general consensus among scholars is that the probative value of negative evidence is often low.219See, e.g., R.T.K., Annotation, Distinction Between Positive and Negative Evidence, 140 A.L.R. 530 (1942); Note, Admissibility and Probative Value of Negative Evidence, 42 Harv. L. Rev. 422, 424 (1929). Indeed, “[t]he statement that the witness observed no physical manifestations of the alleged event permits of two conflicting inferences—either that the event did not occur, or that it occurred but made no impression upon his senses.”220Note, supra note 219, at 424. As a result, “negative evidence generally is admissible as evidence of the negative inference only on a showing that the witness so testifying was in a position to hear or see the relevant fact, or would have heard or seen it.”2211 Barbara E. Bergman, Nancy Hollander & Theresa M. Duncan, Wharton’s Criminal Evidence § 4:6 (15th ed. 2020). So, negative evidence that a witness did not hear a dog bark is only relevant and admissible if the witness was in a position to hear a dog bark, if he would in fact hear a dog bark if it did so, and if a dog would bark if there was an intruder, as this testimony would then tend to prove the nonexistence of a break in.222See, e.g., Spence v. Buck, No. 13-CV-157, 2014 WL 5782224, at *7 (N.D. Ind. Nov. 6, 2014).
Negative evidence alone should be insufficient to support part of the factual basis inquiry. In a felon-in-possession factual basis inquiry, for example, a defendant’s negative answer to the prosecutor’s bare question of whether he has any reason to dispute that the firearm ever crossed a state line proves nothing. It may provide evidence of the interstate commerce element if there was also evidence that the criminal defendant himself transported the firearm across state lines, or had it shipped across state lines, or knew his friend used it in another state at some point. But this bare question eliciting negative evidence gives the district court no information about whether the criminal defendant has ever been in a position to observe the firearm crossing state lines, so its relevance is unknown.
Technically, negative evidence is evidence. But it is another species of evidence that is only relevant based on context, and even when it is, its probative value is lessened by the multiple inferences that can be drawn from it. It is weak. If it is to be used at all in the Rule 11 context, then there should be accompanying evidence of its relevance in the very least. The Rule 11 bar is low, but to allow negative evidence alone without additional evidence bolstering its probative value to satisfy it contravenes Rule 11’s purpose to ensure the criminal defendant does not plead guilty to a crime he does not know he did not commit.223See supra note 7 and accompanying text.
III. The Solution: Meaningfully Engaging in the Factual Basis Inquiry
This Article does not call for changing Rule 11 or adding another rule of criminal procedure to protect the criminal defendant who enters a guilty plea. When meaningfully followed, Rule 11(b)(3) already does that. This Article instead suggests the Constitution requires judges to apply Rule 11(b)(3) more stringently by insisting that the government present evidence as to each element of the crime charged at the change-of-plea hearing. If not, the judge should reject the plea.224Fed. R. Crim. P. 11 advisory committee’s note to 1966 amendment (“The normal consequence of a determination that there is not a factual basis for the plea would be for the court to set aside the plea and enter a plea of not guilty.”). This may sound harsh, but the burden it places on the government is minimal, and the benefit it provides to the criminal justice system is magnificent.
A. Minimal Burden on the Government
Rule 11(b)(3) and the Constitution not only require a stricter factual basis inquiry, but applying such a standard places only a minimal burden on the government, especially considering the alternative. If a case goes to trial, the government must prove that the interstate commerce element or type and amount of drug is established in evidence beyond a reasonable doubt, a much higher burden than that imposed by the factual basis inquiry.
The burden placed on the government to provide a factual basis for the interstate commerce element of a section 922(g)(1) crime is minimal—it can put a Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) agent on the stand to explain where the firearm or ammunition was manufactured, or proffer the ATF report that explains the same.225See United States v. Ortiz, 927 F.3d 868, 871 (5th Cir. 2019) (describing the stipulated fact that an ATF Special Agent determined the firearm was manufactured outside of Texas, and “[b]ecause the firearm was manufactured outside the state of Texas, the firearm traveled in interstate commerce”). If the relevant firearm or ammunition was manufactured in the same state in which the felon possessed it, an ATF agent or ATF report can explain where the component parts were manufactured, or the government can ask the criminal defendant if he ever took the firearm or ammunition across state lines. And if the firearm or ammunition is homemade, then the government can ask the criminal defendant how he made it and if he used any premade parts, and then the government can research where those premade parts were manufactured.
