Washington's Biggest Crime Problem

The federal government's ever-expanding criminal code is an affront to justice and the Constitution.


Michael Paul Mahoney was convicted of selling methamphetamine in 1980 and served 22 months in a Texas prison. Upon his release, he went straight, opening a pool hall in Jackson, Tennessee. After closing up each night, he would deposit the day's receipts at the bank, carrying a small .22-caliber pistol for protection.

In 1992, after the pistol was stolen, Mahoney bought a new one at a pawnshop, filling out the required paperwork. After the Bureau of Alcohol, Tobacco, and Firearms investigated the purchase, the U.S. Attorney's Office in western Tennessee charged him with violating a federal law that bars "career criminals" from owning a gun. (He qualified as a career criminal because he had sold methamphetamine to an undercover officer three times.) Although the judge at Mahoney's trial protested that it was pointless to pursue such a case against a now-law-abiding citizen, federal sentencing rules tied his hands. Mahoney, who was 39 when he was convicted in 1993, received a 15-year sentence. By contrast, people convicted under Tennessee's law prohibiting gun ownership by felons (which did not apply to Mahoney, since his drug conviction was more than 10 years old) can receive sentences of less than a year.

In 2000 Memphis business owner Logan Young, who had been a close friend of the legendary University of Alabama football coach Paul "Bear" Bryant, was accused of paying some $150,000 to two Memphis high school coaches in an attempt to steer a prize recruit to Alabama.

The National Collegiate Athletic Association investigated the charges and placed Alabama's football team on probation for two years. Young arguably could have been charged with violating a Tennessee law that forbids bribes to "public servants," a crime that carries a penalty of three to six years in prison. But then prosecutors would have had to prove that he actually bribed the coaches, a charge he hotly denies.

Instead he was indicted last fall on three federal charges derived from the alleged bribery: conspiring with the coaches; aiding and abetting travel across state lines "with the intent to further unlawful activity"; and trying to conceal the alleged payments by withdrawing the money in amounts of less than $10,000, the threshold for a currency transaction report to the Internal Revenue Service. Each count carries a five-year prison term.

In 1996 Edward Hanousek Jr., a road master for a railroad company running between Alaska and Canada, was convicted of negligently discharging a harmful quantity of oil into the Skagway River, a U.S. waterway, in violation of the Clean Water Act. An independent contractor had accidentally ruptured a pipeline while attempting to clear rocks off the tracks. Hanousek was off duty and at home that day, nowhere near the accident site, and he had no knowledge of the pipeline rupture until after the fact. The government nevertheless prosecuted Hanousek, a federal jury convicted him, and he received a sentence of six months in prison, six months in a halfway house, six months of post-release supervision, and a $5,000 fine.

These are just three of the many cases that illustrate how federal criminal law has overstepped its proper bounds, prescribing draconian punishments for offenses that should be handled at the state level or that should not be considered crimes at all. During the last century, especially in the last three decades and in the aftermath of the September 11 attacks, Congress has made federal crimes out of an astonishing array of behavior, much of which is already prohibited by state law, could be better addressed with civil penalties, or is considered wrongful not because it violates anyone's rights but only because Congress says so.

When Congress creates a federal penalty for actions traditionally prosecuted at the state level, it violates the core constitutional principle of federalism, which prohibits Congress from legislating on local matters. Such laws also burden the federal court system, promote selective prosecutions, and stack the deck against defendants. In addition to duplicating state law, Congress has created derivative offenses, such as racketeering and mail fraud, an approach that makes convictions easier to obtain because the offense consists mainly of otherwise innocuous behavior. In Logan Young's case, for example, the government does not have to prove bribery. For two of the counts against him, all it has to prove is that he crossed state lines and withdrew money from his bank account in pursuit of his alleged bribery scheme. The actions are not in dispute, and it is relatively easy for a jury to infer criminal intent.

Getting even further from the essence of criminal behavior, many federal laws impose criminal sanctions for so-called public welfare offenses. These laws often do not require a "guilty mind," or mens rea, which historically has been an essential element in common law crimes. Indeed, public welfare "crimes," such as violations of environmental regulations or insider trading laws, need not involve even unintentional harm to third parties. The overreaching of federal criminal law is especially troubling because institutional and procedural features of the federal system invite prosecutorial abuses, make convictions easier to obtain than in state systems, impose harsh mandatory sentences even for nonviolent acts, and result in disparate treatment of similarly situated defendants.

