Given the foregoing, the equal protection issues in this case can be stated as follows: 1) can concern over a potential constitutional infirmity provide the state with a legitimate interest in making a statutory classification? and 2) if so, was such concern rational in this case? The Court answers both questions affirmatively, and therefore rejects defendant's equal protection challenge.
As to the first question, it is axiomatic that Congress need not legislate to the full extent of its constitutional authority whenever it enacts a statute. The Supreme Court addressed this principle in the context of Commerce Clause powers in United States v. American Building Maintenance Indus., 422 U.S. 271, 95 S. Ct. 2150, 45 L. Ed. 2d 177 (1975). In that case, the Court recognized that Congress can choose to regulate only activities deemed to be "in commerce," as opposed to "an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce." American Building Maintenance, 422 U.S. at 280, 95 S. Ct. at 2156 (citing to legislation acknowledging that use of the statutory term "in commerce" reflects an exercise of less power than that asserted in statutes using the term "affecting commerce"). Of course, to say that Congress may choose to exercise less than all of its Commerce Clause power is not to say that it may base its decision on illegitimate grounds. The question therefore remains whether a statutory classification based on a concern for the constitutional viability of a statute meets the legitimate state interest test.
The court concludes that it does. In fact, the answer appears nearly self-evident. Tailoring statutes so that they do not raise constitutional questions is at the very least a legitimate objective, and even perhaps almost always a desirable one. To hold otherwise would force Congress to push the ends of the constitutional envelope with every statute it enacts, thus rendering Congress powerless to predict confidently the validity of its own enactments.
The Supreme Court tacitly recognized this principle in the context of the Commerce Clause in Scarborough v. United States, 431 U.S. 563, 97 S. Ct. 1963, 52 L. Ed. 2d 582 (1977). In Scarborough, the Supreme Court was presented with the construction of a federal statute that outlawed the receipt, possession, or transport in commerce or affecting commerce of any firearm by a convicted felon. In discussing the legislative history of the statute's requirement of a nexus to commerce, the Court observed: "Congress was not particularly concerned with the impact on commerce except as a means to insure the constitutionality of [the statute]." Id. at 575 n.11. In the present action, this Court is presented with legislative history similarly suggesting that Congress included the requirement that the stolen motor vehicle be transported, shipped, or received in interstate or foreign commerce in order to insure the statute's constitutionality. Cf. Hennessey v. NCAA, 564 F.2d 1136, 1144-45 (5th Cir. 1977) (creating regulatory exception was "certainly a legitimate state objective" when failure to create exception would result in situation where "immediate compliance [with the regulation] would be impossible or impracticable . . . particularly in view of the Constitutional mandate against any state law 'impairing the Obligation of Contracts'").
Having determined that protecting the constitutionality of a statute by limiting its sweep is a legitimate state interest, I must next determine whether the classification (inter vs. intrastate commerce) is, in fact, rationally related to that interest. In its memorandum, the government notes that it is permissible under the equal protection clause for Congress to create a classification by drawing a line at a point beyond which it could not constitutionally go. See Government's Memorandum, at 7-8, citing Packer v. State of Utah, 285 U.S. 105, 110, 76 L. Ed. 643, 52 S. Ct. 273 (1932) ("It is a reasonable ground of classification that the State has power to legislate with respect to persons in certain situations and not with respect to those in a different one"); United States v. Henry, 504 F.2d 1335, 1337 (10th Cir. 1974), cert. denied, 421 U.S. 932, 95 S. Ct. 1660, 44 L. Ed. 2d 90 (1975) (same); United States v. Wynde, 579 F.2d 1088, 1092-3 (8th Cir.), cert. denied, 439 U.S. 871, 99 S. Ct. 204, 58 L. Ed. 2d 184 (1978); see also United States v. Ziegenhagen, 420 F. Supp. 72 (E.D.Wis. 1976).
While this is certainly so, it is not dispositive of the instant matter. The government's argument would be on target if it had been definitively established that the reach of the Commerce Clause would not extend so far as to permit Congress to criminalize the theft of cars in intrastate commerce. However, such is not the case. As noted in the previous section of this Memorandum, the Commerce Clause can, and sometimes does, permit the exercise of congressional authority over solely intrastate activity. See Perez, supra, and cases cited therein. In fact, in this case, the connections between car theft and interstate commerce set forth in the legislative history of § 2119 -- specifically, nationwide resale of car parts and increased cost of car ownership -- both support the conclusion that thefts of intrastate cars affect interstate commerce as much as thefts of interstate cars.
The rationality issue thus becomes a matter of degree. If it was settled that Congress could criminalize intrastate car thefts, its failure to do so based on doubt as to constitutionality would not be rationally related to the interest of shielding the statute from valid constitutional challenges. Put more simply, Congress' concern as to the constitutionality of the statute would be irrational and thus impermissible if there were no grounds for that concern.