If this evidence reveals that the firearm, ammunition, or component parts of either226Some courts find that the interstate travel of component parts is sufficient to satisfy the interstate commerce element. Compare United States v. Gresham, 118 F.3d 258, 265 (5th Cir. 1997) (“[W]e join the majority of courts in holding that component parts are ‘firearms’ for purposes of § 922(g)(1).”), with United States v. Walker, No. 04-130, 2004 WL 2186409, at *4 (D. Minn. Sept. 14, 2004) (“The Court will not, however, stretch § 922(g)’s reach to include the interstate transportation of entirely innocent components that are thereafter put to nefarious use.”), aff’d, 428 F.3d 1165 (8th Cir. 2005). crossed state lines, then the factual basis inquiry as to the interstate commerce element is easily satisfied. But it gets tougher if no state lines were ever crossed, and the district court is left with the question of whether the firearm or ammunition “affected” interstate commerce. The district court may determine that because a national market exists for firearms and ammunition, these products substantially affect interstate commerce categorically. Or the district court, or an appellate court, may view the substantial effects test as an unconstitutional expansion of federal power and find the interstate commerce element of the statute unsatisfied.
The burden placed on the government to provide a factual basis for the type or amount of drug is seemingly even less demanding. It can put the person who tested the recovered substance on the stand to explain her testing methodology and findings, or it can proffer the drug laboratory report with such findings.227Some courts accept guilty pleas even where formal testing has not yet occurred. See, e.g., Fieldstadt, supra note 197 (describing a defendant who pled guilty to drug charges, after which lab testing returned negative results that showed that the substance was powdered milk). If the criminal defendant has personal knowledge of the drug type, the prosecutor can ask him about it. Far more informative than the criminal defendant’s testimony on the drug type and amount is the testimony or report of someone who tested the substance to determine its chemical makeup and weight. This is evidence, and it is not burdensome to present at a change-of-plea hearing.228Field-testing a suspected drug is already common procedure for police officers when making drug arrests on the street, despite the notorious inaccuracy of these tests’ results. Ryan Gabrielson & Topher Sanders, How a $2 Roadside Drug Test Sends Innocent People to Jail, N.Y. Times Mag. (July 7 2016), https://perma.cc/3RED-GN5U. Field tests may not be valid evidence against a defendant if the matter went to trial given that the Daubert test and Rule 702 of the Federal Rules of Evidence require scientific evidence to be sufficiently reliable. See Cassandra H. Welch, Flexible Standards, Deferential Review: Daubert’s Legacy of Confusion, 29 Harv. J.L. & Pub. Pol’y 1085, 1102–03 (2006). Some jurisdictions, like Harris County, Texas, no longer accept guilty pleas based on field tests and instead require the substance to be confirmed by the crime lab. Ryan Gabrielson, Unreliable and Unchallenged, ProPublica (Oct. 28, 2016, 11:00 AM), https://perma.cc/868W-YLEH. Each approach results in actual evidence presented to the district court to support a factual basis for the drug crime charged.
B. Magnificent Benefit to the Criminal Justice System
This minimal burden has magnificent benefits to the criminal justice system—it ensures the criminal defendant enters a guilty plea knowingly and voluntarily, and that he is not convicted of a crime that he did not commit or that the federal government has no jurisdiction to prosecute.229See Fed. R. Crim. P. 11 advisory committee’s note to 1974 amendment. Those who enter guilty pleas give up constitutional rights.230Fed. R. Crim. P. 11(b)(1)(F). Whenever these rights are given up, it is paramount that the criminal defendant understands not only the consequences of his decision, but also the crime to which he pleads guilty. The factual basis inquiry facilitates this when meaningfully performed.
