RICO and the Commerce Clause: A Reconsideration of the Scope of Federal Criminal Law

This Note considers the tension between two recent trends in federal law. On the one hand, the Supreme Court has recently attempted to place limits on the scope of congressional commerce power. On the other hand, the past forty years have seen a rapid expansion of federal criminal law, with many federal criminal statutes relying on the Commerce Clause for their authority. This tension has led to uncertainty regarding the constitutionality of many federal criminal statutes, and general disagreement over the circumstances under which Congress may ever regulate or criminalize intrastate noneconomic activity. An examination of the Supreme Court’s Commerce Clause jurisprudence reveals that the Court has answered this question consistently by using a two-step inquiry. If the regulated activity is noneconomic, the Court first asks whether Congress has occupied the field with a regulatory scheme that deals with interstate commercial activity. Second, it asks whether regulation of the noneconomic activity is necessary to prevent the broader regulatory scheme from being undercut. The Note derives this two-step inquiry from the Supreme Court’s cases and considers how this understanding would affect the reach of the Racketeer Influenced and Corrupt Organizations Act (RICO), as well as other federal criminal laws.