By reason of an equally divided en banc court, we affirm the district court's judgment of conviction and sentence.

W. EUGENE DAVIS and BENAVIDES, Circuit Judges, concurring in the affirmance of the judgment:

It is a deep mystery to us why five judges thought it helpful or appropriate to take eight fellow judges to task for failing to explain why they decline to change the established law of this circuit and create a circuit split. We of course disclaim their attempt to attribute views to us.

GARWOOD, Circuit Judge, with whom E. GRADY JOLLY, PATRICK E. HIGGINBOTHAM, EDITH H. JONES, JERRY E. SMITH, RHESA HAWKINS BARKSDALE, DeMOSS and CLEMENT, Circuit Judges, join, dissenting:

We respectfully dissent from the evenly divided Court's per curiam, unexplained affirmance of these convictions. The nature of the case and our reasons for concluding that reversal is required are set forth below.

James McFarland, Jr. appeals his conviction of four counts of robbery of local convenience stores in Fort Worth, Texas, in violation of 18 U.S.C. § 1951 (the Hobbs Act) and four corresponding counts of using and carrying a firearm during and in relation to those robberies in violation of 18 U.S.C. § 924(c)(1). He challenges his conviction on the Hobbs Act counts, asserting that the evidence was insufficient to establish the constitutionally or statutorily required nexus to interstate commerce and that the jury charge respecting this element was defective. A panel of this court affirmed per curiam. United States v. McFarland, 264 F.3d 557 (5th Cir.2001). The panel considered itself bound by our prior decision in United States v. Robinson, 119 F.3d 1205 (5th Cir.1997), and United States v. Hickman, 151 F.3d 446 (5th Cir.1998), aff'd by an equally divided en banc court, 179 F.3d 230 (5th Cir.1999), cert. denied, 530 U.S. 1203, 120 S.Ct. 2195, 147 L.Ed.2d 232 (2000). Judge DeMoss specially concurred, 264 F.3d at 559-61, urging en banc reconsideration in light of the intervening decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), the equally divided nature of the Hickman en banc affirmance and Judge Higginbotham's dissent therefrom. The Court subsequently took the case en banc. United States v. McFarland, 281 F.3d 506 (5th Cir.2002).

McFarland was charged in a ten count indictment with five Hobbs Act robbery counts, and five related section 924(c)(1) counts, pertaining to robberies of local convenience stores committed in Fort Worth, Texas, in November and December 1998.1 He was acquitted of one of the robbery counts and of its related section 924(c)(1) count.2 He was convicted on all the remaining counts. The four Hobbs Act counts of conviction (counts one, five, seven and nine) each alleged that McFarland "did knowingly and willfully obstruct, delay, and affect interstate commerce and did attempt to obstruct, delay and affect interstate commerce, by robbery, to wit: the defendant did take and obtain property, namely United States Currency, from the person and in the presence of ... [name of store employee], an employee of... [name and address of store], against his will by means of actual and threatened force, violence, and fear of injury to his person."3

The stores involved, the amounts taken, in each case from the cash register, and the relevant dates of the four robberies were the following:

Count one, robbery November 20, 1998 of "Buy-Low" convenience store in which "about $100, close to $100" was taken;

Count five, robbery December 3, 1998 of Gateway Discount Liquor store in which "somewhere around 15 [$1,500] to $2,000" cash was taken;

Count seven, robbery December 11, 1998, Quickway Shopping convenience store in which "about $50" cash was taken;4

Count nine, robbery December 21, 1998, Jeff Stop convenience store, in which $145 cash was taken.

Each of these four stores was a retail store, three being retail convenience stores and one a retail liquor store. There is no evidence that any of the four stores made any sales or shipments to points or purchasers outside of Texas, or, indeed made any sales other than at the store premises to retail purchasers resident in Fort Worth. There is no evidence that any of the stores was located at (or near) any transportation facility, such as a bus or train station or airport, or on an interstate highway. Three of the stores—Buy-Low, Jeff Stop and Gateway Discount Liquor— were apparently stand-alone, single location, concerns, unaffiliated, by common ownership or otherwise, with any other concern. The Quickway Shopping convenience store was apparently one of an unstated number of such stores so named, and William Gumfory, owner of the store robbed, may have owned some (or all) of the other Quickway Shopping convenience stores.5 There is no evidence that any of the four robbed stores (or any Quickway Shopping store) had any facilities, property, employees, bank accounts or activities outside of Fort Worth, or was owned, in whole or in part, by any one not a Fort Worth resident.

Each of the four retail stores sold items of merchandise some of which the evidence showed were originally manufactured or processed outside of Texas.6 As to none of the three convenience stores was there any evidence indicating what fraction or percentage of their sales was of or allocable to items which had been manufactured or processed out of Texas, or what was the total dollar amount either of such sales or of all sales at the particular store. As to the Gateway Discount Liquor store, one of the three Texas wholesalers who supplied it testified that ninety-five percent of what he distributed both generally and to that particular store "came from outside the state of Texas" and that a very small amount of liquor or wine products was produced in Texas. The only evidence as to the Gateway Discount Liquor Store's dollar volume of sales and purchases was that it had $26,640.69 sales and $23,084.73 purchases from November 17 to November 30, 1998, and $34,910.03 sales and $36,547.67 purchases from December 1, 1998 through December 17, 1998, and that in the retail liquor business people start buying after Thanksgiving and the busiest time of year is from October through December.

There was no evidence that either the Buy-Low store or the Jeff Store acquired any of their inventory from sources outside of Texas, as opposed, for example, to acquiring it from a Texas wholesaler. Indeed, there was no evidence whatever as to how or from whom or where or on what basis either of those two stores acquired their inventory, except that they purchased it. The only evidence in this respect as to Gateway Discount Liquor is that it purchased its inventory from three Texas wholesalers, as required by Texas law. The only one of these three wholesalers who testified stated "I pay for that product beforehand, and its mine to distribute and sell and collect." Quickway Shopping purchased its merchandise inventory from a Weatherford, Texas, wholesaler, Hartnett Company, which in turn had purchased items including Tropicana juices from Florida, Wrigley's Gum and Gatorade from Chicago, and Purina dog food from Oklahoma. The goods Hartnett Company acquires come to a warehouse in Texas. It then sells them to local retail stores (and to some stores in Kansas). Quickway Shopping also sold money orders which it acquired from a company in Minnesota, and Mr. Gumfory testified "any money orders we sold we paid off the same day" and estimated "we sold probably 300 a month." It is not clear whether the 300 figure refers to the total number of individual money orders or the total face amount of the money orders sold per month. Nor is it clear whether the reference is to all Gumfory's Quickway Shopping stores or the particular one robbed of $50 on December 11, 1998.

