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Federalism and Other Head Fakes

We've been hearing for years that if drugs are to criminalized at all, it should be left to the states, and that the federal government has no business in the field.

There are legitimate questions about the scope both of federal police power and the reach of its authority under the Commerce Clause.  In my view, such questions are more pressing now than ever in light of the ominous combination of the burgeoning regulatory state and the increased politicization of the Justice Department.  But the question whether the federal Controlled Substances Act is within Congress's power has been raised and settled long ago.  To my knowledge, after dozens if not hundreds of challenges, not a single court has held the CSA unconstitutional, and the most serious challenge to it was rejected almost ten years ago in Gonzales v. Raich.

One must wonder, though, about the authenticity of the complaints about federal overreach.  While many such arguments are rooted in a sincere if (in my view) mistaken view of federal power, others  --  most, I suspect  --  are just bellyaching by dopers who love getting blasted and want to belittle anything that stops the fun.

If these people were sincere in their federalism arguments, surely I would be hearing from them about the U.S. Justice Department's astonishing decision to "order" a second autopsy of the victim of the police shooting in Ferguson, Mo.  In my numerous years as a federal prosecutor, and more recently as a law professor, I never heard that the Justice Department had the authority to order any such thing. I'll be grateful to any reader  --  especially among those wanting criminal law to be left almost exclusively to the states  -- who can fill me in.


In a case where there are reasonable grounds to suspect a violation of federal civil rights laws and an autopsy may produce relevant evidence, I would think that obtaining one would be within the purview of federal law enforcement. I will leave to others the discussion of whether this is such a case.

It might be the case that, if a federal grand jury were convened to investigate a suspected civil rights violation, the grand jury could order an autopsy, it having the "right to every man's evidence." A grand jury exercises powers that, to my knowledge, are not made available to some Assistant Attorney General sitting in Washington, D.C.

But for however that may be, (1) there is no federal grand jury investigating this so far as I am aware; (2) there are as yet no solid grounds to believe that a crime, federal or otherwise, was committed; and (3) the voices that have been at 100 decibels for years decrying federal overreach in drug prosecutions just don't seem to be at all audible now. This is true even though, if a crime occurred, it was first and foremost the state crime of murder. Why -- other than politics -- would the feds need to jump in absent proof, of which there is none, that the state will not act responsibly?

Both the shooting and the protests/rioting that have followed have clearly become national stories, and the struggle that the state has had in just keeping the community calm seems like VERY strong proof that there is at least a perception among a number of local citizens that "the state will not act responsibly."

Do you really dispute, Bill, that the details of the shooting have become a matter of national/federal concern and that many question whether the state has and can act responsibly in response? Do you really think the feds have more reason to be concerned with what Angel Raich grows in her yard than with the details of a police officer shooting that has touched off a week of protests/rioting AND has been a lead national story for the week?

Kudos to Kent for noting the obvious legal basis for federal involvement in this case, and shame on you for working so hard to see everything through a self-serving political lens.

In addition to Kent's observation, is it possible that Brown's parents consented to the federal autopsy -- something that I believe that they would have the right to do after the state completes its examination?

Doug --

Your response motif here reminds me of the one you used in discussing what punishment should be imposed for the theft of the 11 year-old's computer. It basically consists of the following steps:

1. Declare what the "real problem" is (in that case, "mass incarceration").

2. Declare that I am avoiding the "real problem" by focusing on the unhappiness of the bratty 11 year-old.

3. Divert the thread to one of your long-preexisting topics (here, the federal criminalization of drugs).

4. Upbraid me for deciding the subject matter of my own entry and making the point I see in it instead of the one you see.

5. In so doing, sweep under the rug the hypocrisy of spending years decrying federal meddling in crimes (be they drugs or murder) that you have heretofore insisted would be better left to the states.

Being nobody's fool, you're good, and pretty subtle, at doing this.

In the present case, you say that the shooting and its aftermath have "clearly become national stories," thus tacitly trying to slide by on the premise that the MEDIA decides questions of federalism. Far out!

Then you say that the media's reaction (i.e., liberal extremist stuff like MSNBC, the HuffPo, the New Yorker, the NYT, etc.) "seems like VERY strong proof that there is at least a perception among a number of local citizens that "the state will not act responsibly."

Not exactly. What it "seems like" is that these outlets will find a half dozen or a dozen locals who share Al Sharpton's view of the world, put them on the nightly news, and leave on the editing room floor interviews with people who say "we can handle it."

Plus, I see you employ the old trick of "perception." Yes, well, there's a "perception" among some that Bush was behind 9-11 and a "perception" among others that Obama was born in Kenya. I think it's a bit tricky to allow "perception" to have the deciding vote about federalism or other serious legal issues.

