July 28, 2007
THOUGHTS ON FEDERALISM FROM FRED THOMPSON: And I certainly agree with this bit:
Law enforcement in general is a matter on which Congress has been very active in recent years, not always to good effect and usually at the expense of state authority. When I served as a federal prosecutor, there were not all that many federal crimes, and most of those involved federal interests. Since the 1980’s, however, Congress has aggressively federalized all sorts of crimes that the states have traditionally prosecuted and punished. While these federal laws allow Members of Congress to tell the voters how tough they are on crime, there are few good reasons why most of them are necessary.
For example, it is a specific federal crime to use the symbol of 4-H Clubs with the intent to defraud. And don’t even think about using the Swiss Confederation’s coat of arms for commercial purposes. That’s a federal offense, too.
Groups as diverse as the American Bar Association and the Heritage Foundation have reported that there are more than three thousand, five hundred distinct federal crimes and more than 10,000 administrative regulations scattered over 50 section of the U.S. code that runs at more than 27,000 pages. More than 40 percent of these regulatory criminal laws have been enacted since 1973.
I held hearings on the over-federalization of criminal law when I was in the Senate. You hear that the states are not doing a good job at prosecuting certain crimes, that their sentencing laws are not tough enough, that it’s too easy to make bail in state court. If these are true, why allow those responsible in the states to shirk that responsibility by having the federal government make up for the shortcomings in state law? Accountability gets displaced.
But read the whole thing. And I have some related thoughts on federalism, special interests, and accountability here.
Also, Mark Tapscott has some further observations on Thompson's essay.
UPDATE: Ilya Somin comments: "I fully agree with Thompson's view here. . . . However, there is a major elephant in this federalism room that Thompson doesn't mention. He is right to note the massive growth in the federal prison population over the last 20 years, but fails to point out that most of that growth is due to the War on Drugs. As I explained here, convicts incarcerated for nonviolent drug offenses represent 55% of the total federal prison population. And it was the War on Drugs that led to the Supreme Court's 2005 decision in Gonzales v. Raich, which largely gutted constitutional limits on federal power." True. Read the whole thing.