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.