Last edited Wed Nov 21, 2018, 08:41 AM - Edit history (2)
The post to which you are asking that question IS the relevant section of the Matthew Shepard Act.
A Wikipedia summary is not a reliable guide to what any law specifically requires.
When Congress passes laws, they are often given descriptive names of some kind. A law that has been passed by Congress and signed by the president is called a "public law". Each public law is given a number of the form XXX-YYY where "XXX" is the number of the Congress that passed it, and "YYY" is the sequential number of the law.
When a public law adds or amends a particular statute of the US Code, then most compendia of the US Code will include a helpful notation which tells you the last time that section was added or amended.
Looking at the bottom of Velveteen's link to 18 USC 249 (Section 249 of Title 18 of the US Code), you will see this:
(Added and amended Pub. L. 111–84, div. E, §§ 4707(a), 4711, Oct. 28, 2009, 123 Stat. 2838, 2842.)
What that tells you is that 18 USC 249 was added and amended by Public Law 111-84, i.e. the 84th law passed by the 111th Congress. In fact, it tells you that it was division E of that law.
Public Law 111-84 was the National Defense Re-Authorization Act, into which a bunch of other acts were rolled into a single package. The entirety of Pub. L. 111-84 is here:
https://www.gpo.gov/fdsys/pkg/PLAW-111publ84/html/PLAW-111publ84.htm
(a) Divisions.--This Act is organized into five divisions as
follows:
(1) Division A--Department of Defense Authorizations.
(2) Division B--Military Construction Authorizations.
(3) Division C--Department of Energy National Security
Authorizations and Other Authorizations.
(4) Division D--Funding tables.
(5) Division E--Matthew Shepard and James Byrd, Jr. Hate
Crimes Prevention Act
So, what you are looking at, and which Velveteen Ocelot posted is the relevant part of the Matthew Shepard Act, and it says so right on the page, once you know how to decode the notation, which actually packs a wealth of information.
While it did loosen up the ambit of federal hate crimes, there still needs to be a connection to interstate travel or interstate commerce. If you do bother to scroll down to the actual Act itself, you'll find that Congress will often put in a set of "findings" - statements which answer the question "why is this appropriate within the limited legislative power of Congress?".
In recent decades, Congress has passed a variety of what are essentially feel-good laws on topics which people get excited about, because people really don't get that the federal government doesn't have the ability to criminalize anything that people might think is bad, for whatever reason. So, for example, if people get excited about some atrocious thing, like the odious practice of flaculationism, someone will say "Hey, there's no federal law against it." Not wanting to be soft on flaculationism, Congress will pass a law against it.
The problem is that if flaculationism is not inherently an activity that affects interstate commerce or any of the other handful of things about which Congress can actually legislate (in addition to whatever additional implied legislative power is related to doing that handful of things recited in Article I), then what they will typically do is to add a qualifier along the lines of "involving interstate travel or an instrumentality of interstate commerce" somewhere in there.
After this, Congress will triumphantly announce that they've outlawed flaculationism. Never mind that in order to actually fall under that law, you have to do it on an Amtrak train, and that flaculators in the privacy of their own homes will not be reachable under it.
This is the precise reason why a piece of the Violence Against Women Act was struck down:
https://en.wikipedia.org/wiki/Violence_Against_Women_Act
In the 2000 Supreme Court case United States v. Morrison, a sharply divided Court struck down the VAWA provision allowing women the right to sue their attackers in federal court. By a 5–4 majority, the Court overturned the provision as exceeding the federal government's powers under the Commerce Clause.
Federal laws against "bad stuff people do" are always subject to this sort of challenge when the "bad stuff" doesn't closely relate to one of the enumerated powers of Congress, and some kind of long chain of explanation is needed to tie the statute to one of those powers. Obviously, the specific outcome on any particular one is debatable (as the 5-4 decision indicates), but the overall point is that these sorts of crimes - involving what is called the "police power" over physical crimes against a person - are generally considered to be the province of state criminal law, and not federal criminal law, so there is always going to be this kind of challenge. That is particularly true where, as here, the federal criminal law is being taken out for its "first spin" so to speak.
And that's another thing to note about federal "feel good" legislation. The federal FGM law has been around since 1996. This case in Michigan is actually the FIRST TIME any federal prosecutor has attempted to charge anyone under it. So, it's a given that there will be a Constitutional challenge to it, because despite how long it has been on the books, it has never actually resulted in the prosecution of anyone. I would venture to guess there is a reason for that, since it's not as if the question of "can Congress do that?" is an obscure or impertinent question to ask when you see a federal law that criminalizes something that does not have any obvious connection to interstate commerce or federal activities.
Might it be reversed on appeal? Sure. But if one's job is to put people behind bars for stuff, then one tends to shy away from using laws which "may" survive an appeal. A federal prosecutor has finite resources.
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