The Dangers of Over-Federalization in America's Criminal Law System

“It seems like we as members of Congress from both parties have forgotten what the 10th Amendment is all about, which is to let the locals decide the local issues,” Rep. Raul Labrador (R-Idaho) said.

Strazzella said the popularity to make a statement about hot-button issues – like child kidnappings, consumer protection, carjacking, and dog fighting – is the main drive for the enactment of many federal statutes.

Maryland’s State Attorney Joseph Cassilly echoed Strazzella’s views, saying that the problem of over-federalization is “due largely to [Congress] reacting to the crime of the month.”

“This is a political issue,” Cassilly said. “There’s pressure on members of Congress to respond…and they don’t want to be perceived as if they do not care about [a certain issue] so a law gets passed.”

Strazzella said it is a mistake to think that over-federalization does not carry any costs.

“Unwarranted federalization can undermine the delicate balance of federal and state systems and have a detrimental effect on state judicial, prosecutorial and investigating personnel, who bear the major responsibility for enforcement of criminal law,” he said.

Increasing federalization also “throws more locally-oriented cases into the federal trial and appellate court system, jostling for federal court resources and potentially delaying other cases of a true federal interest criminal or non-criminal to some extent,” Strazzella said.

Strazzella said federal criminal law can best be focused on issues of “truly national or international federal interest and not on areas that appropriately belong with the state offense systems.”

Cassilly suggested that any proposal to Congress to adopt another federal criminal law should meet a “screening requirement” that shows the states are either “unable or unwilling to enact laws” to deal with the problem.

“Moreover, there must be some sort of compelling federal interest…that would make state enforcement difficult,” he said.

“The burden should be on the people requesting the law and make their case to Congress before the law can be even introduced,” Cassilly added.

Rep. Jim Sensenbrenner (R-Wis.) said that any attempt to reduce the number of federal crimes would likely meet some pushback.

“I think if we try to cut back on some federal crimes, people that have persuaded Congress or the bureaucrats that put something on the statutes will start screaming loudly,” Sensenbrenner said. “But we don't need to send the FBI out for investigations that can be better handled by local police and prosecutors.”