Federal Power

The federal role in American governance has expanded far beyond what the Framers of Constitution had in mind. In particular, the balance of power between the originally sovereign states and the government in Washington has shifted enormously. An ever greater concentration of power in the national government is supplanting the states’ once predominant role. Instead of being a government of carefully limited powers, the Federal government is now at the point where there seems to be little it cannot do, few kinds of laws it cannot enact, and virtually no constitutional limits on its power to tax and borrow to fund it ever widening range of activities.

This slow but steady growth of federal power over the past 220 years is, for many Americans, a source of deep concern. The question is: Can anything still be done about it? The central government has already amassed a huge national debt, with obligations to pay interest, not to mention principal, that significantly mortgage our future to overseas creditors such as China. Meanwhile, our national defense policies and commitments have fostered a kind of international dependency on the U.S., meaning it would not be easy or, arguably, even safe for our military to withdraw or demobilize. And federal public benefit programs, such as Social Security and Medicare, have already occupied so much of their respective fields that vast numbers of people not merely rely on them but generally see them as essential. It is obvious, however, that if present trends continue it will not be long before virtually all important governmental power will be centralized in Washington. For those who want to turn these trends around, the question is, therefore, how it can be done without destabilizing disruptions or head-on collisions with almost irresistibly entrenched political interests

Everyone who seeks to grapple with how to reduce the Federal government is confronted with the reality that both social benefit programs and military spending are difficult to cut. However, one place where federal reductions should be relatively easy is programs run from Washington that simply parallel existing programs in the states. A prime example is the field of criminal justice.

A Criminal Justice Restoration Act
Over the last century the Federal government has taken over from the states a substantial part of the prosecutions for ordinary day-to-day violations. This Federal take-over is not really necessary, but it has been a way for members of Congress to show that they are “doing something” for which they deserve re-election. In the meantime, however, the states have remained fully capable of carrying out ordinary law-enforcement functions without Federal interference and, of course, they do so every day. In fact, in the case of persons under age 18, the rule already is to leave the job the states. 18 U.S.C. §5032. With very narrow exceptions, no person under 18 can be proceeded against in any Federal court unless the Attorney General certifies that no "appropriate court of a State” has jurisdiction or that the state court “refuses to assume jurisdiction” over the case.

In short, the criminal justice field is a place where a largely duplicative Federal bureaucracy could be reduced to a fraction of its size by restoring to the states the role they have traditionally had and still are perfectly able to carry out. Such a restoration would be an obvious way to substantially reduce the size and intrusiveness of the Federal establishment. All it would take is to extend the present rule of Federal noninterference to persons who are over 18—-giving back the criminal justice role to the states from which it has been taken. A Criminal Justice Restoration Act could achieve this reduction by simply removing the age limit for non-interference and prohibiting the use of Federal money in any case that does not have a uniquely Federal nexus under the United States Constitution. The result would make a significant inroad in the degree to which Federal power is actually wielded within the states, and it would a be an important step in reducing the Federal government to a more constitutionally appropriate size.

In the United States, however, there is a long and strong traditional of treating matters of public safety and criminal justice as a primary responsibility of the states. Yet, over the decades, especially in the last half-century, the federal government has accumulated increasing authority in the prosecution and punishment of ordinary crimes through a parallel criminal justice establishment whose function largely duplicates the authorities in the states. As a result, the federal government now holds more than 180,000 prisoners, representing a nearly 30% increase over in 2000—an average increase of 4.5% per year—mostly for acts that were already crimes under state law:


Of the total federal prisoners held, only those convicted of immigration offenses (19,678 ) and some portion of those convicted of “Other/unspecified” offenses (1,394 ) arguably fell within the federal government’s exclusive constitutional jurisdiction. Almost all of the rest came under federal control, not because of any unique constitutional nexus, but solely because an extremely broad reading the Constitution's Commerce Clause has, since the 1930s, allowed the federal government to selectively pre-empt the powers of the states.

Added all together, this federal criminal-justice activity is increasing the federal deficit by close to $30 billion per year—or about $100 for every man, woman and child in the country. This may not seem like much, but these expenditures will, if allowed to continue, add nearly half a trillion dollars to the national debt over just the next 12 years.

Sources: William J. Sabol, Heather C. West & Matthew Cooper, PRISONERS IN 2008, Bureau of Justice Statistics Bulletin, U.S. Department of Justice 38 (December, 2009)(reporting 182,333 persons held in 2008); JUDICIARY BUDGET: FACTS AND IMPACT, available at http://www.uscourts.gov/budget.html (last visited March 8, 2010); 2010 Budget Summary and 2010 Budget Request by Strategic Goal (U.S. Department of Justice), available at http://www.justice.gov/jmd/2010summary/pdf/bud-summary.pdf

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