Making A Federal Case Out of Almost Everything

It's time to rediscover constitutional limits

Guest Post by Gene Healy

"Don't make a federal case out of it," we used to tell people who blew things out of proportion. But that phrase is quickly losing its bite as the federal government expands its jurisdiction to every area of American life.

Responding to the Barry Bonds-Jason Giambi steroid scandal, Senator John McCain (R-AZ) recently threatened to bring the federal hammer down on Major League Baseball: "Major-league baseball players and owners should meet immediately to enact the standards that apply to the minor leagues, and if they don't, I will have to introduce legislation that says professional sports will have minimum standards for testing," McCain said on December 3rd. (Up next, perhaps, legislation to revoke the American League's designated hitter rule.)

The week before McCain issued his threat, the Justice Department fought in the Supreme Court to maintain the right to jail sick people taking marijuana on the advice of their doctors and with the approval of their state government. On November 29, the Supreme Court heard oral argument in Ashcroft v. Raich, a case involving two desperately ill women who use marijuana and seek protection from prosecution under federal drug laws. Acting solicitor general Paul Clement told the Court that medicine grown in one's own backyard for home consumption was a national matter, subject to Congress's power to regulate interstate commerce—despite the fact that there is nothing remotely commercial or interstate about the conduct at issue.

Those are just two recent examples of a federal government that views its jurisdiction as limitless. That's a view quite at odds with the one held by the Constitution's Framers. The document they drafted envisioned a federal government focused on national issues, such as "war, peace, negotiation, and foreign commerce," in Madison's words. Even the most devoted advocate of national power, Alexander Hamilton, agreed, explaining in Federalist 17 that under the Constitution, "the ordinary administration of criminal and civil justice" would be left to the states.

We've drifted far from that understanding. Congress's power to "regulate Commerce...among the states," which was designed to eliminate state-level trade barriers, has become a limitless font of federal power, used to regulate or criminalize behavior better left to the states or the civil law.

With commerce clause limits eviscerated, almost anything can be a federal crime. We've gone from a Constitution that mentions only three federal crimes (treason, piracy, and counterfeiting) to a federal criminal code with over 4,000 separate offenses, some of them stunningly trivial. In 2002, President Bush signed legislation making it a federal crime to move birds across state lines to engage in fights. The ban on cockfighting joined such notable federal crimes as interstate transport of unlicensed dentures (punishable by up to a year in prison), tampering with an odometer (up to three years), and pretending to be a member of the 4-H Club (up to six months). These and other offenses larded throughout the U.S. code could make for an interesting conversation with one's cellmate: "What are you in for, kid?"

But out-of-control federalization is only rarely amusing. It brings serious costs. In addition to the trivial crimes mentioned above, Congress has federalized a host of ordinary street crimes already covered by state criminal codes, crimes like arson, carjacking, and gun possession by felons. Shunting these cases into federal court causes huge delays to civil litigants and unsustainable pressure on the federal courts. Chief Justice Rehnquist has characterized the result as "a crisis in workload." Forcing the federal courts to handle workaday criminal matters crowds out civil suits and leads to huge delays for civil litigants because criminal defendants have a constitutional right to a speedy trial and everyone else has to wait in line.

Moreover, a federal government focused on everything from cockfighting to steroid use is a federal government that's not focused on truly national issues. Case in point: In the months leading up to the September 11 attacks the FBI was engaged in an 18-month-long sting operation at a brothel in New Orleans that netted 12 prostitutes. September 11 should have concentrated the mind wonderfully as to proper federal priorities, yet federal law enforcement to this day continues to behave like the local vice squad.

But the most important costs of overfederalization are the costs to the rule of law. A federal criminal code that covers everything essentially delegates to prosecutors and police the power to pick targets they think they should get rather than offenses that need to be prosecuted—leaving everyone at risk. That is unacceptable in a country that still considers itself a government of laws and not of men. It's well past time we rediscovered the wisdom of constitutional limits.

Gene Healy is senior editor at the Cato Institute, and editor of the new book Go Directly to Jail: The Criminalization of Almost Everything. This essay originally appeared at Reason Online

Question Authority

Guest post by John R. Guardiano

To the media, it was a dramatic revelation of Bush administration hypocrisy and incompetence: A lowly American GI courageously speaks truth to power, thus showing that the emperor has no clothes. But to this Marine veteran of the Iraq war, the hullabaloo over Army Spc. Thomas J. Wilson's question reveals far more about media bias, prejudice and ignorance than it does about the U.S. military and Iraq.