Uncountable Crimes

The trend toward federalization of crime (and criminalization of everything) has prominent critics. In 1998 Chief Justice William H. Rehnquist warned: "The number of cases brought to the federal courts is one of the most serious problems facing them today….Over the last decade, Congress has contributed significantly to the rising case-load by continuing to federalize crimes already covered by state laws….The trend to federalize crimes that traditionally have been handled in state courts not only is taxing the judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system." Supreme Court Justices David Souter and Anthony Kennedy also have cautioned Congress against turning the federal courts into general police courts.

In an October 2003 column published on Townhall.com, Rebecca Hagelin, vice president of the Heritage Foundation, noted: "America started out with three federal laws—treason, counterfeiting and piracy. In 1998, the American Bar Association counted more than 3,300 separate federal criminal offenses on the books—more than 40 percent of which had been enacted in just the past 30 years. These new laws cover more than 50 titles of the U.S. Code and encompass more than 27,000 pages. Today, the Congressional Research Service says it no longer can even say how many federal crimes exist." She continued: "Are we that much more evil than we were 200 years ago that we need this many laws to keep us off of each other? Or has the nanny state veered completely out of control—creating crimes where no evil existed, pinning blame where no harm was intended?"

The first significant expansion of the federal criminal code occurred in the late 19th century, when Congress established penalties for "misuse" of the U.S. mail system and passed antitrust laws. By 1915 there were about 3,000 federal prisoners, serving time for crimes such as treason, espionage, mail fraud, antitrust and banking offenses, and violations of the newly enacted Mann Act, which made it a crime to transport a woman across state lines for "immoral" purposes. More than two-fifths of federal criminal statutes were enacted after 1970, when Congress and the White House took on organized crime, drugs, pollution, and other politically charged targets. In 1981, when Ronald Reagan took office, there were about 20,000 federal prisoners, a figure that rose to 53,000 by 1989. The number has more than tripled since then, to about 171,000. The number of federal prosecutors also has shot up, from about 1,500 in 1981 to more than 7,000 today.

Although the federal prison population has increased dramatically, it is still dwarfed by the 1.9 million or so inmates in state prisons. Due to limitations of time and funding, federal criminal prosecutions are highly selective, creating dangerous incentives for federal prosecutors to engage in vendettas against unpopular defendants (such as Michael Milken and Martha Stewart), looking for cases that offer maximum political advantage. The average sentence for nearly every type of crime punishable by both federal and state law is higher under federal law, making it easy for prosecutors to force guilty pleas from people who otherwise might be inclined to fight the charges against them.

Of the approximately 77,000 defendants convicted on federal charges in 2001, 97 percent pleaded guilty or no contest. Out of the more than 121,000 cases opened by U.S. attorneys that year, only 5 percent involved violent crimes such as rape and murder (most of which were connected to other federal crimes). Forty percent of the cases involved "public welfare" offenses such as regulatory and immigration violations, and more than 30 percent involved drug offenses. In 2001 only 10 percent of the people incarcerated in federal prisons had committed violent crimes.

Tough on Crime—And the Constitution

Members of Congress do not hesitate to enact criminal laws addressing whatever the public concern of the day happens to be, whether or not the Constitution gives them the authority to do so. In just three years in the mid-1990s, Congress passed criminal statutes dealing with anti-abortion violence, carjacking, failure to pay child support, animal rights terrorism, domestic violence, telemarketing fraud, computer hacking, and art theft, among many other offenses already covered by state laws.

The sometimes violent anti-abortion protests of the early 1990s gave rise to the Federal Access to Clinic Entrances (FACE) Act of 1994, which makes it a federal crime to interfere with reproductive health services through physical obstruction, vandalism, threats, or violence. The upshot is that someone like Eric Rudolph, arrested last year in North Carolina for a 1999 bombing at a Birmingham abortion clinic that killed a guard and maimed a clinic worker, is not charged in state court with assault and murder. Instead Rudolph faces federal charges that he "did maliciously damage, by means of an explosive, a building and property used in an act affecting interstate and foreign commerce," with resulting death and injury. The reason for viewing his actions this way lies not in the nature of his crime but in the politics of abortion.