The owners when the robberies occurred of Buy-Low, Jeff Stop and Gateway Discount Liquor stores testified that the percentage of their gross sales proceeds used to restock inventory was seventy-five percent for Gateway and Jeff Stop and seventy percent for Gateway. The former owner of Quickway Shopping testified that his profit margin on sales was approximately twenty-five percent, meaning that "if we sold $20,000 a month, we would have to buy $15,000 a month to replace it." These store owners each gave brief, conclusory testimony that robbery of money from the store would cause problems respecting, hurt or hinder inventory purchases.7 However, there was no evidence that any of the stores actually did purchase less, or delay any purchase, as a result of (or following) the charged robbery of that store. No questions in that respect were asked of the Buy-Low or Jeff Stop owners, and no one identified as a seller or supplier to either testified.8 Likewise, neither the Gateway Discount Liquor owner (whose sales and purchases rose following the robbery) nor the former Quickway Shopping owner, nor their wholesalers, ever testified that as a result of the charged robbery the retail store actually reduced or delayed any purchases, and their testimony suggests that they did not.9 The Quickway Shopping former owner, when asked "were you not able to buy anything you would normally buy because that $100 wasn't there," responded "we would be able to buy it, but we would have to take the $100 from the bank or somewhere to keep our balances in the correct proportion."10 The Gateway Discount Liquor owner, when asked "after the $1,500 to $2,000 was taken from you by the defendant, did it cause your business problems," responded

"It kept me a little stretched. In business every day sales are ringing, but we have to overstretch some bills and tell the distributor that we won't be able to pay you today, but we'll pay you in the next two or three days."

Apart from the just above quoted testimony of the Gateway Discount Liquor owner, there was no evidence that any of the robberies resulted in any of the victim stores even slightly delaying any payment to any party as a result of the charged robberies.

McFarland made and renewed timely motions for judgment of acquittal on the grounds, inter alia, that the required nexus to interstate commerce was not shown as to any of the Hobbs Act counts. These motions were overruled. The trial court's jury charge instructed, with reference to the Hobbs Act counts, that, among other things: "If you decide that there is any effect at all of [sic] interstate commerce, then that is enough to satisfy this element. The effect can be minimal. A showing that a business regularly buys goods from out of state allows an inference that a robbery may impair a future purchase.... If you find beyond a reasonable doubt that the defendant's conduct affected interstate commerce, then you may conclude that the government has met its burden of proof as to the interstate commerce element of the offense."

McFarland objected to the word "any" in the first sentence above quoted, objected to the sentence "the effect can be minimal," and to the failure to include the word "substantially," as he had previously requested, between "conduct" and "interstate commerce" in the last above quoted sentence. These objections were all overruled.

As noted, the principal issue presented is whether the Hobbs Act extends, or may be applied consistent with the limitations of the Commerce Clause reflected by Lopez and Morrison, to these robberies of local retail stores.

I. The Act, its history and Supreme Court interpretation

The Hobbs Act, 18 U.S.C. § 1951, provides in relevant part:

"(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

(b) As used in this section —

...

(3) The term `commerce' means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction."11

It was originally enacted July 3, 1946, ch. 537, Pub.L. 486, 60 Stat. 420,12 as an amendment to the generally similar Anti-Racketeering Act of June 18, 1934 (the 1934 Act), Pub.L. 376, 48 Stat. 979-80.13 The Hobbs Act was occasioned by the holding in United States v. Local 807, 315 U.S. 521, 62 S.Ct. 642, 86 L.Ed. 1004 (1942) that the 1934 Act, by virtue of its exclusion relating to an employer's payment of wages to an employee and its provision indicating an intent not to diminish union rights, did not apply to the activities of members of a New York City truck drivers union who, by violence or threats, extracted payments for themselves from out-of-state truckers in return for the unwanted and superfluous service of driving the trucks to and from the city. Id., at 643-44, 649; United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 1011, 35 L.Ed.2d 379 (1973) ("[As] frequently emphasized on the floor of the House, the limited effect of the bill was to shut off the possibility opened by the Local 807 case, that union members could use their protected status to exact payments from employers for imposed, unwanted and superfluous services".).14

The Senate Report on S. 2248, which (as amended) became the 1934 Act, states that "the nearest approach to prosecution of racketeers as such has been under the Sherman Antitrust Act" but such prosecutions have been hampered by the requirement of proving conspiracy or monopoly and by being merely a misdemeanor, and that the proposed bill "is designed to avoid many of the embarrassing limitations ... of the Sherman Act, and to extend Federal jurisdiction over all restraints of any commerce within the scope of the Federal Government's constitutional powers." S. Rep. 532, 73rd Cong., 2nd Sess. (1934). The House Report on S. 2248, which recommends a rewritten form of S. 2248, states "this is the so-called `antiracketeering bill' for the suppression of racketeering in interstate commerce," and quotes a memorandum from Attorney General Cummings noting that the bill, with the suggested amendments, had been approved by representatives of organized labor and that "The Sherman Antitrust Act is too restricted in its terms and the penalties thereunder are too moderate to make that act an effective weapon in prosecuting racketeers. The antiracketeering bill would extend the Federal jurisdiction in those cases where racketeering acts are related to interstate commerce and are therefore of concern to the Nation as a whole." H. Rep. 1833, 73rd Cong., 2nd Sess. (1934). Despite the breadth of some of this language, it may be seriously doubted that Congress then contemplated that it was making a federal crime the "plain vanilla" cash robbery from a local retail store of the sort here involved. Moreover, at that time the federal government's commerce power was generally viewed far less expansively than it later came to be. See Lopez, 115 S.Ct. at 1628. The then view of the commerce power is also suggested by S. Rep. 1189, 75th Cong., 1st Sess. (1937), the report of the principal congressional committee (the Copeland Committee) working on the 1934 Act (see United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112, 1115 & n. 6, 55 L.Ed.2d 349 (1978)), recounting its investigations, commencing in 1933, into racketeering and the recommendations it had made for legislation (including the 1934 Act). This report reflects an understanding that there were meaningful limits on the commerce power. For example, the report mentions the "Poultry Racket" "practiced upon the live-poultry business in New York City," to which the "poultry comes from the Southern and Midwestern states," and, due to the rackets, the charge for shipping a carload of poultry from Chicago to New York was less than the charge for its unloading and delivery in New York City. Id. at 16, 17. The report notes "[w]hile some phases of the poultry racket were of a local nature and not within Federal jurisdiction, the committee felt that insofar as the transportation and distribution of live poultry was interstate in character, the necessary legislation should be enacted...." Id. at 18 (emphasis added). The report also discusses "the `kick-back' racket ... that nefarious practice of requiring the employee to give back to his employer a percentage of his earnings," id., observes, respecting the "kick-back racket," that "a great proportion of the complaints came from the building trades" but "[i]t is, of course, practiced in other industries," id. at 19, and concludes, respecting the kick-back racket, that: "After a thorough study of the testimony given and the complaints made, the committee concluded that the majority of the cases presented were of a local nature and were not within the jurisdiction of the Federal Government. But it was decided that the committee could effectuate the purpose of certain Federal statutes concerning rates of wages to be paid on work done under [Federal] Government contracts." Id. at 20 (emphasis added).15

