The Original Meaning of the Necessary and Proper Clause
The Aggregate Affects Test and Due Process

An Introduction to Crime & Federalism

The text of the Constitution enumerates, and therefore limits, Congress' powers.  Article I, §1. ("All legislative powers herein granted shall be vested in a Congress of the United States [ ].")   Contrast this language with Article II, §1 which says, "The executive Power shall be vested in a President of the United States of America."  And Article III, §1, which states, "The judicial Power of the United States, shall be vested in one Supreme Court [ ]."  Notice that only those legislative powers granted belong to Congress.  This constitutional language was not accidental. 

The Federalist Papers address the principle of enumerated powers.  "[I]t is to be remembered, that the general government is not to be charged with the whole power of making and administering laws.  Its jurisdiction is limited to certain enumerated objects[ ]."  The Federalist No. 41.  The Federalist No. 45 famously states: "The powers delegated by the proposed Constitution to the Federal Government are few and defined."

We can count on one hand Congress' textual basis to define or punish crimes.  Thus, "[t]he Congress shall have Power to declare the Punishment of Treason [ ],"  Art. III, §3, the power to "define and punish Piracies and Felonies committed on the high seas and Offenses against the Law of Nations," Art. I, §8 Cl. 10, and "[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States." Art. I, §8 Cl. 6.  Today, however, the number of criminal statutes is almost inestimable.

According to a report of the American Bar Association, there are over 3,300 federal crimes.  Federalization of Federal Criminal Law, Appendix C. These laws are interspersed in 50 titles of the United States Code.  Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. Law. Rev. 46 (1998).  Also, the violation of federal regulations is often made criminal: the ABA estimates that the violation of at least 10,000 regulations is a federal crime.  Federalization of Federal Criminal Law at 10.

We used to be able to count on one hand when Congress could define or punish crimes.  Now no one can know the extent of potential criminal liability under federal law.  This blog will explore what happened.