The federal carjacking statute is another example of how Congress passes legislation in response to the publicity surrounding particular crimes, even when there is nothing about them that makes federal action appropriate. In an especially vicious carjacking that received national media attention in 1992, a Maryland woman was killed after her arm became tangled in her seat belt and the perpetrator drove off, dragging her behind the car. Although local authorities successfully prosecuted the car-jackers, sentencing both the driver and his 17-year-old accomplice to life in prison, Congress felt compelled to pass a law that provides a 15-year minimum sentence for all carjackings involving cars that have moved across state lines at any point. The law, which was passed just a month after the Maryland crime, also mandates a minimum 25-year sentence for any carjacking that results in serious bodily injury and allows the death penalty if anyone is killed.

Federal law criminalizes nearly all robberies and schemes to de-fraud, many firearms offenses, all loan sharking, most illegal gambling operations, most briberies, every drug deal (regardless of the quantity involved), and many more crimes already addressed by state laws. Federal jurisdiction over essentially local crimes is contrary to the system of government envisioned by the Framers, under which Congress was to have only those powers specifically enumerated in the Constitution. When Congress legislates on matters such as the possession of guns in schools or the cultivation of marijuana in a closet, it makes a mockery of the 10th Amendment, which says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." As Chief Justice Rehnquist notes, "Federal courts were not created to adjudicate local crimes, no matter how sensational or heinous the crimes may be."

As a result of congressional overreaching, federal courts face overwhelming caseloads. Because of the Speedy Trial Act, which limits the time between arrest and trial for federal offenses, criminal cases take precedence over civil cases. That means federal judges must clear tens of thousands of federal drug and firearms cases, for example, before they can turn to civil cases adjudicating federal questions such as civil rights violations by government officials or constitutional challenges to state laws. In 1990, when the Federal Courts Study Committee released a report documenting the "rapid diversion of resources from civil to criminal cases," U.S. District Judge John Gerry told a Harvard Law School Association gathering the congressional obsession with federalizing crime was making civil access to federal courts a "cruel joke." In 1999 Rehnquist warned Congress that federal courts, particularly in border areas, were experiencing "a crisis in workload created by an unmanageable number of immigration and drug-related cases."

Double Trouble

Civil litigants are not the only ones who suffer. So do criminal defendants. To begin with, federal penalties generally are much harsher than state penalties for the same offense. Many critics have pointed out that disparate punishment by state and federal jurisdictions for the same crime invites abuse of prosecutorial discretion at both state and federal levels. State prosecutors may use the threat of a federal prosecution as a bargaining tool to wrangle a guilty plea. Federal prosecutors may decide to prosecute only those defendants whose convictions will bring political rewards. Federal prosecutors are free to cherry-pick high-profile or politically expedient cases, knowing that the cases they reject probably will be prosecuted in state court.

In a 1997 article in the Southern California Law Review, Cornell law professor Steven D. Clymer describes a case that illustrates the disparity between state and federal prosecutions for the same crime. Two men, Mark Brock Palmer and Jack Roberts, jointly ran a marijuana growing operation in Spokane County, Washington. After their arrest, the federal prosecutor brought charges against Palmer, but not Roberts. Prosecuted in state court, Roberts was sentenced to a fine of $1,000, which was waived because he was indigent. Palmer, meanwhile, was convicted in federal court and sentenced to a 10-year prison term and eight years of supervised release, the most lenient penalty allowed under federal law.

When Rudolph Giuliani was the U.S. attorney for the Southern District of New York in the 1980s, he implemented an anti-drug policy he called "Federal Day." On a different day each week, all drug offenders arrested and charged that day were prosecuted in federal court. Thus a crack cocaine offender arrested on Monday, say, would face a 10-year mandatory minimum sentence, while a crack offender arrested on Tuesday that same week would face perhaps 18 to 20 months of prison time under state law.

Courts consistently have rejected constitutional challenges by defendants complaining of selective prosecution. The federal prosecutor did not have to explain why he chose to prosecute Palmer but not Roberts for essentially the same conduct. Prosecutors enjoy a legal presumption that they exercise their discretion soundly, making their decisions almost entirely unreviewable. Even if the federal prosecutor had chosen to prosecute Palmer but not Roberts because he personally disliked Palmer, there would be no remedy for that abuse of discretion.

Another problem created by duplication of state criminal laws is the possibility of trying defendants twice for the same offense. The U.S. Supreme Court has held that state and federal prosecutions for the same actions do not violate the Eighth Amendment's prohibition of double jeopardy because they involve two different "sovereigns" (the state and federal governments). Yet the principle underlying the Double Jeopardy Clause is that it's unfair to be punished twice for the same offense or to be prosecuted a second time because the government didn't like the result of the first trial. When Congress criminalizes the same actions that states have criminalized, both kinds of abuses can occur, and they are especially likely in high profile, politically charged cases.

