Misguided Federalism

The article considers the effect of the Supreme Court's recent federalism decisions - specifically Lopez and Morrison - on the scope of federal criminal law. The Court in Morrison expressed concern that the extension of federal authority through the Violence Against Women Act to rape, a common law felony prosecuted in every state, went beyond Congress's legislative power because "we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims." Invoking federalism as an independent principle to limit the federal government's authority to prosecute crimes that state and local authorities ordinarily handle certainly has a superficial appeal. Lopez and Morrison both refer to a seemingly inviolable realm of state authority that appears to include state and local control - perhaps to the exclusion of the federal government - over the prosecution of "local" crimes. The Court's federalism analysis gives the impression of separate spheres of authority over the criminal law that relegates Congress to legislating only in those areas that are obviously "national" in scope. The notion of mutually exclusive spheres hinted at in Lopez and Morrison - at least with respect to criminal statutes - overstates the role of federalism in demarcating the authority of the national and state governments. The article argues that it is a misguided view of federalism that the federal government somehow invades the sovereignty of the states by pursuing criminal prosecutions for certain types of conduct already subject to prosecution by state and local authorities. The source of that misunderstanding is the Supreme Court's broad language in Lopez and Morrison asserting that matters traditionally viewed as "local" - including the prosecution of violent crimes normally brought in state and local courts - are reserved in some way from regulation by the national government. Under this approach, federalism becomes not just an aspect of constitutional analysis, but also a new type of defense in federal prosecutions. The article analyzes decisions of the lower courts imposing an independent federalism limit on prosecutions that are not, according to the judges, of sufficient national interest. This misuse of federalism is, in reality, a new form of supervisory power to control prosecutors through a flawed application of federalism.