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An Expansive Vision of Federal Criminal Law

The founders sought to create a federal government of limited, enumerated powers. The states, by contrast, where originally conceived is having police powers – the power to essentially enforce common criminal laws, to take one example.

The original conception of the federal government was at once principled and practical. It was principled in the sense that various founders – mostly the anti-federalists – were fearful of a federal government with vast powers that could dictate to individuals how to live their lives. It was also practical because the colonies – the original 13 states – were individual political entities, and pre-dated the federal government.

It’s hard to imagine today that various states had much power, but in the 1770s and 1780s as the country was being pieced together, the states were the primary centers of political life. The states were jealous of their powers, and at least initially created a fairly weak federal government in the form of the Articles of Confederation and later a much more powerful federal government under the Constitution.

Nonetheless, the federal government was far less powerful than it is today by design. In the past 200 years, the federal government’s power has grown enormously, primarily through three constitutional tools – the fourteenth amendment and the commerce clause and the taxing clause. In addition, certain provisions have essentially become nullities – including the 9th and 10th amendments.

Most of the debates over the power of the federal government are focused on questions of whether Washington has the power to enact this or that large government program. THe most recent example was the Supreme Court case involving the Affordable Care Act (also known as Obamacare). Political liberals tend to be in favor of these sorts of programs; political conservatives tend to be opposed.

But the federal government’s power matters more concretely in issues of criminal law. In in these debates, political conservatives tend to support an expansive police state, involving harsh enforcement of federal drug laws and federal criminal laws.

In the 1980s, prompted by the Reagan Administration’s doubling-down on the drug war and by anxiety over the “crack” epidemic, Congress enacted harsh drug sentencing regimes that to this day mean that the federal government imprisons more people than any other state, and imprisons more people than most other countries.

The federal government is also always in search of creative – some would say questionable – ways of arrogating to itself police powers.

Criminal laws enforced by the federal government must have some interstate nexus. The Hobbs Act, passed in the 1950s, for makes it a federal crime to commit a robbery. For the most part, common robberies are enforced by the State government, such as North Carolina. But if a federal official wants to prosecute a run-of-the-mill robbery, he or she merely needs to identify an interstate nexus – perhaps the store that was robbed was selling goods shipped in from another state. Perhaps the firearm that was used was manufactured outside of the state.

Whatever tenuous link is made will usually support a federal prosecution of what is essentially a garden variety local crime.

The Supreme Court has only rarely set limits on the federal government’s power to prosecute these crimes. For instance, in Scheidler v. NOW, the Supreme Court said that free standing violence was not sufficiently connected to interstate commerce such that it was contemplated by the Hobbs Act.

Still, the Federal Government seeks to prosecute free-standing violence. For instance, read about How the Justice Department Transformed an Amish Feud Into a Federal Hate Crime.

The government also had to cite an “interstate nexus” to justify federal prosecution. You might think that would be a challenge, since all of these crimes occurred within a single state. But hey, look, Dettelbach says: The “Wahl battery-operated hair clippers” used in the assaults “were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware.” The defendants also used “a pair of 8” horse mane shears which were manufactured in the State of New York and sent via private, interstate postal carrier to [a retailer] in Ohio for resale.” They took pictures of their victims with “a Fuji disposable camera from Walmart” that “travelled in and affected interstate commerce in that it was manufactured in Greenwood, South Carolina.” They used “an instrumentality of interstate commerce” (i.e., a highway) to reach victims in Trumbull County, Ohio. (They never actually left the state, but they could have.) The indictment also mentions a letter (carried by the U.S. Postal Service!) that was used to lure one of the victims. An embarrassment of interstate nexuses, in more ways than one.



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