After the riots that followed the 1992 acquittal in state court of the four Los Angeles police officers who were charged with beating Rodney King, the first Bush administration decided to prosecute the men in federal court. What had been state assault charges became federal criminal charges of violating King's civil rights, based on a Reconstruction-era law aimed at thwarting Ku Klux Klan attacks on former slaves. The law provides criminal penalties for violations of civil rights by individuals acting "under color of any law" (such as police officers who use excessive force). Although the federal statute was different from the state law under which the four L.A. police officers originally were charged, the essence of the crime remained the same. If the officers were not guilty of the state offenses, they could not be guilty of the federal offenses either. Yet they were convicted the second time around, and each was sentenced to several years in federal prison.

Public outrage also prompted serial prosecutions in the case of Lemrick Nelson, convicted last spring of fatally stabbing Yankel Rosenbaum during the 1991 anti-Jewish riots in Crown Heights, Brooklyn. Originally tried in state court, Nelson was acquitted in 1992 despite overwhelming evidence of his guilt. Five years later he was tried in federal court, technically not for murder but, as in the Rodney King case, for violating Rosenbaum's civil rights—by stabbing him to death. In addition to actions by public officials, federal civil rights violations can include just about any crime where the victim is chosen "because of his race, color, religion, or national origin." Nelson was charged with attacking Rosenbaum "because of his religion and because he was enjoying facilities provided and administered by a subdivision of the State of New York, namely, the public streets provided and administered by the City of New York."

In other words, federal involvement hinged on the crucial fact that Rosenbaum was walking down the street at the time of the attack. This time around Nelson was convicted, but in January 2002 a federal appeals court threw out the conviction on the grounds that the trial judge had biased the outcome by manipulating jury selection. Among other things, the judge invoked the Rodney King case during jury selection to suggest why the case was important—virtually an invitation for jurors to correct the state verdict. In 2003 Nelson was tried a third time, convicted a second time, and sentenced to 10 years in federal prison (almost all of which he had already served).

In both of these cases, the question is not whether the defendants were guilty. It's whether we want a criminal justice system in which a defendant can be tried again for the same offense if he happens to be acquitted—or even if he's found guilty, in which case punishing him twice would be perfectly OK according to the Supreme Court. Whether we want such a system or not, that's what we've got.

Deriving Force

One reason it's impossible to get a definitive count of federal offenses is that many are derivative, defined by other criminal acts. Laws against money laundering, for example, make otherwise innocent transactions criminal if the government believes they were intended to disguise the source of drug money or other ill-gotten gains. Under the USA PATRIOT Act, federal investigators can criminalize many normal financial transactions by alleging even the most tenuous connection to the funding of terrorism or other illegal activity. Federal prosecutors recently used the PATRIOT Act's money laundering provision against Las Vegas officials accused of taking bribes from a strip club owner. And as illustrated by the indictment of University of Alabama booster Logan Young, derivative crime laws can be used to transform a single offense into several, allowing prosecutors to pile on charges in a way that encourages a guilty plea.

Perhaps the most conspicuous example of a derivative crime law is RICO, the Racketeering Influenced and Corrupt Organizations Act. The most commonly used provisions of RICO make it a crime to conduct or participate in, through a pattern of racketeering activity, the affairs of an enterprise affecting interstate commerce, or to conspire to do the same. The statute defines "a pattern of racketeering activity" as two or more instances within 10 years of "any act or threat" involving a laundry list of crimes defined by state laws or other federal laws.

For instance, two acts of mail fraud within 10 years constitute a pattern of racketeering activity under RICO. Thus, anyone associated with a group of people (an "enterprise" under RICO) that allegedly committed mail fraud ("racketeering activity") could be charged with conspiracy to violate RICO, which carries a 20-year prison sentence. People convicted under RICO can also lose their real and personal property to criminal forfeiture. The government can seize a defendant's assets immediately after indicting him, making it virtually impossible to finance an effective defense.

As the definition of RICO offenses makes clear, any truly wrongful acts covered by the law are already criminalized in other statutes. Not only are RICO violations derivative offenses, but so are many of the underlying crimes the law lists, such as mail fraud and money laundering. RICO adds nothing of substance or value to the federal criminal code, except as a weapon in the hands of investigators and prosecutors.