Spc. Wilson asked Defense Secretary Donald Rumsfeld why, nearly two years after the start of the war, his unit still has too few "up-armored" humvees. The media were surprised that an enlisted man would ask so direct and pointed a question of the Pentagon's highest official. I wasn't.

I enlisted in the Marine Corps Reserve after Sept. 11, 2001, and served in Iraq in 2003. Throughout boot camp, combat training and subsequent preparation for war, my instructors always stressed the importance of independent thinking and initiative. Obviously, when you're in the middle of a firefight, you cannot--and must not--second-guess split-second command decisions. However, when preparing for war, thoughtful and considered questions are not only tolerated; they are encouraged--even demanded, I found.

As one of my combat instructors told us: "Marines, you're more likely to die from someone doing something stupid than because the enemy is skilled and ingenious. So make sure you've thought things through and that everyone's on the same page. Be polite. Be tactful. But don't be afraid to ask questions."

I soon discovered that this command to think and to ask questions wasn't mere rhetoric. I was serving with the First Battalion, Fourth Marine Regiment at an abandoned pistol factory in Al Hillah, about 60 miles south of Baghdad. Every three weeks or so, we were visited by Lt. Gen. James N. Mattis, who was then commanding the First Marine Division in Iraq.

Gen. Mattis is a Marine's Marine, a true warrior who speaks bluntly and candidly, without being bound by the constraints of political correctness. For well over an hour, on a routine and regular basis, the general would gather together his Marines and field questions. Nothing was out of bounds. The event was entirely democratic and thoroughly American--though marked by standard military etiquette and respect for rank. Thus, newsmen and commentators who fear "retribution" against Spc. Wilson haven't a clue as to what the U.S. military is all about. Spc. Wilson asked a tough but fair question; however, for any U.S. serviceman who's ever been to war, this was hardly surprising.

Nor does his question demonstrate, as some have argued, that the Iraq war was ill-conceived or poorly planned. War is, by its very nature, surprising and unpredictable; it forces us to adapt and to be innovative. Armchair "experts" notwithstanding, the fact is no one anticipated the Baathist-Sunni insurgency, certainly not the U.S. military. We all expected to knock off Saddam Hussein and his elite Republican Guard and then head home in time for the July 4 celebrations. That's why, when I deployed to Iraq in 2003, I traveled throughout the country in a standard canvas humvee with no special armor. Nor did I have any special body vest or protection.

I thought nothing of this at the time and still don't. My team went as far north as Baghdad, but we were situated mainly south of the Sunni Triangle, in predominantly Shiite Iraq. Throughout our entire time there, the Iraqis welcomed us as liberators. We were well prepared for the threat as it then existed and as we understood it.

But when my old Marine Corps reserve unit redeployed to Iraq in September, it did so with fully armored vehicles, new sappy plated vests and special goggles--all designed to protect against shrapnel and improvised explosive devices. That's because the unit was deploying to Fallujah, and the threat there was different from what we had faced in southern, Shiite Iraq.

This type of change and adaptation has occurred in all wars from time immemorial. It reflects not poor planning but the unpredictable nature of war. That's why the Defense Department has been moving quickly to up-armor its humvees, producing nearly 400 such vehicles a month, up from 30 a month in August 2003, according to Army Lt. Gen. R. Steven Whitcomb.

The U.S. military ultimately wants 8,100 up-armored humvees versus the nearly 6,000 such vehicles that it has currently, Gen. Whitcomb told reporters last week. Moreover, according to the Army vice chief of staff, Lt. Gen. Richard A. Cody, the military long ago embarked on a "Manhattan-like project" to remotely jam IEDs with radio sensors.

If you're an American soldier or Marine whose life is on the line now, clearly that's not good enough. On the other hand, it simply isn't true that U.S. military leaders have callously ignored the troops' request for up-armored vehicles and other protective equipment. In fact, most of our troops in Iraq have up-armored vehicles, and units there take force protection quite seriously.

Delays ought to be blamed on the military bureaucracy, which Secretary Rumsfeld has been trying to reform. Indeed, that's what military transformation--a Rumsfeld priority--is all about. Yet, many of the same people who are most vociferously denouncing the lack of up-armored humvees in Iraq also fight military reform tooth and nail.

Example: When the Army decided last winter to cancel development of its Cold War relic Comanche helicopter, Sen. Christopher Dodd, a Connecticut Democrat, immediately took to the barricades. "It simply doesn't make sense to pull the plug on the Comanche," Mr. Dodd said. "Obviously, this will not be an easy fight, but I intend to work with other members of the Connecticut congressional delegation to seek to retain the Comanche as part of our military arsenal."

