Responding to the Barry Bonds‐Jason Giambi steroid scandal, Senator John McCain (R.-AZ) recently threatened to bring the federal hammer down on Major League Baseball: “Major‐league baseball players and owners should meet immediately to enact the standards that apply to the minor leagues, and if they don’t, I will have to introduce legislation that says professional sports will have minimum standards for testing,” McCain said on December 3. (Up next, perhaps, legislation to revoke the American League’s designated hitter rule.)
The week before McCain issued his threat, the Justice Department fought in the Supreme Court to maintain the right to jail sick people taking marijuana on the advice of their doctors and with the approval of their state government. On November 29, the Supreme Court heard oral argument in Ashcroft v. Raich, a case involving two desperately ill women who use marijuana and seek protection from prosecution under federal drug laws. Acting solicitor general Paul Clement told the Court that medicine grown in one’s own backyard for home consumption was a national matter, subject to Congress’s power to regulate interstate commerce — despite the fact that there is nothing remotely commercial or interstate about the conduct at issue.
Those are just two recent examples of a federal government that views its jurisdiction as limitless. That’s a view quite at odds with the one held by the Constitution’s Framers. The document they drafted envisioned a federal government focused on national issues, such as “war, peace, negotiation, and foreign commerce,” in Madison’s words. Even the most devoted advocate of national power, Alexander Hamilton, agreed, explaining in Federalist 17 that under the Constitution, “the ordinary administration of criminal and civil justice” would be left to the states.
We’ve drifted far from that understanding. Congress’s power to “regulate Commerce… among the states,” which was designed to eliminate state‐level trade barriers, has become a limitless font of federal power, used to regulate or criminalize behavior better left to the states or the civil law.
With commerce clause limits eviscerated, almost anything can be a federal crime. We’ve gone from a Constitution that mentions only three federal crimes (treason, piracy, and counterfeiting) to a federal criminal code with over 4,000 separate offenses, some of them stunningly trivial. In 2002, President Bush signed legislation making it a federal crime to move birds across state lines to engage in fights. The ban on cockfighting joined such notable federal crimes as interstate transport of unlicensed dentures (punishable by up to a year in prison), tampering with an odometer (up to three years), and pretending to be a member of the 4-H Club (up to six months). These and other offenses larded throughout the U.S. code could make for an interesting conversation with one’s cellmate: “What are you in for, kid?”
But out‐of‐control federalization is only rarely amusing. It brings serious costs. In addition to the trivial crimes mentioned above, Congress has federalized a host of ordinary street crimes already covered by state criminal codes, crimes like arson, carjacking, and gun possession by felons. Shunting these cases into federal court causes huge delays to civil litigants and unsustainable pressure on the federal courts. Chief Justice Rehnquist has characterized the result as “a crisis in workload.” Forcing the federal courts to handle workaday criminal matters crowds out civil suits and leads to huge delays for civil litigants because criminal defendants have a constitutional right to a speedy trial and everyone else has to wait in line.
Moreover, a federal government focused on everything from cockfighting to steroid use is a federal government that’s not focused on truly national issues. Case in point: In the months leading up to the September 11 attacks the FBI was engaged in an 18‐month‐long sting operation at a brothel in New Orleans that netted 12 prostitutes. September 11 should have concentrated the mind wonderfully as to proper federal priorities, yet federal law enforcement to this day continues to behave like the local vice squad.
But the most important costs of overfederalization are the costs to the rule of law. A federal criminal code that covers everything essentially delegates to prosecutors and police the power to pick targets they think they should get rather than offenses that need to be prosecuted — leaving everyone at risk. That is unacceptable in a country that still considers itself a government of laws and not of men. It’s well past time we rediscovered the wisdom of constitutional limits.