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The most conservative federal appeals court in the country just made a move that “hazards untold consequences for federal law,” including by casting doubt on the ability to prosecute the possession of child pornography, explosive materials and biological weapons.
That’s according to Judge Stephen Higginson of the U.S. Court of Appeals for the 5th Circuit, which hears cases from Louisiana, Mississippi and Texas. The Obama appointee issued the stark warning in a dissent Monday from the circuit’s decision to review a challenge to a federal law that bans gun possession for people with felony convictions.
Higginson noted that Justice Clarence Thomas had “[j]ust a few weeks ago” urged lower courts to re-examine the law. “Already, our court answers the call,” the circuit judge lamented, accusing his colleagues of turning a narrower issue in the case before them into one that “imperil[s] much of the United States Code.”
The circuit appeal stems from the case of Curtis Squire, who is challenging his prosecution under the gun ban. A three-judge circuit panel rejected his appeal, but on Monday, the full slate of circuit judges vacated the panel ruling and agreed to “en banc” review, meaning the full circuit will now weigh in. En banc review can be an intermediate step between a three-judge panel ruling and Supreme Court review.
Thomas’ “call” to which Higginson referred came in the justice’s concurring opinion in United States v. Hemani. In a June 18 ruling, the high court unanimously sided with marijuana user Ali Hemani, who was charged under a section of the federal law that bans gun possession for people who unlawfully use, or are addicted to, controlled substances. Justice Neil Gorsuch wrote for the court that Hemani’s prosecution violated the Second Amendment.
Yet while siding with Hemani, Gorsuch stressed the narrowness of the ruling, noting, among other things, that the court wasn’t weighing in on the felon possession ban.
Thomas went further, as he is wont to do. Though it was a Second Amendment case, his concurrence raised another part of the Constitution: the commerce clause, which grants Congress the power to regulate interstate commerce.
Thomas conceded the issue “was not presented” in the Hemani case. But he nonetheless wrote separately to urge his colleagues “and lower courts” to “revisit the constitutionality of §922(g),” the federal law that contains the felon possession ban. He said that under the commerce clause, Congress “lacks the power to regulate the possession of firearms solely on the ground that they crossed state lines at some point in the past.” The justice known for advancing originalist arguments said he doubted that §922(g) “could be an exercise of Congress’s Commerce Clause powers as an original matter.”
Dissenting from the 5th Circuit’s decision to rehear Squire’s appeal, Higginson said the court “has welcomed the possibility” that Thomas raised: that “Congress’s Commerce Clause authority cannot
support § 922(g).” Higginson said that such a ruling would have “massive import for federal law” and an impact that is “hard to overstate.”
He posed several questions raised by the possibility of upending the law in this way, including: “Can felons from the other eleven circuits now flood the Gulf Coast to rearm themselves?”
“More broadly,” the judge wondered, “what would come of the countless other federal statutes hinging on Congress’s well-settled commerce authority? Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons?”
With all of the possibilities, Higginson said, “this case hazards untold consequences for federal law.” He said that calling them into question, as his colleagues have now done by granting en banc review in Squire’s case, “leaps beyond the felon-in-possession statutes, beyond federal criminal law, and beyond our authority as an inferior court.”
What the circuit actually decides in its en banc review remains to be seen. But this will be a case to watch in that court and beyond if there is a subsequent appeal to the justices.
It’s important to remember that Thomas was alone in his commerce clause concurrence in the Hemani case. So if the circuit issues a ruling in line with that concurrence, then the question will be whether enough of his colleagues on the nine-member bench agree with him. If not, then it wouldn’t be the first time that Thomas is an outlier on the high court.
But his concurrence is already having an impact in the lower court —a grave one, according to Higginson.
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