Meaningful factual basis inquiries may result in less guilty pleas for violations of crimes, including crimes with the interstate commerce jurisdictional hook as an element, like section 922(g)(1), or crimes violating the CSA. But this is no reason to permit lax factual basis inquiries that deny constitutional rights to criminal defendants. It also does not mean that felons in possession of firearms or ammunition or persons who possess drugs face no consequences. Indeed, many states criminalize conduct like these federal crimes.231See, e.g., Alabama Uniform Controlled Substances Act, Ala. Code §§ 20-2-1, -2, -71, -72 (2021); Fla. Stat. Ann. § 790.23 (West 2020) (felon in possession); New York State Controlled Substances Act, N.Y. Pub. Health Law §§ 3300, 3302, 3304 (McKinney 2021); Oklahoma Uniform Controlled Dangerous Substances Act, Okla. Stat. Ann. tit. 63, §§ 2-101, -401 (West 2021); Or. Rev. Stat. Ann. § 166.270 (West 2020) (felon in possession); Tex. Penal Code Ann. § 46.04 (West 2019) (felon in possession). Accordingly, if the government cannot establish each element of these crimes, the state may still do so under a similar criminal statute and prosecute the criminal defendant for the same conduct.
Meaningfully engaging in the factual basis inquiry will likely erode judicial economy. Prosecutors may be required to put on actual evidence in a change-of-plea hearing like proof about where a firearm was manufactured or that chemical testing revealed the white powder found on a criminal defendant really was five grams of cocaine. Judges may also need to make the inconvenient decision to reject a criminal defendant’s guilty plea when there is no evidence presented in a change-of-plea hearing of the interstate commerce element or drug type or amount.
Although the erosion of judicial economy is never favorable, even less favorable is the erosion of constitutional rights. Rule 11(b)(3) provides criminal defendants with the protection of due process in a setting in which they are vulnerable and need the Constitution the most. Virtually every convicted federal criminal defendant is convicted via a change-of-plea hearing, stripped of numerous constitutional protections.232See Schmitt & Russell, supra note 2, at 8 (explaining that 97.6% of federal offenders plead guilty and that this rate has been consistent for more than fifteen years). Many of these defendants have been or will be convicted of crimes with at least one element that is not a foregone conclusion.233See supra note 12 and accompanying text. Evidence of every element of the crime therefore ensures that all criminal defendants do not enter a guilty plea for a crime they do not know they did not commit and avoids the ultimate injustice: the wrongful deprivation of liberty. Thus, although judicial economy is an important value in the criminal justice system, its subordination to protecting constitutional rights comports with the foundational principles of the system that a man is innocent until proven guilty and the government always has the burden of proof, even if that means expending judicial resources at a trial. Judicial economy should never subvert to constitutional rights, and a more stringent enforcement of the factual basis inquiry reinforces all of these foundational principles.
The near-extinction of the federal criminal trial necessarily means a near-extinction of numerous constitutional rights when a defendant is charged with committing a crime. The limited constitutional protections embedded in a change-of-plea hearing, then, are exceptionally important to make sure the criminal justice system convicts only the guilty. The factual basis inquiry, which ensures a conviction is not obtained in violation of due process, must therefore be meaningfully enforced to protect the criminal defendant from being convicted of a crime he does not know he did not commit. Specifically, when an element of the crime charged requires proving the interstate commerce jurisdictional hook or presence of a type and amount of a drug, the typical factual basis inquiry solely questioning the criminal defendant probably is not enough to pass constitutional muster. This is especially true when the constitutionality of the jurisdictional hook itself is questionable, and whether elements regarding the hook or the type and amount of a drug are not a foregone conclusion and are likely outside the personal knowledge of the criminal defendant. The Constitution and Rule 11(b)(3) require the government to put on actual evidence of each element of the crime charged to comply with due process and satisfy the rule. At worst, meaningfully engaging in the factual basis inquiry will minimally erode judicial economy. At best, it will protect criminal defendants’ due process rights, safeguard criminal defendants from pleading guilty to crimes they do not know they did not commit, and promote confidence in the criminal justice system. The system demands that the latter considerations trump judicial economy every time.