By the time the Hobbs Act eventually passed, the Supreme Court had already begun its articulation of a Commerce Clause power greatly expanded over that as previously defined. See Lopez, 115 S.Ct. at 1628. However, this does not seem to have been a matter at all the subject of consideration by Congress in enacting the Hobbs Act, and the Act was merely directed at changing the result in the Local 807 case. See note 14 and accompanying text, supra. The wording of the Hobbs Act did not in any presently meaningful way change the 1934 Act's interstate commerce nexus requirement.16

Nor is any more expansive relation to interstate commerce suggested by the Congressional committee reports on H.R. 32, the bill which became the Hobbs Act. The House Committee on the Judiciary report states that the bill is a "successor" to similar bills introduced in the 77th and 78th Congresses (the first not acted on, the second passing the House but not acted on by the Senate), and that the bill's purpose is "to prevent interference with interstate commerce by robbery or extortion." H. Rep. 288, 79th Cong., 1st Sess. (1945), at 1. It goes on to say that the bill

"is an amendment of the existing antiracketeering law which was enacted in 1934. It was passed in an effort to eliminate racketeering in relation to interstate commerce, of concern to the Nation as a whole. That statute came under examination of the Supreme Court in United States v. Local 807, and the opinion in that case is set out in full, both the majority opinion and the dissent:", id. at 1, 2,

which opinions the report then proceeds to quote in full. Id. at 2-9. Thereafter, the report recites that the bill's objective "is to prevent anyone from obstructing, delaying, or affecting commerce, or the movement of any article or commodity in commerce by robbery or extortion." Id. at 9. The concluding section of the report commences by stating "The Congress does not need to be reminded that the Constitution of the United States confers on it the exclusive and unlimites [sic] power to regulate interstate commerce," id. at 10 (emphasis added), that "the members of the Constitutional Convention agreed that our Federal Government would be destroyed if barriers should be erected in any way to impede the free flow of interstate commerce," and, finally, that "This bill would outlaw two kinds of criminal interference with interstate commerce." Id. Certainly what this report is concerned with is interference with the movement of articles in interstate commerce, with interstate commerce itself.17

The debates in the House are wholly consistent with this.18 As previously observed, these debates reflect that the "sole" purpose and effect of the Hobbs Act was to override the Local 807 case and remove the exemption from the 1934 Act which that case was thought to create for union members. See note 14, supra, and accompanying text. Two other aspects of these debates should be mentioned.

First, the discussion of the evils the pending bill was designed to eliminate focused almost entirely on the interruption of commodity shipments actually moving in interstate commerce, principally agricultural commodities being carried by truck across state lines.19

Other aspects of the debate likewise reflect an emphasis that the bill applied only to interstate commerce, without any broad reading of that concept. See, e.g., 89 Cong. Rec. 3210 (1943) ("It is directed against robbery and extortion when used to obstruct the free flow of goods in interstate commerce, no matter who the offenders may be.") (Rep. Hancock); 91 Cong. Rec. 11843 (1943) ("... it is the duty of Congress to protect its citizens and the people who use the highways in interstate commerce. Remember, this proposal applies to interstate commerce only. ... if interstate commerce is being interfered with, and if the farmers and truckers, who take food into New York from the surrounding territory and States, must submit to the treatment outlined by Chief Justice Stone, then it seems clear that it is the obligation of the Congress to furnish national protection in these interstate operations)." (emphasis added) (Rep. Michener); id. (Rep. Graham. "Is not this bill limited to interstate commerce alone?" Rep. Michener. "Certainly."; emphasis added); id. (Rep. Robsion. "Would this apply to those conditions in a number of other States where they meet and overturn milk trucks and do other things like that?" Rep. Michener. "This bill applies to interstate commerce only."; emphasis added); id. at 11912 ("... the sole and simple purpose, the single purpose, of this bill is to do the best we can to protect interstate commerce and free the highways and streets of this country of robbers") (Rep. Hobbs). The following exchange is similarly relevant:

"Mr. GRANGER. This applies only to interstate commerce, does it not?

Mr. SPRINGER. It applies to interstate commerce.

Mr. GRANGER. It would not affect a farmer who picked up produce within his own State and delivered it within his own State? That would be intrastate commerce?

Mr. SPRINGER. Yes.

Mr. GRANGER. What is interstate commerce? Is a farmer who crosses the State line with his own property engaged in interstate commerce?

Mr. SPRINGER. There is no doubt but that he is engaged in interstate commerce when he crosses a State line.

Mr. ROBSION of Kentucky. A transaction within a State may be interstate commerce if it oppresses and interrupts seriously or in a substantial way goods moving from one State to another?

Mr. SPRINGER. The gentleman is entirely correct. That has been defined by judicial decisions." Id. at 11910.

We are aware of nothing in the legislative history relating or referring to the aggregation principle or anything comparable to it as applicable to discrete intrastate actions which individually have only a minimal, indirect and attenuated effect on interstate commerce.

This legislative history strongly suggests to us that Congress in enacting the Hobbs Act was concerned with protecting against relatively direct obstruction of the actual movement of goods in interstate commerce, and did not contemplate its application to robberies of local retail stores such as those here.20 However, the Supreme Court in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), stated that the Hobbs "Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. The Act outlaws such interference `in any way or degree.' 18 U.S.C. § 1951(a) ..." Id. at 272. The victim there was extorted of some $31,000 to avoid cancellation of his contract to supply from his Pennsylvania plant concrete for the construction of a Pennsylvania steel mill; the victim depended on shipments of sand to him from outside of Pennsylvania to make the concrete, and such shipments would have slackened or stopped had his contract to supply the steel mill job been cancelled. Id. The Court observed that "[i]t was to free commerce from such destructive burdens that the Hobbs Act was passed," citing United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494 (1956). Stirone, at 272.21 Stirone went on to state that it did not have to decide the "more difficult question" of whether an adequate interstate commerce nexus would have been shown by the evidence that the steel mill would produce steel to be shipped in interstate commerce. Id. at 272. Later, in United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978), the court stated that the "in any way or degree ... affected commerce ... by robbery or extortion" words of the Hobbs Act "do not lend themselves to restrictive interpretation," and proceeded to quote Stirone's statement that they manifest "`a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.'" Culbert at 1113.22

In Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), the Court construed the federal arson statute, 18 U.S.C. § 844(i), as not extending to arson of a home insured by an out-of-state insurer, financed by an out-of-state lender, and furnished with gas from out-of-state, relying in part on the principle of avoiding a statutory construction under which "`grave and doubtful constitutional questions arise,'" and stating "[g]iven the concerns brought to the fore by Lopez, it is appropriate to avoid the constitutional question that would arise were we to read § 844(i) to render the `traditionally local criminal conduct' in which petitioner Jones engaged `a matter for federal enforcement.'" Jones at 1911, 1912. Accordingly, in Jones, the court read the words "used in" in section 844(i) as modifying "any activity affecting interstate ... commerce," so that "an owner-occupied residence not used for any commercial purpose does not qualify as property `used in' commerce or commerce-affecting activity" within the meaning of section 844(i). Id. at 1908, 1910-11. However, the Hobbs Act contains no comparable special language upon which an analogous limiting construction can be focused. It does not at all differentiate between robberies which "in any way or degree obstruct[], delay[], or affect[] commerce or the movement of any article or commodity in commerce." Thus, driven by the above noted language in Stirone and Culbert, we conclude that to determine whether the Hobbs Act applies to these offenses we must examine the limits of the commerce power as articulated by the Supreme Court in Lopez and Morrison.