It didn't seem to matter to Mr. Dodd that the Comanche was a $39-billion boondoggle that the Army didn't want because the aircraft isn't suitable for 21st-century urban warfare. Nor did Mr. Dodd seem to care that much of the displaced Comanche money would be used to equip existing Army helicopters with new countermeasure systems necessary to neutralize the ubiquitous threat posed by rocket-propelled grenades, shoulder-fired missiles, and man-portable air-defense systems, all of which are omnipresent in Iraq.

Yet Mr. Dodd, who has never been a champion of big defense budgets, now has the chutzpah to lecture Mr. Rumsfeld about the need to "spare no expense to ensure the safety of our troops, particularly as they confront a hostile insurgency and roadside bombs throughout Iraq." Mr. Dodd says Mr. Rumsfeld's response to Spec. Wilson--"You go to war with the Army you have"--is "utterly unacceptable. Mr. Secretary," he writes, "our troops go to war with the Army that our nation's leaders provide."

Quite true--and Mr.. Dodd is one of those leaders.

Nor does the entire hullabaloo concerning up-armored humvees show, as some commentators contest, that U.S. troops lack confidence in their military and civilian leaders. The reality is that troop morale is consistently high.

Of course, American soldiers and Marines yearn to come home; it is not in our nature to colonize or occupy a country. By the same token, however, most U.S. troops take understandable pride in a job well done. They are pleased to have the historic chance to serve and to practice, in a real-world operation, that which they have been training for all these many years. That's why re-enlistment rates are high.

As U.S. Central Commander Gen. John Abizaid told Tim Russert on "Meet the Press" Sept. 26: "The constant drumbeat in Washington of a war that is being lost, that can't be won, of a resistance that is out of control, simply does not square with the facts on the ground." In fact, the vast majority of Iraq is not a war zone; it is peaceful, tranquil and doing surprisingly well. I refer specifically to the Shiite south. The Kurdish north, too, is doing relatively well, despite the recent upsurge of violence in Mosul.

"So is this fight in the Middle East worth fighting?" the general said to Mr. Russert. "Absolutely," he said. "In my mind, and in the minds of our young people that are out here fighting and sacrificing, it's absolutely worth it."

Of course you won't hear any of this in many news articles or broadcasts. The media long ago decided that its job was to put a negative slant on all things Iraq. Truth is, as they say, the first casualty of war.

Mr. Guardiano is an Arlington, Va.-based journalist who served in Iraq in 2003 as a field radio operator with the U.S. Marine Corps' Fourth Civil Affairs Group.

My Body is My Own (Isn't it?)

My Body is My Own (Isn't it?)

I wanted to post something early this morning, as part of my new plan for world domination, but I have held off, since my editorial board has been having a difficult time agreeing on a topic. While my editors have had quite a few suggestions, my bullheaded writing staff can not get off this one thing, the single most bothersome thing that we have heard since Friday. The greatest threat to our republic. The most irksome task that our overreaching government is preparing to undertake.

Nothing bothers me more than the increasing intrusiveness of our government, the erosion that is occurring in our constitutional protection. The government itself, the small people who legislate and execute, prosecute and judge, do about what one would expect. They are human beings, after all, and therefore their selfishness and venality, their grasping and subordination to the grasping for power and wealth, are to be expected. Humans all have feet of clay, and very few of us are large enough of soul to rise above our essential ape-ness. No, that is not the problem. My problem today, and every day, really, is the credulous, sheeplike quality We the People exhibit when our governors make ready to take yet another iota of power from us. With our opinion leaders leading the charge over the cliff like Lemmings, we acquiesce to almost all of the inroads into our personal rights that the government attempts. Power is a zero-sum game, and each iota of power that we grant to the government is one we have lost, until we may have precious few freedoms left. We have lost so much already, we can not afford to lose more. Each new instance is seen as such a little thing, yet the addition of them all amounts to a terrible chasm between our constitutionally mandated position on the spectrum of power, and the puny position that we inhabit today.

I am a child of the sixties, and can testify that, by 1969, freedom was breaking out all over. We could say whatever we wanted, live wherever we wanted, and if it pleased a homeowner, he could cut down the tree on his front lawn. But, just then, even as we were at our pinnacle of reclaiming our personal power, the culture of victimhood, and the nanny state, swung into the ascendency. Each little inroad seemed small to most of us at the time, yet the aggregate result has been overwhelming. Hate speech laws. Special treatment for violence, when it was conducted against women. The Supreme Court of the land confirming that a plant in our garden is a threat to interstate commerce, since, after all, one might hurt oneself thereby. The area of government applying the interstate commerce clause alone has been used to remove more of our personal freedom and power over ourselves than two world wars. Almost a century ago, when government sought to impinge upon our freedom, they sought shelter in our constitution, asking for, and receiving, constitutional amandments in order to institute the income tax, or the prohibition against alcohol. But they have become so brazen that they do not seek such authorization when they seek to diminish us any more. Or, when an amendment fails, or seems to be unwinnable, they merely pass a law. We, usually, acquiesce. Then the Supreme Court says Amen.

