CRS Reports & Analysis Legal Sidebar When Are Violent Crimes Federal Hate Crimes? 06/14/2016

“The shooting at a gay nightclub in Orlando has generated interest in the scope of the federal hate crime statute, 18 U.S.C. 249, enacted in 2009. Section 249 establishes two distinct federal crimes. Section 249(a)(1) outlaws violence committed because of the actual or perceived race, color,religion, or national origin of the victim. Section 249(a)(2) outlaws violence committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of the victim. Section 249(a)(2) applies only if the crime somehow involves commerce or was committed within federal territorial or maritime jurisdiction. Section 249(a)(1) has no such limitation. The difference is attributable to the nature of Congress’s legislative powers. Congress enjoys only such legislative authority as may be traced to the Constitution. Section 249(a)(1) builds on Congress’s power to implement the Thirteenth Amendment, which abolished slavery and seeks to eliminate the “badges and incidents of slavery.” Section 249(a)(2) is grounded in Congress’s constitutional authority to pass laws necessary and proper to regulate commerce among the states and to regulate conduct in federal territories and aboard certain ships. The few cases to consider the issue in the statute’s short life have concluded that section 249(a)(1) constitutes a valid exercise of Congress’s authority under the Thirteenth Amendment and that section 249(a)(2) falls within Congress’s authority to regulate interstate and foreign commerce…”