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Federalism for Thee But Not for Me

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Our friends on the defense side are eager to see federal drug laws -- laws they view as "draconian" and none of the federal government's business anyway  --  done away with in favor of state regulation.  When it's pointed out to them that drug abuse and the awful (and awfully expensive) depredations drug abuse create constitute a nationwide concern, they are unpersuaded.  It's a states' rights issue, period. 

But it would seem that states' rights and federalism are a sometime thing. In the wake of the bungled Oklahoma execution, we hear (for example, on SL&P) this question: "Shouldn't Congress be holding hearings to explore federal and state execution methods?"

In a word, no.  It shouldn't be exploring state methods because that is no business of the federal legislature (it might be a business for the federal courts if there is a strong risk in a particular case that those methods violate the Eighth Amendment). And it shouldn't be exploring federal methods in the absence of at least a minimal reason to think there's something wrong with them.

No such reason exists.  There have been a total of three federal executions in the last 50 years (McVeigh, Garza and Jones), and not a whit of evidence that anything went awry with any of them.  Fifty years of success is not really a cause for concern.

Perhaps Congress could trouble itself to examine a federal problem that actually exists, such as, say, looming national bankruptcy.


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My con law is a bit rusty, but aren't Federal Drug Laws justified under the commerce clause? So I suppose if one believed in a "narrow" reading of the clause, the states rights argument has some logic - wasn't there a case about firearms somewhat recently that narrowed the commerce clause a bit, "Lopez"?

On the other hand, my rusty con law tells me the Federal government has a very little to say about how states impose their various criminal punishments. I wouldn't even know how you could even make the argument.

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