On Friday, Barry Bonds, perhaps the greatest living baseball player, was revealed to have made some admissions about the use of performance enhancing drugs. On Sunday, Senator John McCain proposed a sweeping new legislative incursion into the regulation of baseball. And no respected commentator, that I have heard so far, has offerred a word in opposition. After all, steroids are bad, aren't they? Violence against women is bad too, isn't it? Hate speech is bad as well - who could argue against that? I suppose that, as the sheep walk calmly into the abbatoir, they can see no harm in merely walking up a ramp.

There are two issues involved here. One is, steroids are bad for you. While there is an argument to be made that it is anabolic steroids that are dangerous, and that the metabolic steroids, which have only recently become available in quantity and at a low price, prescribed and monitored by a physician, might not be, but I will concede the point: Steroids are bad. Next item, children should be protected from themselves in a manner that adults might not be forced to allow. Again, while I could put up a spirited argument in opposition, I will stipulate this point as well. Children should be protected from themselves. Yet, incredibly, these are the pegs that will drive the debate toward federal government intrusion into the administration of a professional sport. I find that stunning.

Take a fully grown man, whose performance in college sports has placed him in a position to make millions of dollars per year in his business. Today, government allows this man to make a decision to undertake some personal risk in order to further his career. His body is his own. It is perfectly legal today for this man to have his doctor administer Human Testosterone of Human Growth Hormone. He will have an enhanced ability to build muscle mass, and an increase in his aggressiveness. Now along comes government, that seeks to insert itself into this doctor-patient relationship. As Big Brother rattles his sword, expect baseball to cringe in fear, and modify its rules to keep the beast at bay. Yet almost no one sees the danger.

There are many who will say that this is an unimportant new government incursion into our rights. They will say, if they are knowledgeable enough, that the government already legislates and regulates the prescription of Methadone, when administered to addicts. (With gruesome results. For more reading on the politics of methadone, read this) But professional athletes are not addicts, nor are they guilty of criminal behavior, necessarily. At the very least what has been proposed is a usurpation of the doctor-patient relationship in a setting totally without a criminal element. As with violence against women, all the acts proposed to be made criminal acts are already illegal. And, we do not yet know what else will be added to the legislation, what incursion into our privacy will be made. If we even have any privacy left. There are those who have already thrown in the towel, who say that all of our privacy is gone. That is what they say about the Patriot Act, and NASPER (see post below, Freedom Hijacked). But that is demonstrably untrue, as, if it were true, there would be no need for this new law. There are those who say that this will become moot, as Baseball will change its rules. But any change will be made in the shadow of this threat from government, which is even more insidious. There is no appeal from a settlement. No judicial oversight, no constitutional test. While I would not expect any protection from the Supremes on this one, they might surprise me. But they will not get the chance thus time, if Baseball caves in to the pressure.

Finally, there are those who will say that good ethics or morals would obviate the need for government to intervene. But that is the very heart of this thing. It used to be that we could use ethics and morals as a guide to our behavior. No more. If you remember the Clinton impeachment debate, you will recall that the legality of his actions were the limits that he placed upon himself, and the impeachers in Congress respected those limits. We have entered an age where the law is the arbiter of behavior. I long for a world where men and women placed limits upon themselves that were far stricter than mere law would mandate. Today we have a world where the student who fails to cheat in school is the exception, and our media have becomed coarsened to anything resembling good taste or modesty. In such a world, it is argued, the law must expand to encompass more of human interaction. And that is truly frightening. And, what with the social conservatives in the ascendancy, it will be getting worse.

Drug War Failure

Drug War Failure

Another study has been released that shows that our benighted policy on drug consumption has failed, according to the Washington Times. While this can not be surprise to anyone who has been paying attention, this study points out that both availability (up) and price (down) are going in the opposite direction to what the entire War on (some) Drugs has promised:

The report conducted by the Washington Office on Latin America, a non-governmental organization that has the stated goal of trying to "reorient U.S. drug control policy to the region," concludes that U.S. policy geared toward "reducing drug abuse and availability in the United States" from a "supply-reduction model does not work."