Then you ask, "Do you really dispute, Bill, that the details of the shooting have become a matter of national/federal concern and that many question whether the state has and can act responsibly in response?"

Oh, wonderful, the old "many question" trick. So far as I've seen or you show, there is zero reason to believe that the state authorities have been anything less than professional and honest in their investigation, which is still on-going, taking the time and care that the investigation of a fatal police shooting should. Do you have any evidence -- not an Al Sharpton press release, but evidence -- that the state authorities have acted unprofessionally or dishonestly in their investigation of this episode?

Then you ask, "Do you really think the feds have more reason to be concerned with what Angel Raich grows in her yard than with the details of a police officer shooting that has touched off a week of protests/rioting AND has been a lead national story for the week?"

Just two observations there. First, it is way past time for your side to get over the fact that you lost Raich, and would lose it by the same or a greater margin today.

Second, the remainder of that sentence is just a repackaging of the mistakes you've made before, to wit, the view that local protests and the media's (very, very politicized) view of what it will cover are sufficient to shift authority over a possible small town murder (and I emphasize "possible" since the whole thing is just incendiary speculation at this point) into federal jurisdiction. The same federal jurisdiction, that is, that you've been torching for so long when it comes to dangerous drugs.

Kent, a brilliant man who doesn't get nearly enough exposure on your blog on other left-leaning ones, is a welcome voice, as far as I'm concerned. But Kent's view that there could develop a basis for federal jurisdiction was expressly conditional (a point you glide by). And if and when there is such a basis, the power to subpoena will rest with the grand jury, not with some politically-appointed bigshot in Washington.

Finally, let's step back to look at the big picture. What's actually going on is a re-play of the whites-are-the-devil theory that DOJ was pushing in the Trayvon Martin case. I strongly suspect, Doug, that you're fully aware of the politics behind all this. Holder, being no dummy, has a theory of what he's doing with his job, and the theory is to be seen as advancing the interests of hardcore Democratic constituencies (Al Sharpton and his group and radical feminists still furious about Hobby Lobby).

Those groups would like to see this cop's scalp hanging, as you can't help knowing. They want it whether the cop did, or did not, do anything wrong. Do you doubt it?

For myself, I'd like to see something different. If the cop committed murder or some lesser offense, I'd like to see him brought to justice without a bunch of excuses about PTSD or he was off his meds or whatever else his defense lawyer will concoct. If he did nothing wrong, I would like the race-baiting and scalp-hunting to stop.

Bill, I appreciate your lengthy response, though I keep finding curious your claim I am changing the subject when trying to respond to your post's points. The post, as I read it, asserts that those (like me) concerned with too much federal involvement in local crimes ought to be troubled by federal involvement in Ferguson. I tried to explain why, in my view, the shooting and aftermath in Ferguson seems different in kind than the local activity found to be a valid basis for federal involvement in Raich. And I inquired of you whether you really saw comparable federal interests. I am not trying to upbraid you as much as really understand if you really think federal involvement in what Angel Raich grows in her backyard is more important than federal involvement in what is going on in Ferguson.

The post is about complaints about federal criminalization of drugs as evidenced by the first 3 (of 4) paragraphs. How then am I diverting the thread by saying that I personally see more of a federal interest in Ferguson than I do in Raich and asking you whether and why you see it the other way?

For the record, I agree the media does not itself create a federal interest, and of course I see lots of politics behind what is going on in Ferguson. As I hope you realize, I see lots of politics in EVERY criminal case and commentary, including what is going on in Texas and in Raich and in your comments about "dopers" and in my own perspective on these matters. Moreover, to the extent you trust the political process to take care of the actions of prosecutors, I would expect you to embrace a highly political approach to DOJ, which will make it easier for opposing political interests to call out and seek to remedy any problems seen in DOJ involvement here.

I share your view that it would be great if Mizzou could, without others' involvement, resolve this matter to the satisfaction of those inside the state. Indeed, that was also my view in Raich, though you seemed to embrace the idea in that setting that federal political interests in pot prohibition should trump state local interests in letting Raich grow pot in her backyard. And that is the hypocrisy I really think is revealed here: namely the eagerness of you to trust prosecutors and states when (and only when) they are doing what you think is right and your eagerness to attack prosecutors and states when they do things you dislike.

In contrast, I typically do not trust prosecutors whether they are serving my political interests or not, and I typically do trust states whether they are serving my political interests. You are right, of course, that others are inconsistent, but it is silly for anyone to claim or believe they are so virtuous and pure in their views while the other side is vile and impure.


According to the article linked in the OP, the family hired their own independent pathologist.

I knew that Kent. I was only suggesting that, with regard to the "third" autopsy by the feds, the family may have given their consent, thus negating the need for any specific statutory authority for the feds to do that examination without the family's consent.

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