II. Lopez and Morrison applied to this Hobbs Act prosecution

In Lopez the Court "identified three broad categories of activity that Congress may regulate under its commerce power," namely:

"First, Congress may regulate the use of the channels of interstate commerce" (citing, inter alia, United States v. Darby, 312 U.S. 100, 657, 61 S.Ct. 451 at 457, 85 L.Ed. 609 (1941), sustaining statute prohibiting shipment in interstate commerce of goods produced for interstate commerce by employees whose wages and hours do not conform to the requirements of the Fair Labor Standards Act; statute not invalid even if its motive was to regulate local wages not otherwise subject to commerce power).

"Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities" (listing as examples "`destruction of an aircraft,'" "`thefts from interstate shipments,'" and Southern R. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911), upholding Safety Appliance Act equipment requirements as applied to cars of interstate carrier moving on interstate railroad line even though particular cars were carrying only intrastate traffic).

Third, "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce ... i.e. those activities that substantially affect interstate commerce....

Within this final category, admittedly, our case law has not been clear whether an activity must `affect' or `substantially affect' interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause.... We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity `substantially affects' interstate commerce." United States v. Lopez, 115 S.Ct. 1624 at 1629-30 (1995).

Lopez held unconstitutional, as beyond Congress's power under the Commerce Clause, the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q) (1988 ed., Supp. V). It "quickly disposed of" the first and second categories of congressional commerce power, noting that section 922(q) clearly fell within neither and that "if § 922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce." Id. at 1630. It then went on to hold that the statute likewise could not be sustained under the third category, rejecting the Government's argument that "possession of a firearm in a local school zone does indeed substantially affect interstate commerce." Id. at 1632.

Some five years later in Morrison the Court reconfirmed Lopez's Commerce Clause analysis and holding as well as its articulation and description of the "`three broad categories of activity that Congress may regulate under its commerce power.'" Morrison at 1749. Morrison held unconstitutional, as beyond Congress's power under the Commerce Clause, 42 U.S.C. § 13981, the civil action portion of the Violence Against Women Act of 1994.23 Morrison observes that "[p]etitioners do not contend that these cases fall within either of the first two categories of Commerce Clause regulation. They seek to sustain § 13981 as a regulation of activity that substantially affects interstate commerce.... [w]e agree that this is the proper inquiry." Id. at 1749. The Court held that section 13981 did not meet the requirements of the third Lopez category, stating "petitioners' reasoning would allow Congress to regulate any crime so long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption," Morrison at 1752-53, contrary to the constitutionally required "distinction between what is truly national and what is truly local." Id. at 1754.24

B. Lopez category one.

This category—"use of the channels of interstate commerce"—is clearly inapplicable to the present offenses, and the Government does not contend otherwise.

C. Lopez category two.

The Government contends that these offenses fall within Lopez category two because, according to the Government, the victim stores were engaged in interstate commerce, relying on United States v. Robertson, 514 U.S. 669, 115 S.Ct. 1732, 131 L.Ed.2d 714 (1995), and that therefore no "substantial" effect on interstate commerce had to be shown.

For several reasons, we reject the Government's contention that these are Lopez category two offenses. To begin with, simply because a business is engaged to any extent in interstate commerce does not alone suffice to bring regulation of any and all conduct involving it within category two. That category applies to "instrumentalities of interstate commerce," such as "an aircraft" or a railroad line, and to "persons or things in interstate commerce," such as "thefts from interstate shipments." Plainly, a local retail store is not analogous to any of those.25 The Government's argument would vastly expand Lopez's category two, extending federal jurisdiction on a per se, categorical basis to a broad range of matters such as shoplifting of a candy bar from any business engaged in interstate commerce or children scuffling in any such business's parking lot, and would also blur the distinction between categories two and three. Moreover, we note the Seventh Circuit's observation, rejecting the Government's attempts to fit a Hobbs Act prosecution into Lopez category two, that "[t]he Hobbs Act, however, falls within Lopez category three," at least where the conviction is sought to be sustained simply on the theory that the victim was engaged in interstate commerce. See United States v. Peterson, 236 F.3d 848, 856 (7th Cir.2001).26

Nor do we agree that the Government's argument is supported by Robertson. There the defendant was convicted of "various narcotics offenses" and of violating 18 U.S.C. § 1962(a) (RICO) "by investing the proceeds of those unlawful activities in the `acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.'" Id. at 1732. The Ninth Circuit, in a pre-Lopez decision, affirmed the narcotics convictions but reversed the RICO conviction, holding that the RICO enterprise —an Alaskan gold mine—was not shown to have "had more than an incidental effect on interstate commerce" and hence did not meet section 1962(a)'s "the activities of which affect, interstate ... commerce" requirement (without addressing the "engaged in ... interstate commerce" prong of section 1962(a)). United States v. Robertson, 15 F.3d 862, 868 (9th Cir.1994). The Ninth Circuit did not even mention, let alone discuss, the Commerce Clause or the limits of Congress's power thereunder. The Supreme Court, shortly after Lopez, reversed the Ninth Circuit's reversal of the RICO count, holding there was sufficient evidence that the gold mine was "engaged in ... interstate ... commerce" for purposes of section 1962(a). Robertson, 115 S.Ct. at 1733. It stated in this connection:

"... Robertson, who resided in Arizona, made a cash payment of $125,000 for placer gold mining claims near Fairbanks. He paid approximately $100,000 (in cash) for mining equipment and supplies, some of which were purchased in Los Angeles and transported to Alaska for use in the mine. Robertson also hired and paid the expenses for seven out-of-state employees to travel to Alaska to work in the mine.... He again hired a number of employees from outside Alaska to work in the mine.

...

Furthermore, Robertson, the mine's sole proprietor, took $30,000 worth of gold, or 15% of the mine's total output, with him out of the State.

Whether or not these activities met (and whether or not, to bring the gold mine within the `affecting commerce' provision of RICO, they would have to meet) the requirement of substantially affecting interstate commerce, they assuredly brought the gold mine within § 1962(a)'s alternative criterion of `any enterprise... engaged in ... interstate or foreign commerce.'" Id.

Robertson is a statutory construction case and does not purport to make any constitutional holding or to address (or recognize as being potentially before it) any constitutional issue, and it does not mention Lopez or discuss its three categories of Commerce Clause power.27

Finally, and in any event, we reject the underlying premise of the Government's argument in this connection, namely that the victim stores here were "engaged in" interstate commerce as the Robertson Court understood and intended that phrase. Robertson's principal illustrations of what is, and what is not, "engaged in [interstate] commerce" are as follows:

"the Government proved that some ... [equipment and supplies] were purchased in California and transported to Alaska for use in the mine's operations. Cf. United States v. American Building Maintenance Industries, 422 U.S. 271, 285, 95 S.Ct. 2150, 2159, 45 L.Ed.2d 177 (1975) (allegation that company had made local purchases of equipment and supplies that were merely manufactured out of state was insufficient to show that company was `engaged in commerce' within the meaning of § 7 of the Clayton Act).

