Facts: McCoy was charged with violation of a federal child
pornography law and pleaded guilty conditional upon her right to appeal on
constitutional grounds. McCoy appealed
to the Ninth Circuit Court of Appeals, arguing that the statute under which she
was charged exceeded the constitutional authority of Congress under the
Commerce Clause.
Issue: Is the section of the statute that forbids possession
of child pornography “made with materials transported in interstate commerce” constitutional
under the Commerce Clause?
Rule: To determine whether a statute is constitutional
under the Commerce Clause, the four-part test of Morrison must be applied:
1.
Is the prohibited
activity of a commercial or economic nature?
2.
Is the connection
between the prohibited activity and interstate commerce too attenuated to allow
the exercise of the Commerce Clause power?
3.
Does the statute
contain an “express jurisdictional element” intended to satisfy Commerce Clause
requirements?
4.
Do congressional
findings exist to support a connection between the prohibited conduct and interstate
commerce?
Analysis: The majority notes that its decision does not affect
the ability of the state of
The majority starts by
finding that Morrison controls in the current case
and sets out a four-part test to find out whether the Commerce Clause power was
exceeded.
Following the first factor, the
majority finds the fact that McCoy’s behavior was non-commercial and
non-economic to be especially important to their conclusion. The court distinguishes this case from Wickard, saying basically that since
McCoy was not a customer in the interstate child pornography business, the
photograph she was responsible for would not affect that business in any way.
The court finds that there is
not a highly attenuated relationship between McCoy’s behavior and interstate
commerce, but rather no relationship whatsoever.
The court notes that the statute
in question does contain an express jurisdictional element, but the court says
that this is not dispositive. This goes
against what some other Circuits have claimed in decisions pre-dating Morrison.
Finally, the court finds that
the legislative history does not support the constitutional application of the statute
to non-commercial activities. The court
notes that the congressional findings mention “multimillion dollar [child
pornography] industries”, suggesting
that the statute is mostly intended to combat child pornography in terms of
commercial activity. The court also
finds that the legislative history contains previously expressed concerns over
the constitutionality of the statute.
The dissent argues against
the technique of narrowly construing the statute to make a particular section unconstitutional
while apparently leaving the remainder unaffected. Instead, the dissent says that the court
needs to either find the statute constitutional on its face or unconstitutional
on its face. Moreover, the dissent would
give more deference to Congress in their implicit finding that purely non-commercial,
intrastate possession of child pornography substantially affects interstate
commerce. The dissent says this a political
question and not a legal question.
Conclusion: The court finds that the statute is unconstitutional
as applied and reverses McCoy’s conviction.