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Criminal To get case to high court, judge voted against en banc review

A majority of the judges on the court did not agree to rehear the case en banc, although one judge explained he did not vote for en banc review in order to expedite Supreme Court review.


The petition for rehearing en banc was circulated to the full court. No judge requested a poll under Fed. R. App. P. 35. The court denies the petition for rehearing en banc.

Statement respecting denial of petition for rehearing en banc

(Agee, J.) In the almost two decades since the Supreme Court opined on how a jurisdictional element could theoretically bring the regulation of noneconomic activity within Congress’ Commerce Clause power, it has not applied the broad principles discussed in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), to any specific statutory language. This case provides the clear opportunity for the court to revisit those decisions and provide clarity and direction on an essential constitutional question.

Given the number of ways in which the court’s decision in this case fails to adhere to the Supreme Court’s holdings in Lopez and Morrison and the unusual statutory language Congress used in 18 U.S.C. § 249(B)(iv)(I), this case is prime for Supreme Court review. Because the federal courts, Congress and the public will be best served through the benefit of the Supreme Court’s guidance without delay in this important area of constitutional law, I have decided not to pursue the intermediate step of requesting en banc review. 

United States v. Hill (Lawyers Weekly No. 001-174-19, 5 pp.) (Per curiam) Case No. 18-4660. Sept. 24, 2019. Petition for re-hearing en banc.


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