...

As we said in American Building Maintenance, a corporation is generally `engaged "in commerce'" when it is itself `directly engaged in the production, distribution, or acquisition of goods and services in interstate commerce.' Id., at 283, 95 S.Ct., at 2158."

In American Building Maintenance the Court held summary judgment was properly granted that the Benton janitorial service companies, located in California, were not "engaged in [interstate] commerce," for purposes of section 7 of the Clayton Act, stating:

"The Benton companies performed a substantial portion [80% to 90%] of their janitorial services for enterprises which were themselves clearly engaged in selling products in interstate and international markets and in providing interstate communication facilities. But simply supplying localized services [in California] to a corporation engaged in interstate commerce does not satisfy the `in commerce' requirement of § 7. To be engaged `in commerce' within the meaning of § 7, a corporation must itself be directly engaged in the production, distribution, or acquisition of goods or services in interstate commerce.

...

Similarly, although the Benton companies used janitorial equipment and supplies manufactured in large part outside of California, they did not purchase them directly from suppliers located in other States. [citation] Rather, those products were purchased in intrastate transactions from local distributors.... By the time the Benton companies purchased their janitorial supplies, the flow of commerce had ceased. See Schechter Corp. v. United States, 295 U.S., at 542-543, 55 S.Ct. at 848." Id., 2158-59 (emphasis added; footnote omitted).

Here there is no evidence that any of these local retail stores made any sales other than at the store premises in Fort Worth or any sales to any person or entity engaged in interstate commerce, or had any operations, facilities or employees outside of Fort Worth; nor is there any evidence that any of them acquired any of their merchandise inventory other than from instate wholesalers.28 If the Benton companies were not "engaged in" interstate commerce, it necessarily follows, a fortiori, that these local retailers were not.

D. Lopez category three.

We accordingly conclude that the issue of whether the Hobbs Act is properly applied to these robberies turns on whether such application meets the test of Lopez category three, as to which "the proper test requires an analysis of whether the regulated activity `substantially affects' interstate commerce." Id. at 1630.

The evidence does not reflect any particular, concrete effect on interstate commerce that in fact actually resulted from any of the four robberies. But the evidence does support the conclusions that the victim stores each regularly used their funds to, among other things, purchase from local wholesalers inventory which included (but was not shown to be limited to) items manufactured out-of-state, and that the robberies reduced, by the amounts taken ($50, $100, $145, $1,500-2,000), the funds the stores would, but for the robbery, otherwise thereafter have had available for use in (or withdrawal from) their respective businesses, including (but not limited to) use for inventory purchasing. The evidence also shows that any reduction in a retailer's purchases from its wholesaler would reduce the funds the wholesaler would otherwise thereafter have had available for use in (or withdrawal from) its business, including (but not limited to) use for purchase of out-of-state merchandise. Cf. United States v. Atcheson, 94 F.3d 1237, 1243 (9th Cir.1996) ("To establish a de minimis effect on interstate commerce, the Government need not show that a defendant's acts actually affected interstate commerce ... Rather, the jurisdictional requirement is satisfied `by proof of a probable or potential impact'"). Assuming that all this suffices to show that each individual robbery did probably or potentially have some minimal, attenuated and indirect affect on interstate commerce, it is clear that none individually had what could fairly be described as a "substantial" affect (actual, probable or potential).

The Government in this connection relies on the "aggregation" principle under which in determining whether the affect on interstate commerce is "substantial" the focus is not upon any one individual instance of the activity covered by the regulation but is rather upon whether the aggregate of all covered instances as a whole substantially affects interstate commerce. The validity of that general principle has long been clearly established, and is recognized in both Lopez and Morrison. At the same time, however, each of those decisions holds that the principle is not of universal or unlimited application, and refused to apply it to sustain the statutes there under consideration. Thus, in Morrison the Court recognized that the aggregate of instances of gender-motive violence within the scope of section 13981 did ultimately have a large effect on interstate commerce, id. at 1752, but nevertheless held that the aggregation principle could not be applied, stating:

"We accordingly reject the argument that Congress may regulate non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local.... The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States." Id. at 1754.

The central question in this case, then, is whether this Hobbs Act prosecution can be sustained under the aggregation theory. We now turn to that question.

E. Hobbs Act jurisdictional element.

Because the Hobbs Act has an interstate commerce related jurisdictional element and the statutes at issue in Lopez and Morrison contained no comparable provision, as the Supreme Court's opinions in those cases emphasized, some of our sister circuits have relied on this distinction (among other considerations) in holding that Lopez and Morrison are either largely inapplicable to Hobbs Act cases, or do not require that a substantial effect on interstate commerce be shown in Hobbs Act prosecutions falling under Lopez category three.29 We respectfully disagree. Such an approach would in effect either create a fourth category of commerce clause power, contrary to the plainly comprehensive three category approach taken in Lopez and Morrison, or would do away with the "substantially affect" requirement which those opinions so clearly state is constitutionally mandated in category three cases. Congress lacks the power to provide for a lesser relation to interstate commerce in that category of case simply by including a jurisdictional provision. Otherwise the principles enunciated in Lopez and Morrison would be essentially meaningless. We agree with the Seventh Circuit's observations in this respect in United States v. Wilson, 73 F.3d 675, 685 (7th Cir.1995).30

This is not to say that the Hobbs Act jurisdictional element serves no function. It allows a determination in each case, based on its particular facts and characteristics, whether in that case application of the statute is consistent with Congress's Commerce Clause power. Because of that jurisdictional element the statute is not properly subject to being facially invalidated, which was essentially the result in Lopez and Morrison where the statutes involved lacked any jurisdictional element.

F. Regulation of commercial or economic activity.

Some of our sister circuits have held that the refusal of Lopez and Morrison to apply the aggregation principle to sustain the statutes there under consideration is wholly inapplicable to the Hobbs Act because those statutes proscribed offenses which were not commercial or economic while robbery (or extortion, but we here deal only with robbery), which the Hobbs Act proscribes, is a commercial or economic activity as it always involves taking "personal property" from another person. § 1951(b)(1). See United States v. Gray, 260 F.3d 1267, 1274 (11th Cir.2001) ("Unlike the statute at issue in Morrison, the Hobbs Act plainly and undeniably regulates economic activity"); United States v. Malone, 222 F.3d 1286, 1295 (10th Cir. 2000) ("Unlike the statutes at issue in Morrison and Lopez, the Hobbs Act regulates economic activity"). But see United States v. Peterson, 236 F.3d 848, 852 (7th Cir.2001) ("... the Hobbs Act does not suggest that robbery is an economic activity").

We respectfully take a somewhat different view of the matter.