The Court finds that Congress' constitutional concern over its power to regulate the theft of intrastate cars was rational. Several factors support this conclusion. First, Congress had been warned by the Justice Department that the statute might be unconstitutional without a stated nexus to interstate commerce. As noted above, during testimony before the Subcommittee on Crime and Criminal Justice, a Department of Justice official told the Subcommittee that the version of § 2119 that had no stated tie to interstate commerce "would be subject to serious challenge" on "jurisdictional" grounds. It was not irrational for Congress to heed the warnings of the governmental department that is responsible for executing Congress' criminal legislation, and, indeed, for supporting the constitutionality of that legislation in court. Second, the "vehicle" statutes that appear most closely related to § 2119 all include some type of limitation explicitly restricting their application to things "in commerce": e.g., 18 U.S.C. § 2312 (prohibiting interstate transportation of a previously stolen vehicle), 18 U.S.C. § 2313 (prohibiting receipt of a stolen vehicle after it had previously been transported in interstate commerce). See also 18 U.S.C. § 2314 (prohibiting interstate transportation of previously stolen property worth at least $ 5,000), 18 U.S.C. § 2315 (prohibiting receipt of stolen property worth at least $ 5,000 after it had previously been transported in interstate commerce); 18 U.S.C. § 659 (prohibiting theft of goods that were "moving as, or were a part of, or constituted an interstate or foreign shipment"), 18 U.S.C. § 922(g)(1) (prohibiting a felon from shipping or possessing a firearm in or affecting commerce or receiving a firearm which has been shipped or transported in interstate commerce), 18 U.S.C. § 1201(a)(1) (requiring interstate transportation of a kidnapped person as element of kidnapping offense), 18 U.S.C. § 1343 (requiring use of "wire, radio, or television communications in interstate or foreign commerce" as element of wire fraud offense), 18 U.S.C. § 1952(a)(3) (prohibiting interstate travel for purpose of carrying out unlawful activity), 15 U.S.C. § 77q(a) (requiring "transportation or communication in interstate commerce or by the use of the mails" as element of securities fraud offense). On the other hand, those situations in which Congress has extended its Commerce Clause reach so far as to criminalize solely intrastate conduct appear to be fewer and of more recent vintage. See p. 4-5, and n.4, supra. Therefore, it would certainly be rational for Congress to place the anti-carjacking statute within the traditional statutory formulation that draws a distinction between interstate and intrastate commerce regulations.
Finally, the defendant's burden in proving irrationality in the context of an equal protection challenge is a tall one, indeed. See, e.g., Johnson v. Cohen, 836 F.2d 798, 806 (3d Cir. 1987) ("In order for a statute to withstand scrutiny under [the rationality] test, the government need only demonstrate that the statute does not arbitrarily discriminate against an identifiable group of persons."); Dandridge v. Williams, 397 U.S. 471, 487, 90 S. Ct. 1153, 1162, 25 L. Ed. 2d 491 (1970) ("It is enough that the State's action be rationally based and free from invidious discrimination."). Not surprisingly, the defendant has failed to show that Congress, in making this classification, acted "arbitrarily" or "invidiously." The court is satisfied that the classification made by Congress, even if created out of caution, and even if perhaps not constitutionally mandated, is rational, not invidious and of the type that is constitutionally obnoxious, offensive, or repugnant.
In sum, the Court holds that under the circumstances of this case it was both a legitimate and rational function of legislative craftsmanship to shape the contours of the anti-carjacking statute to perceived safe constitutional bounds for fear that failure to do so would render the legislation vulnerable to invalidation.
The defendant claims that both § 2119 and the instant indictment are vague. The defendant does not identify which portion of each he finds vague, or why the statute or the indictment as a whole are vague, but, instead, merely states the conclusion that both are impermissibly indefinite.
The Supreme Court has stated the test for evaluating whether a statute is vague as follows:
As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.
Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903 (1983).
Section 2119 satisfies both of the vagueness concerns because it contains no ambiguities. In United States v. Donahue, 948 F.2d 438, 441 (8th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1600 (1992), the Court addressed the sufficiency of language nearly identical to that contained in § 2119. The Court stated:
A statute that reads, in relevant part, "Whoever, by force and violence, or by intimidation, takes . . . from the person or presence of another . . . any . . . money . . . belonging to . . . any bank . . . shall be . . . imprisoned," 18 U.S.C. § 2113(a), does not "'fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808 (1954), nor is [it] so indefinite that 'it encourages arbitrary and erratic arrests and convictions,' Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972)." Colautti v. Franklin, 439 U.S. 379, 390, 58 L. Ed. 2d 596, 99 S. Ct. 675 (1979). One does not have to be a rocket scientist to know that bank robbery is a crime; and the statute merely makes malum prohibitum (and punishable in federal court) that which is already malum in se.