Derivative crime laws are designed to facilitate convictions, not to protect anyone. Consider the derivative crime of mail fraud, which involves using the mails to perpetrate a fraud. Since almost everyone mails letters, it's easy to satisfy part of the definition and make an indictment stick. If the defendant refuses to plead guilty, the government has to produce only the weakest circumstantial evidence to allow a jury to conclude that the defendant's letter was part of a scheme to defraud someone, and the defendant faces up to 20 years in prison—and potentially an additional 20 years for a RICO violation.

Most federal criminal laws are derivative because of constitutional constraints on the federal government. For example, Congress has no constitutional authority to make it a crime for one person to defraud another. But it does have the authority to regulate interstate commerce. In 1909, relying on a strained interpretation of that power, Congress passed a law that made it a crime to use the national mail system, even incidentally, to defraud someone.

In the 1916 case Badders v. United States, Supreme Court Justice Oliver Wendell Holmes brushed aside the lack of constitutional authority for this statute, upholding a man's conviction on seven counts of mail fraud (one for each letter) and his sentence of five years' imprisonment per count and a $7,000 fine. Writing for the majority, Holmes reasoned that Congress has the power to regulate (and criminalize) use of the mails even though Congress would have no constitutional authority to criminalize the underlying fraud. "Intent may make an otherwise innocent act criminal," wrote Holmes, "if it is a step in a plot." Citing Supreme Court cases upholding similar laws regulating the use of the mails, Holmes concluded, "Whatever the limits to its power, [Congress] may forbid any such acts done in furtherance of a scheme it regards as contrary to public policy, whether it can forbid the scheme or not."

The Supreme Court's reluctance to question the use of the Commerce Clause as a license to pass criminal laws has created a situation in which Congress has virtually plenary authority to criminalize whatever conduct it chooses. In the 1995 case United States v. Lopez, the Supreme Court ruled for the first time in 60 years that a federal criminal law exceeded Congress' authority under the Commerce Clause. The law in question, the Gun-Free School Zones Act, made it a federal crime to possess a gun in or near a school. But most lower courts have refused to apply that decision in subsequent cases. If the Supreme Court is serious about restoring federalism by imposing meaningful checks on congressional authority, it will have to speak to the issue again, and more forcefully.

Accidental Criminals

In addition to the question of whether Congress has authority to legislate in a given area, there is the issue of whether criminal penalties are appropriate. Consider the case of Christian Hansen and his son Randall, owners and operators of the Georgia-based LCP Chemicals and Plastics. In 2001 the Hansens were convicted of more than 30 environmental violations, including offenses under the Clean Water Act, the Resource Conservation and Recovery Act, the Endangered Species Act, and the Comprehensive Environmental Recovery and Compensation Liability Act. The elder Hansen was sentenced to 10 years in prison, while his son was sentenced to four years. Even though only one employee testified to slipping in contaminated wastewater (but reported no resulting injury), the Hansens were convicted of endangering the health and safety of employees, among many other charges.

Perhaps the most disturbing feature of prosecutions like this one is that federal regulatory statutes such as the Clean Water Act and Endangered Species Act impose criminal liability on the basis of negligence and do not require any culpable intent by the accused. The Supreme Court has determined that certain "public welfare" offenses can trigger criminal sanctions without a showing of criminal intent, recklessness, or even knowledge of the violation. Thus, Congress can impose harsh criminal penalties on business owners and supervisors who have no knowledge of or control over regulatory violations that may occur at their firms.

Environmental regulations, antitrust laws, securities regulations, and a host of other federal laws aimed at nonviolent, nonpredatory behavior the government wants to discourage illustrate how far we have moved from the traditional view of crime as deliberate wrongdoing. Only intentional crimes against people or their property should be subject to criminal penalties. If the Hansens' environmental violations merited sanctions, they should have been civil, not criminal. And if Edward Hanousek, the railroad supervisor mentioned at the beginning of this article, was negligent in overseeing the independent contractor who accidentally spilled oil into a river, whatever harm resulted should have been addressed in a civil proceeding, requiring payment for cleanup or restoration of the waterway.