The approach of these cases seems to be that whenever the regulated activity is "economic," then, for purposes of Lopez category three cases, there are never any limits whatever to use of the aggregation theory and it may always be employed to satisfy (and as practical matter will always satisfy) the "substantially" affects requirement of Lopez category three.31 While this would seem, at least as a practical matter, to limit Lopez category three to cases where the regulated activity was non-economic and to obliterate any distinction in "economic" cases between the Lopez categories, we need not and do not reach that issue.

Assuming, arguendo, that there is a class of category three cases as to which there are no restraints whatever on aggregation, we conclude that such a class would exclude instances where "the regulated activity" is not properly described as "commercial" or "economic" in the same general sense as "commercial."32

Lopez and Morrison each refer to both "commercial" and "economic" activities and appear to use the terms synonymously. Thus Lopez states that section 922(q) does not "regulate[] a commercial activity" id. at 1626 (quoted in Morrison id. 1750), and that

"Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce," id. at 1631 (emphasis added),

and that

"We do not doubt that Congress has authority under the Commerce Clause to regulate numerous commercial activities that substantially affect interstate commerce and also affect the educational process.... Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty." Id. at 1633 (emphasis added).

The last sentence above quoted is likewise quoted in Morrison. Id. at 1750. Justice Kennedy, in his concurring opinion in Lopez (joined in by Justice O'Connor and joining in Chief Justice Rehnquist's opinion for the Court) states:

"Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory." Id. at 1638 (emphasis added).

The above passage is likewise quoted with approval in Morrison. Id. at 1750.

And, since what we are concerned with is the power of Congress under the Commerce Clause—the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"—"commercial" rather than simply any broadly understood concept of "economic" seems to be the appropriate concept.

Robbery is the "activity" regulated by the Hobbs Act, and we conclude that for these purposes robbery cannot be considered a commercial activity. Robbery does have an economic effect. But so, too, do not only all thefts of any kind from any victim but also, for example, virtually all criminal homicides. Moreover, the here relevant portion of the Hobbs Act, apart from simply specifying that the accused have committed a "robbery" which "in any way or degree ... affects commerce" (although not requiring any intention to have or foreknowledge of such an effect), says nothing whatever about the identity, status or activity (whether as being engaged in any sort of commercial activity or otherwise) of either the victim or the robber, and does not purport to in any way regulate the conduct of any commercial activity. What is relevant in this connection under Lopez and Morrison is not the effects of the conduct which the statute proscribes but whether the statute may fairly be said to regulate commercial activity. The here relevant portion of the Hobbs Act cannot.

We recognize that some decisions have taken the view that "the Hobbs Act regulates the interference with economic activity by robbery," Peterson at 852, and for that reason alone an aggregation analysis is always per se appropriate and all that needs be shown is a depletion of assets. Id. ("what is aggregated is the depletion of the interstate entity's assets by robbery"). See also Gray at 1274 ("Economic activity, or more precisely the infliction of economic harm, is at the heart of the Hobbs Act's prohibition on robbery"). However, as noted, the here relevant portion of the Hobbs Act says nothing about the victim being an "interstate entity."33 And, we are aware of no Commerce Clause case in which the Supreme Court has applied the aggregation principle to a class of activities where contours of the class are not reasonably inferable from the language of the challenged statute or regulation. Moreover, the approach of allowing aggregation simply because of "the infliction of economic harm" (or the "depletion of ... assets") equally supports making a federal offense of any crime (say any criminal homicide or assault producing serious bodily injury) so long as it causes economic harm or depletes economic resources and hence in some way or degree affects interstate commerce—in the same sense as does a fifty dollar robbery or a fifty cent shoplifting from a victim (whether an individual or a local retailer) who purchases items made in another state-and so long as the aggregate effect of all such crimes on interstate commerce is substantial. Yet, Morrison rejects the notion that Congress may regulate a crime simply because "the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption." Id. at 1752-53. Lopez and Morrison reflect that such a limitation on the aggregation principle is necessary because "[t]he Constitution requires a distinction between what is truly national and what is truly local," and "[t]he regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States." Id. at 1754. Certainly, none of the instant robberies can be characterized as "directed at the instrumentalities, channels, or goods involved in interstate commerce."34 Further, the several decisions refusing to find the Hobbs Act applicable to most robberies of individuals under theories of deletion of assets and aggregation of the effect on interstate commerce of all such robberies likewise support our view in this respect.35 It has been said that this distinction is justified because "in general... businesses purchase on a larger scale than individuals." United States v. Boulahanis, 677 F.2d 586, 590 (7th Cir.1982). However, this justification is not persuasive because the here relevant portion of the Hobbs Act makes no distinction between the robberies it proscribes on the basis of whether the victim is a business (or is engaged in a commercial activity), and because virtually every consumer regularly expends considerable funds on the purchase of items originating out-of-state and there are many more consumers than businesses. Indeed, consumer spending is generally estimated to amount to two-thirds of the national economy. See also United States v. Thomas, 159 F.3d 296, 298 (7th Cir.1998) ("since the aggregate effect of such robberies [of individuals] on commerce is non-trivial, those cases are in tension with the ones ... which insist on aggregation"). Moreover, as previously noted, we are aware of no Supreme Court Commerce Clause decision applying the aggregation principle to a class of activities the contours of which are not reasonably inferable from the language of the challenged statute or regulation. Thus, the aggregation principle if applied to Hobbs Act prosecutions, would apply all robberies (of any personal property, from any victim, by any robber) which "in any way or degree ... affect[s] commerce."

We turn now to the appropriate standards to determine whether in such a case the applicable Lopez category three "substantially affects" requirement can be met by aggregating the effects of all such robberies.

As previously observed, the aggregation principle has relevance only in Lopez category three cases, cases that are concerned only with regulation of intrastate conduct. As to such regulation, Lopez's explicit requirement that the regulated intrastate conduct not merely affect interstate commerce but that it do so "substantially" is obviously designed to insure that congressional power under the Commerce Clause is not wholly without meaningful limits and does not obliterate the "distinction between what is truly national and what is truly local," id. at 1634, so as to transform to a unitary system of government the constitutionally established federal system under which, among other things, there is "no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims." Morrison at 1754. Yet if there are essentially no limits on use of the aggregation principle to satisfy the "substantially" requirement, then that requirement becomes virtually meaningless and wholly incapable of performing the function it is designed to serve, for the greater the breadth and generality of the regulatory net which Congress casts over intrastate conduct the more "substantial" will be the aggregated affect on interstate commerce of the total of all the intrastate conduct so regulated. Moreover, if the aggregation principle is applicable "the courts have no power `to excise, as trivial, individual instances' of the class" being aggregated. Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971) (quoting Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 2022, 20 L.Ed.2d 1020 (1968)).

Although the Supreme Court has on several occasions sustained federal statutes on the aggregation theory, it has never applied or even referred to it in a Hobbs Act case (nor is anything in the Hobbs Act legislative history supportive of such an approach). Nor since Lopez and Morrison has the Court made any general analysis or explanation of the contours of the doctrine.

