Today's issue comes from the Heritage Foundation which notes that the number of federal crimes has substantially increased lately. The conservative law blogs (blawgs) are conserned about this massive increase in federal power. The liberals seem to think that the federal government should be able to go wherever it wants.
There are at least two notable ramifications of this massive increase in federal power:
An issue cannot simultaneously be both a federal and state issue - therefore this takes power away from the states. This is a problem because states are in the best position to determine how to resolve a local issue.
Also, many of the federal crimes do not require intent or mens rea. These crimes are like possession. It doesn't matter if you don't know you have it, as long as you have it you are guilty. This dissappearance of this requirement has been an increasing issue for at least fifty years in the United States.
The report u>notes :
Since the start of 2000, Congress has created at least 452 new crimes. So the total number of federal crimes as of the end of 2007 exceeds 4,450. Ninety-one of the 452 were contained in new laws that created 279 new crimes, and the remaining were contained in amendments to existing laws.[22] The total of 452 new crimes breaks down by year as follows: 65 for 2000; 28 for 2001; 82 for 2002; 51 for 2003; 48 for 2004; 13 for 2005; 145 for 2006; 20 for 2007.
I further note 18 USC 711 which reads:
Whoever, except as authorized under rules and regulations issued by the Secretary of Agriculture after consultation with the Association of State Foresters and the Advertising Council, knowingly and for profit manufactures, reproduces, or uses the character “Smokey Bear”, originated by the Forest Service, United States Department of Agriculture, in cooperation with the Association of State Foresters and the Advertising Council for use in public information concerning the prevention of forest fires, or any facsimile thereof, or the name “Smokey Bear” shall be fined under this title or imprisoned not more than six months, or both.
Besides the ridiculousness of these statutes there are substantive problems.
The Federal Government has always had the power to:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;[and]
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
One recent Supreme Court case illustrates this point.
In Gonzales v. Raich, DEA agents stormed onto Angel Raich's land and took his marijuana which he had for medical purposes under California’s Compassionate Use Act. Raich was never arrested, but rather Raich sued to prevent the DEA from enforcing this statute again. The Supreme Court ruled that marijuana was an article of commerce, and that Congress had the power to regulate it. It is necessary to use criminal proceedings in order to enforce the law. Therefore, the federal statute preempts the California statute, and there cannot be medical marijuana.
Now, the debate is not whether medical marijuana is a good idea. The debate is whether the federal government should be telling the State of California how to govern in an entirely local matter. The Supreme Court has generally left the playing field giving the federal government free rein to make whatever criminal statutes it desires.
There are two notable exceptions to this rule: The Guns Free School Zone Act and the Violence Against Women Act. In those cases schools and violence were not considered articles of commerce and therefore did not apply to this rule. Nonetheless, the larger issue is still present.
The federal government usually chooses not to include a standard of intent or culpability, rather they leave it to the courts to decide or the crime is interpretted as one of strict liability as I discussed above. Heritage explains
If anything, mens rea requirements are more important today than in the past. Historically, nearly all crimes concerned acts that were malum in se, or wrong in themselves, such as murder, battery, and theft. Today, however, new crimes and petty offenses created by statute almost always concern acts that are malum prohibitum, or wrong only because it is prohibited. This category includes petty offenses and crimes like marketing medicines not approved by the FDA and shipping flammable materials without a sticker on the box. For malum prohibitum crimes and petty offenses, mens rea requirements can serve to protect individuals who have accidentally or unknowingly violated the law or, in some cases, were unaware that a law covered their particular conduct.
This is a disturbing trend that I doubt will be reversed any time soon.