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Click here for the full text of this decision FACTS:In United States v. Bird (Bird I) this court held that the Freedom of Access to Clinic Entrances Act is a valid exercise of Congress’ authority under the commerce clause. 124 F.3d 667 (5th Cir. 1997). The district court in the present case held that under United States v. Morrison, 529 U.S. 598 (2000), “passage of [the FACE Act] was beyond Congress’ Commerce Clause authority.” HOLDING:Vacated and remanded. The court does not find that the Supreme Court’s decision in Morrison materially affects the holding in Bird I. The decision in Bird I case is therefore binding. OPINION:Garza, J.; Garza, DeMoss and Stewart, JJ. DISSENT:DeMoss, J. “FACE, as interpreted now in light of Morrison, represents another effort by Congress to dismantle the federalist foundation upon which this country was designed to function. The regulation of purely intrastate, non-economic, noncommercial criminal activity that is not essential to a broader regulatory scheme surely cannot be within Congress’s purview. To uphold the constitutionality of this statute in the face of the teachings provided by Lopez and Morrison not only ignores the precedents established by both of these decisions, but also essentially grants to Congress the unfettered authority to govern in areas the Framers contemplated would be regulated only by the states. Because I believe the Constitution and the Supreme Court disallow the result reached by the majority’s holding, I respectfully dissent.”

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