In United States v. Robinson, 119 F.3d 1205 (5th Cir.1997), we rejected an as-applied challenge to a Hobbs Act conviction which urged that under Lopez the evidence was insufficient because it showed only that the charged robberies had some, but not a substantial, effect on interstate commerce.36 We rejected that contention, relying on the "aggregation principle" as reflected by cases such as Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964) and Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), held that "Lopez did not undermine this principle" and relied in that connection on the Tenth Circuit's decision in United States v. Bolton, 68 F.3d 396 (1995). Robinson, 1214-15.

Subsequently, in United States v. Hickman, 151 F.3d 446 (5th Cir.1998) (panel opinion), 179 F.3d 230 (5th Cir.1999) (en banc), we again addressed the requisite interstate commerce connection respecting Hobbs Act convictions for several robberies of retail establishments. The Hickman panel affirmed the convictions, considering itself bound by Robinson, but expressed "serious questions" as to the propriety of applying the aggregation principle in that setting.37 The en banc court noted that "[b]y means of an equally divided en banc court, we affirm the counts of conviction," but no opinion for affirmance was issued. Hickman, 179 F.3d 230. Half the judges comprising the en banc court joined in a dissenting opinion by Judge Higginbotham urging reversal on the basis that, particularly in light of Lopez, the aggregation principle was not properly applicable to those Hobbs Act prosecutions. Id.

Given the intervening decision in Morrison we revisit that issue and now express our essential agreement with the conclusions and underlying reasoning of Judge Higginbotham's Hickman opinion.38 As stated in that opinion:

"We would hold that substantial effects upon interstate commerce may not be achieved by aggregating diverse, separate individual instances of intrastate activity where there is no rational basis for finding sufficient connections among them. Of course, Congress may protect, enhance, or restrict some particular interstate economic market, such as those in wheat, credit, minority travel, abortion service, illegal drugs, and the like, and Congress may regulate intrastate activity as part of a broader scheme. The Hobbs Act is not a regulation of any relevant interstate economic market, nor are there other rational connections among nationwide robberies that would entitle Congress to make federal crimes of them all.

The Hobbs Act does not target any class of product, process, or market, or indeed even commercial victims. It facially applies to any robbery, or its attempt, of any person or entity.... The Hobbs Act offers no `regulatory scheme' which `could be undercut' if individual robberies were not aggregated.... Thus, putting aside robberies as part of an effort to regulate particular interstate markets such as guns, drugs, or organized crime syndicates, a local robbery spree can be within Congress's power only if it by itself has a substantial effect." Id. at 231.

...

"Where Congress has sought to regulate —protect, enhance, or restrict— some particular market such as wheat, credit, minority travel, or abortion service, it has pointed the way to a rational aggregation test. It has identified those things that affect that market, things which if not all subject to the regulation would erode the effort. Intrastate production and sales can be aggregated, because the prices of goods and services are determined in interstate markets. If, for example, the federal government enacts a price control to ensure sufficient income for producers, it will be thwarted if consumers switch to buying goods in intrastate commerce or produce the goods themselves. Because the instances of economic activity are intimately connected and in the aggregate substantially affect commerce, Congress can regulate such activity." Id. at 233.

We also observe that not only does the Hobbs Act "not target any class of product, process or market or even commercial victims," but it has also been held to apply to robbery (or extortion) which adversely affects illegal commerce39 as well as to that which beneficially affects commerce.40

The analysis in the Hickman en banc dissent fully comports with the following crucial passage in Lopez explaining the Court's refusal to sustain 18 U.S.C. § 922(q) under an aggregation theory, viz:

"Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Id. at 1631 (emphasis added).

Where the Supreme Court has applied aggregation to uphold federal regulation of intrastate conduct against constitutional challenge under the Commerce Clause, there has always been a rational basis to find sufficient interrelationship or commonality of effect on interstate commerce among the discrete intrastate instances regulated and between them and a scheme of regulation (protection, enhancement or restriction) of some particular interstate market or activity such that the regulation of those intrastate activities can rationally be viewed as necessary to the effectiveness of or a meaningfully supporting part of the scheme of regulation of that particular interstate activity or market.

We now turn to the most frequently cited of these cases.

Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), involved a farmer who "owned and operated a small farm ... maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs" and raising "a small acreage of winter wheat." Id. at 84. He sold part of the wheat, fed part to his poultry and cattle, some of which were sold, used some for seeding and some in making flour for home consumption. In the year in question his wheat "available for marketing" quota under the Agricultural Adjustment Act of 1938 as amended was 11.1 acres but he harvested and threshed 23 acres and was penalized 49 cents a bushel on the 239 bushels harvested and threshed from the 11.9 acres of excess acreage. Id. at 83, 84, 86.41 The Court assumed that this excess was consumed on the farm, but nevertheless, and despite the comparatively minimal quantity, sustained the penalty as against Commerce Clause challenge, stating, inter alia,

"The effect of consumption of homegrown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop.

...

One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.... Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

...

Control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply." Id. at 90-91 (emphasis added).

We note that Lopez describes Wickard as "perhaps the most far reaching example of Commerce Clause authority over intrastate commerce." Lopez at 1630. Clearly, however, the factors that brought Wickard under the aggregation principle are absent in the present character of prosecution. In Wickard market forces related the effect of the individual instances of regulated intrastate conduct to each other and to the scheme of regulation of the particular interstate market, namely sustaining the price at which wheat was sold in interstate commerce; moreover, the diverse instances of regulated intrastate conduct in Wickard each had a similar effect on the regulatory scheme, that is each had the same tendency to affect the interstate price of wheat in the same way.

Likewise, in United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942), the Court upheld a regulation prescribing the minimum price to be paid producers for all milk marketed in the Chicago area, approximately forty percent of which came from out-of-state, rejecting the contention that the regulations could not under the Commerce Clause be applied to a local milk marketer all of whose business was entirely intrastate. The Court explained:

"... the marketing of intrastate milk which competes with that shipped interstate would tend seriously to break down price regulation of the latter.

...

We conclude that the national power to regulate the price of milk moving interstate into the Chicago, Illinois, marketing area, extends to such control over intrastate transactions there as is necessary and appropriate to make the regulation of the interstate commerce effective; and that it includes authority to make like regulations for the marketing of intrastate milk whose sale and competition with the interstate milk affects its price structure so as in turn to affect adversely the Congressional regulation." Id. at 527.

The decisions in Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), and Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964), sustained under the Commerce Clause the public accommodation provisions of Title II of the Civil Rights Act of 1964 applicable to hotels and restaurants respectively. In doing so the Court in each case pointed to the overwhelming evidence before Congress in its consideration of the legislation that racial discrimination by hotels and restaurants impeded minority interstate travel. In Heart of Atlanta the Court noted that the Committee Reports and testimony before Congress reflected that:

"[O]ur people have become increasingly mobile with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight, ... and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook ... that this uncertainty [of the Negro traveler finding lodging] stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community. This was the conclusion not only of the Under Secretary of Commerce but also of the Administrator of the Federal Aviation Agency who wrote the Chairman of the Senate Commerce Committee that it was his `belief that air commerce is adversely affected by the denial to a substantial segment of the traveling public of adequate and desegregated public accommodations.' ... We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel." Id. at 355 (emphasis added).42

The Court went on to hold that interstate travel was interstate commerce under the Commerce Clause and that accordingly Congress's commerce power embraced the power to remove the impediment to interstate travel posed by race based refusal to serve hotel customers. Id. at 355-360. McClung similarly placed great emphasis on the same consideration, id. at 381-82,43 and goes on to hold that the fact that one restaurant's activities may have but a de minimus effect on interstate commerce was not significant, relying on Wickard. McClung at 382.