In recent decades prosecutors increasingly have pursued criminal sanctions against people for behavior that in the past would not have drawn even a fine, much less a prison term. Rudolph Giuliani prosecuted financier Michael Milken for what his own staff called "technical violations" of securities regulations. James Comey, Giuliani's successor as U.S. attorney for the Southern District of New York, charged Martha Stewart, former president of Martha Stewart Living Omnimedia, with "securities fraud" for publicly declaring herself not guilty of a crime the government has not proved she committed. (See "St. Martha," October.) Federal prosecutors receive political benefits not for hard-nosed prosecution of real crimes but for creatively charging high-profile targets. Instead of being reviled for his malicious prosecution of Stewart, Comey recently was promoted to deputy U.S. attorney general, the second-highest post at the Justice Department.

Federal Court Advantage

Once a prosecutor picks his target, he can rely on many features of the federal system that facilitate convictions. In a delightfully (and disturbingly) frank article in the April 1995 issue of the Hastings Law Journal, University of Virginia law professor John C. Jeffries Jr. and U.S. District Court Judge John Gleeson argue that "federal prosecutors can conduct organized crime investigations more quickly, bring more charges, and win more convictions than state and local authorities" due to "features of federal law [that] combine to give federal prosecutors enormous advantages over their state and local counterparts."

In federal court, for example, a defendant can be convicted solely on the basis of uncorroborated testimony by an accomplice (called "statements of interest"), which is something that many states, including New York and California, do not permit. The rationale for such state rules is that an accomplice has little incentive to testify truthfully, especially if he can cut a deal by fingering someone else.

Jeffries and Gleeson also note that a federal grand jury can be called "any time a prosecutor chooses," even without a formal allegation of a crime. "An anonymous tip or rumor may suffice," they write, and an investigation "may be commenced simply to provide assurance that the law has not been violated." A federal grand jury possesses nationwide subpoena power, can hear evi-dence that would be inadmissible at trial, and can return an indictment based entirely on hearsay. "In these and other respects," Jeffries and Gleeson write, "federal grand jury practice is stacked in favor of the prosecution."

Federal sentencing guidelines compel federal judges to give longer sentences than they otherwise might, allowing "downward departures" only in narrowly de-
fined circumstances. "The Sentencing Guidelines empower prosecutors," Jeffries and Gleeson write. "Indeed, if federal prosecutors had been asked to create the sentencing regime that would place the maximum permissible pressure on criminal defendants to cooperate with the government, they could hardly have done better than the Sentencing Commission." Under the guidelines, cooperating with the government is usually the only way for a defendant to substantially reduce his sentence, so "the prosecution holds the key to the jailhouse door."

Although Jeffries and Gleeson focus on organized crime, they note that federal prosecutors can use their advantages in all sorts of cases. "The limits set by the substantive law are so relaxed as to be almost irrelevant," they write. "If, for example, federal prosecutors wanted to stamp out late-night robberies of convenience stores, they would have the authority to try. That such crimes remain the province of state law is not a matter of legislative coercion but of prosecutorial choice."

All three branches of the federal government bear responsibility for allowing prosecutors to wield such sweeping powers. Congress treats criminal statutes as symbolic statements rather than legislation that needs to be justified on constitutional and policy grounds. In their eagerness to condemn the villains of the moment—polluters, drug dealers, insider traders—legislators pay little attention to whether the punishment fits the crime or even to whether the behavior they're targeting is properly considered a crime. The executive branch lobbies for new laws and imposes few limits on prosecutorial discretion. Perhaps most disappointingly, the Supreme Court has complacently approved the steady erosion of due process rights, constitutional restrictions on punishment, and state autonomy.

The Court is not likely to revisit the distinction between civil and criminal penalties or impose new limits on punishment under the Eighth Amendment. But it has shown an interest in reviving federalism, and the best hope for shrinking the domain of federal criminal law may be for the Court to follow up on its decision in Lopez with a more forceful statement of the need to distinguish between local and national crimes. Although lower courts have not done much with Lopez, there have been a few promising decisions.

Last year, for example, the U.S. Court of Appeals for the 9th Circuit overturned two convictions—one for possession of child pornography, the other for possession of homemade machine guns—on the grounds that the offenses were too remote from interstate commerce to justify federal prosecution. For similar reasons, it also ruled that the Controlled Substances Act "is likely unconstitutional" as applied to medical marijuana users. We can expect to see more such cases if the Supreme Court issues a ruling that establishes clearer limits to congressional authority under the Commerce Clause. But that would mean revisiting decisions on which the legitimacy of the federal government's expansion since the New Deal depends.

In Lopez the Court, quoting an earlier case, worried that an overbroad reading of federal powers threatens to "obliterate the distinction between what is national and what is local and create a completely centralized government." Reversing that process may require bolder action than the Court is willing to take.