Citing falling wholesale and retail cocaine and heroin prices and collateral damage suffered in Latin American countries as a result of U.S. anti-drug policy, Joy Olson, executive director of WOLA, said, "We've been tough on drugs, now it's time to get smart on drugs."

But the most disturbing part of all of this is the chilling effect that the war has had on our government's relationship with the truth. As the Times says:

The three-year study, "Drugs and Democracy in Latin America: The Impact of U.S. Policy," includes independently recorded data and unreleased studies carried out by the Rand Corporation for the Office of National Drug Control Policy that were leaked to WOLA by a congressional office, according to John Walsh, WOLA senior associate for the Andes and drug policy.

Walsh and a senior adviser at the ONDCP confirmed the initial report had been submitted to the office in spring 2004 but has not yet been released.

When our government hides and obfuscates the truth, commissions and then 86s a study critical of one of its policies, the entire fabric of our democracy is diminished. When our "Drug Czar" refuses to debate, or even take questions from any journalist who has not been previously vetted by his department, we slip further down the slope into unresponsive, and unrepresentative government.

If such a debate would be held, any zero base thinker would first examine the very basis of our policy, before delving into the arcana of its implementation:

Over the last 25 years U.S. policy has tried to attack the war on drugs from a supply-side perspective. Through the eradication of coca crops in producing countries, interdicting drug shipments to the United States and jailing drug offenders, authorities were hoping to significantly drive up the cost of cocaine and heroin -- thus reducing cocaine's economic appeal to potential users.

However, the attempted siphoning of the supply side has lowered street prices and increased the number of incarcerated drug offenders, driving up government spending, without significantly reducing the amount of drug flow, the study's findings show.

Data compiled by WOLA show that since 1981 the retail price for 2 grams of cocaine went from $544.59 to $106.54 in 2003. Retail heroin prices mirrored the decline in cocaine prices, falling from $1,974.49 to $361.95 during the period.

Walsh noted that "price estimates are manifestations of supply and demand" and thus are the most accurate indicators to "determine what is coming in."

The number of incarcerated drug offenders rose from 45,272 to 480,519 from 1981 to 2002, and government spending on overseas supply control rose from $373.9 million to $3.6 billion from 1981 to 2004.

Once again, government has failed to observe the emperor's new clothes. That is, when they seek to drive up the cost, they are, if successful, driving up the profit motive for the criminals who pursue this business. When they are unsuccessful, as in the present instance, they lower the barriers to entry into the business. Thus there are ever more young recruits into this trade.

This is enough to make one tear one's hair out. The government claims to seek to make drug abuse more rare. Instead, they create a new criminal class. Now that the failure of their policy becomes more and more clear, they seek to hide the evidence. Meanwhile, collateral damage (see yesterday's post, below) increases, and government, rather than attempting to remedy the problem, merely increases the budget of the failed bureaucracy. For just one instance of this, the government has instituted a policy of spraying poison on the Colombian and Bolivian hillsides where coca cultivation is believed to take place. At first, the poison kills everything, both the drug crop and any legal crop that is grown in the area dies. That is bad enough, but recent reports show that the growers have developed poison resistant plants, so the spraying has the effect of performing the weeding that the illicit growers previously have had to do themselves. Government's answer? Increase spraying 50%.

When our government decided to ban alcohol, they figured that they would need a constitutional amendment to accomplish this legally. When they sought to ban marijuana, they levied a tax. But over the years, they passed ever more restrictive legislation, with little public complaint. Now, when a case against any little element of this anti-drug approach makes it to the Supreme Court, the government's response is to claim that, if the supremes restrict the government's little war, it would be an intolerable burden on the judiciary, as hundreds of thousands of appeals might be filed. In the case argued Monday, in which two women are accused of growing a few marijuana plants for their own use, the government claimed that this activity interferes with interstate commerce, since otherwise they would have to buy regular prescriptions. (That's after the bit where they claimed that marijuana has no efficacy as a medicine in the first place.) Under this analysis, anything at all that a citizen does interferes with interstate commerce. All choices are economic to an economist. Getting married reduces the profits of pimps. Going to the bathroom spurs sales of toilet paper. If interstate commerce can be construed this broadly, then there is no hope left for the enumerated powers set forth in our constitution.

It would seem that the mendacity of our government knows few if any boundaries. They pursue a blatantly unconstitutional "war," and lie to protect their right to continue to do so. They silence debate, and then hide studies and polls that show that their policy is not only ineffective, but unpopular. We are ruled by two parties whose main differences are in the personalities of the candidates, rather than any substantive policy split. Didn't Kerry just run a campaign where he said that he would have done exactly what Bush has done, only better? At some point the people must demand that their government be responsive to them. Or not.