In Heart of Atlanta and McClung the discrete local activities regulated—the race based refusal of diverse hotels and restaurants to serve minority customers—each had a similar effect on a particular interstate market or activity, namely impeding minority interstate travel, an obstruction to interstate commerce which the statute was designed to remove.

Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968),44 rejected Commerce Clause challenges to the 1961 amendments to the Fair Labor Standards Act adopting the "enterprise concept" extending coverage to include not only employees personally engaged in interstate commerce or in the production of goods for interstate commerce, but also all those employed by "an enterprise" engaged in interstate commerce or in the production of goods for interstate commerce. The Court noted that in the original act Congress had found that "substandard wages and excessive hours, when imposed on employees of a company shipping goods into other States, gave the exporting company an advantage over companies in the importing States" and that this had the "undesirable effect of driving down labor conditions in the importing States." Id. at 2020.45 The Court went on to state:

"When a company does an interstate business, its competition with companies elsewhere is affected by all its significant labor costs, not merely by the wages and hours of those employees who have physical contact with the goods in question." Id. at 2021.

Wirtz also noted that Congress had found that substandard labor conditions tended to labor disputes and strikes, "that when such strife disrupted businesses involved in interstate commerce, the flow of goods in commerce was itself affected," id. at 2021, and that this applied equally to substandard labor conditions of all employees of an enterprise engaged in commerce, not merely those personally so engaged. Id. at 2021-22. Wirtz goes on to state that under the Commerce Clause courts could not "excise, as trivial, individual instances falling within a rationally defined class of activities," citing Wickard. Wirtz at 2022.

The intrastate activities regulated in Wirtz (wages of employees of an enterprise engaged in interstate commerce or in the production of goods for or acquisition of goods directly in interstate commerce even where the employee personally was not so engaged) were by market forces interrelated and related to interstate commerce and to the regulated interstate market in wages. Moreover, each of those intrastate activities had the same character of effect on the statutory scheme of regulation—as each proscribed substandard wage tended, by market forces, to lower wages generally and to foster industrial discord, contrary to and tending to undermine the statutory scheme for maintaining wages of employees of enterprises engaged in interstate commerce (or the production of goods for or acquisition of goods directly in interstate commerce) and avoiding the disruption of interstate commerce incident to industrial strife resulting from substandard wages.

In Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), the Court sustained Perez's conviction for making an extortionate extension of credit contrary to the provisions of Title II of the Consumer Credit Protection Act of 1968, rejecting the contention that the statute was unconstitutional as not requiring proof that the particular transaction affected interstate commerce. The Court observed that "[p]etitioner is one of the species commonly known as `loan sharks' which Congress found are in large part under the control of `organized crime,'" citing congressional findings under Title II that "[o]rganized crime is interstate and international in character," that "[a] substantial part of the income of organized crime is generated by extortionate credit transactions," and that "[e]xtortionate credit transactions are carried on to a considerable extent in interstate and foreign commerce and through the means and instrumentalities of such commerce" and "[e]ven where ... purely intrastate in character... directly affect interstate and foreign commerce." Id. at 1358 & n. 1. It also noted evidence before Congress that loan sharking was "the second largest source of revenue for organized crime" and is "controlled by organized criminal syndicates," that "through loan sharking the organized underworld has obtained control of legitimate businesses, including securities brokerages and banks," id. at 1362, and concluded by stating that "loan sharking in its national setting is one way organized interstate crime ... syphons funds from numerous localities to finance its national operations." Id. at 1362-63.

The Court likewise noted that "[t]here was ample evidence showing petitioner was a `loan shark' who used the threat of violence as a method of collection," id. at 1358, and "[i]n the setting of the present case there is a tie-in between local loan sharks and interstate crime." Id. at 1367.46

In upholding the conviction the Perez Court relied on Wickard, Wrightwood Dairy Co., Heart of Atlanta, McClung, and Wirtz for the principle that the class of activities is the proper measure of the required relationship to interstate commerce and that courts would not "`excise, as trivial, individual instances' of the class." Perez at 1360-61.

Plainly, Perez dealt with a national market in credit, in which individual instances interact with each other by virtue of market forces. More significantly, perhaps, it dealt with a statute attempting to regulate a particular interstate activity, that of "organized interstate crime," which was financed by the both local and interstate loan sharking which it controlled. Id. at 1362-63.47 Moreover, Perez also relied on the principle that "`when it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so'" (quoting Westfall v. United States, 274 U.S. 256, 47 S.Ct. 629, 71 L.Ed. 1036 (1927)), and then observed "in the present case there is a tie-in between local loan sharks and interstate crime." Id. at 1362. This would appear to invoke the rule that where the same kind of trafficking is carried on both interstate and intrastate Congress in preventing the interstate trafficking may also proscribe the intrastate trafficking where, as a practical matter (for reasons such as the fungibility of the particular commodities or the like), it is necessary to regulate the intrastate trafficking in order to effectively regulate the interstate trafficking. See, e.g., United States v. Lopez, 459 F.2d 949, 951-53 (5th Cir.1972).48

The present case does not involve the targeting of any particular interstate market or activity, and it is evident that the proscription of robberies which do not have the requisite effect on interstate commerce is in no sense necessary to effective regulation of those that do.

We finally turn in this connection to Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (Hodel v. Virginia) and Hodel v. Indiana, 452 U.S. 314, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981), in each of which the Court rejected Commerce Clause challenges by various coal producers to certain provisions of the Surface Mining and Reclamation Control Act of 1977. The challenged provisions constituted a complex regulatory scheme governing surface coal mining operations, requiring, among other things, land restoration, use of dams, spoil disposal and the like. The Court noted congressional findings that surface mining adversely affects interstate commerce by, inter alia, destroying the utility of land for commercial, industrial, agricultural, forestry and other purposes, causing erosion and contributing to flooding, polluting water and otherwise. Hodel v. Virginia at 2361. The Court observed that "coal is a commodity that moves in interstate commerce. Here Congress rationally determined that regulation of surface coal mining is necessary to protect interstate commerce from adverse effects that may result from that activity" and that "the power conferred by the Commerce Clause [is] broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one state." Id. at 2363. Hodel v. Indiana focused on the prime farmland provisions of the Act, holding that "Congress had a rational basis for finding that surface coal mining on prime farmland affects interstate commerce in agricultural products." Id. at 2384. Both decisions note that federal standards were appropriate to insure that the forces of interstate competition in the coal industry would not undermine the maintenance of adequate standards. Thus Hodel v. Virginia states:

"the Act responds to a congressional finding that nationwide `surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders.' ... The prevention of this sort of destructive interstate competition is a traditional role for congressional action under the Commerce Clause." Id. at 2363.