The Keene Act is a federal law in the Watchmen universe that prohibits “costumed adventuring.” But it would it actually pass Constitutional muster?

The United States Congress does not have what is called a general police power; its powers are specified in the Constitution and anything not so specified is reserved to the states and the people by the 10th Amendment. So for the Keene Act to be constitutional, there must be some justification for it in the Constitution. Let’s take a look at the options.

First, let’s dispose of some powers that definitely don’t fit. The spending power can be used to force states to pass laws that the federal government couldn’t pass itself by threatening to withhold federal funding. South Dakota v. Dole, 483 U.S. 203 (1987). The spending power is general enough that it could address this issue, but the Keene Act seems to be a self-contained piece of federal legislation, not a coercive act designed to prompt action by the states. So while Congress could use the spending power to require the passage of state-level costumed adventuring bans (by, e.g., threatening to withhold law enforcement funding), that doesn’t seem to be the approach used in the Watchmen universe.

One route to making something a federal crime is to limit it to cases involving federal land, property, employees, etc, but the Keene Act seems too general for that. No, we must go big, and that means the Commerce Clause.

The Commerce Clause is the mainstay of modern congressional authority. Although it does have some limits (see, e.g., United States v. Morrison, 529 US 598 (2000)) the scope of the Commerce Clause has expanded greatly over the past century. I think it could form the basis of the Keene Act.

The Commerce Clause is limited to interstate commerce, but there is an interstate market for crime prevention and investigation services (e.g., private security firms, private investigators, bounty hunters). Firms and individuals involved in this market routinely work across state lines. The Keene Act could be based on requiring, for example, that anyone working in such a market do so under their real identities. The legitimate government interest would be the safety of consumers of such services; it is valuable for consumers of such services to know who they are dealing with. Thus the Keene Act could satisfy rational basis review under the Commerce Clause.

It should be noted that the fact that costumed adventurers actually provide their service for free and often without contracting with clients is of no account, as is the fact that they may work only within one state. The Commerce Clause extends to non-commercial transactions and even intra-state activities as long as doing so is necessary to make the interstate regulation effective. Gonzales v. Raich, 545 U.S. 1 (2005). If the local or non-commercial activity affects the interstate market, the Commerce Clause can reach it. 545 U.S. at 19. The existence of costumed adventurers no doubt affected the market for regular security firms, private investigators, and bounty hunters. If the aggregate impact on the market was substantial or significant, then that is enough. Id. at 19-20.

This may seem like an extreme take on the Commerce Clause, but let us recall that this is the same universe in which Richard Nixon essentially became President-for-Life. The federal government of the Watchmen universe is likely to be very powerful indeed, and that means a broad Commerce Clause.

[Credit: This post was inspired by this comment by Will Frank.]