A few days ago, Peter Kirsanow and I submitted an Amicus Curiae Brief supporting the Defendant's Petition for Certiorari in Metcalf v. United States. In it, we argue that Section 249(a)(1) of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 (the "HCPA") is unconstitutional.

For Congress's authority to pass Section 249(a)(1), it purported to rely on the Thirteenth Amendment, which bans slavery and involuntary servitude. Yet it didn't claim that in passing that section its aim was to prevent slavery from returning (and if it had made such claim nobody would have believed it). It's clear that Congress wanted to eliminate hate crimes for the sake of eliminating hate crimes. That is actually a perfectly understandable goal, but it isn't a goal that can be justified by the Thirteenth Amendment.

To give you a taste of our argument, here is selection from the Brief's Summary of the Argument:

Section 1 of the Thirteenth Amendment bans slavery and involuntary servitude—period. Section 2 grants Congress the power to effectuate that ban. But while Congress is given broad prophylactic power to ensure that slavery is indeed banished, it is not given the additional independent power to uproot the badges, incidents, and relics of slavery untethered to the goal of banning slavery itself.

The ramifications of the contrary view are extraordinary. Consider the Nineteenth and Twenty-Sixth Amendments. Since they contain essentially identical grants of power to Congress, they would have to be interpreted to allow Congress to uproot historical relics of women's and 18-year-olds' past disfranchisement. It is safe to say that the power to remake the country as Congress thinks it "would have been" is virtually an unlimited power.

A more reasonable interpretation of these amendments is that they ban exactly what they say they ban. In the Thirteenth Amendment's case, that would be slavery and involuntary servitude. Congress's prophylactic power, although broad, must be focused on that end.

The [HCPA] was passed in 2009—144 years after the Thirteenth Amendment's enactment. One section of that act, codified at 18 U.S.C. § 249(a)(1), nevertheless relies on Congress's Section 2 power as authority for the creation of criminal penalties for crimes committed "because of the actual or perceived race, color, religion, or national origin of any person." (A different section, not at issue in this case, relies on the Commerce Clause to prohibit crimes occurring "because of" someone's religion, national origin, gender, sexual orientation, gender identity and disability, 18 U.S.C. § 249(a)(2), and requires proof of an interstate commerce nexus.)

Congress did not claim that it passed Section 249(a)(1) to effectuate the Thirteenth Amendment's ban on slavery. Instead it stated that it was attempting to eliminate the "badges, incidents and relics of slavery." The provision is thus unconstitutional. See McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (stating that Congress is due deference on the means by which it accomplishes legitimate ends, but not the ends themselves).

Even if Congress had claimed that it enacted Section 249(a)(1) to prevent slavery's return, the provision would still be unconstitutional. When Congress makes a dubious claim that it is motivated by a desire to effectuate the Constitution's ban on slavery, the applicable standard is the "congruence and proportionality" test of City of Boerne v. Flores, 521 U.S. 507 (1997). Such a standard sidesteps the need for the Court to directly address the issue of Congress's sincerity and instead applies an objective test of whether Congress's solution fits the problem it purports to address.

Section 249(a)(1) is in no way "congruent and proportional" to the problem of slavery. No one claims that slavery could return without Section 249(a)(1). Instead, it is clear that Congress is motivated by the desire to rid the nation of bias crimes—a perfectly understandable goal, but not a federal goal. In doing so, however, it imposes substantial costs on the criminal justice system, including double jeopardy concerns. When there is a real federal interest at stake, these costs may be tolerable—but not when there is not.

Even if the "rationality standard" of … Shelby County v. Holder, 133 S. Ct. 2612 (2013), applies instead, Section 249(a)(1) would be unconstitutional. As Shelby County makes clear, such a standard requires that current burdens be justified by current needs. The threat of slavery today is a mere phantom; the threat of double prosecutions in emotionally-charged cases is all too real.

The Eighth Circuit erred in concluding that Jones [v. Alfred Mayer Co., 392 U.S. 409 (1968)],is an obstacle to holding Section 249(a)(1) unconstitutional. Jones need not be overruled in order to conclude that Congress overreached in passing Section 249(a)(1). Jones was about a Reconstruction Era statute, which it interpreted to ban private discrimination in real estate sales. Whatever that statute's correct interpretation, there is no doubt that eliminating slavery and preventing its return was the first, second, and third thing on the minds of those who enacted it in 1866. That is in stark contrast to the HCPA more than a century later.

Section 249(a)(1) is unlikely to be the only statute of the near future premised on an expansive reading of Section 2. There has been a growing movement in both academia and Congress to use the Thirteenth Amendment to address a variety of social ills thought to be in some way traceable to, or aggravated by, slavery—ranging from payday lending to race-selective abortion to "hate speech." Granting certiorari in this case obviates the need for multiple constitutional challenges in the future. An ounce of Constitutional prevention is worth a pound of cure.