Making a Federal Case

In a study documenting the total number of federal crimes within United States law, researchers have found that there has been a major increase in the definition of such offenses since the founding of the nation in 1776.

“When the country started, there were basically three crimes: piracy, counterfeiting and treason,” said former Attorney General Edwin Meese, “At the time of our [1998] report, there were some 4,000 crimes.”

Meese, who now serves as chairman of the Heritage Foundation’s Center for Legal and Judicial Studies, noted that while two centuries have passed, most federal crimes have been designated as such within the last 30 years.

Meese, along with John Baker and Congressman Louie Gohmert (R-TX), participated in a Heritage Foundation panel held on June 17 that focused on the growth of federal crime laws and the shifting of the balance of power between state and federal governments.

According to both Baker and Gohmert, the federal government has taken powers away time after time from state governments, thus resulting in too many federal laws dealing with state issues.

As an original member of the American Bar Association’s Task Force on the Federalization of Crime, Baker, like Meese, said he had been involved in federal crime counts and studies before and said the current report was based on information found in previous studies done in the 1980s.

“As of early 1983, the Justice Department put the number at 3,000 crimes and we’ve worked off that figure,” said Baker. [They] did a hand count of 27,000 pages in the US Code. No one since then has [undertaken such a tally].”

After updating the new count of how many federal crimes there currently are, Baker said the research’s findings show an increase from the 1983 study. “The conclusion we come to, as of this date at least, [is that] we have roughly 4,450 crimes,” he added.

According to Baker, one of complications a researcher runs into while counting crimes within new legislation is that statutes created by the federal government may contain multiple crimes within the texts, and oftentimes do. “One statute in particular in the last eight years was enacted right after [September 11] It contains 60 crimes,” Baker observed.

In order to make sure the study’s current count of federal offenses was as close to perfect as possible, Baker said the research team searched all legislative documents for the words “fine” and “imprison” in order to get an accurate picture of how many federal crimes have been enacted since the last count.

Unfortunately, according to Gohmert, many Senators and U.S. Representatives do not search for new federal laws contained within the texts of bills and acts as thoroughly as they should, and in the end pass legislation that winds up taking away power from state governments.

To prove his point, Gohmert, who is the only former judge on the Judiciary Committee and who is currently serving as the ranking member of the U.S. House Subcommittee on Crime, Terrorism and Homeland Security, pointed to one instance when he spoke with one of his fellow House members about a proposed bill.

According to Gohmert, there was a penalty within the bill the Congressman was trying to pass and was shocked not only by Gohmert mentioning his concern over it, but also by Gohmert even reading the document at all. He said,

“I went to him and I said, ‘Look, I don’t think this is doing what you really want it to do, and he said, ‘You read the bill?’ and I said, ‘Yeah, and as a former judge I’d have a real problem interpreting the bill, and I don’t think this is what you want.’”

However, Gohmert said one of the reasons politicians pass legislation that depletes the power of states is to not be considered “soft on crime.” In order to be seen as proactive and looking out for the security of the American people, members of congress present bills that contain more statutes turning state laws into federal ones. This proactivity, in turn, tends to pay off at the polls and get politicians re-elected.

“The power in Washington is like Tolkien’s ring,” said Gohmert. “Really good, wonderful people get the ring, and it changes them and they can’t put it down, they can’t let it go, they gotta fight and do whatever it takes.”

“The only people who want the federalization of crime are members of Congress, members of the Justice Department and members of the White House staff. Other than that, anyone who knows about criminal laws says ‘this is crazy.” And we attempted to try to marshal the arguments that would demonstrate the people that this is unnecessary and maybe dangerous,” Baker said.

“You’re worried about abuse of power on the left of search and seizure, etc. Well, what’s the basis for search and seizure? Probable cause. Probable cause of what? That a crime was committed. Well, the more crimes you enact, the more basis you create for probable cause,” Baker said.

“Who would have thought that the way the genius of the Constitution set things up that the judiciary would prevent the overzealous expansion of criminal laws? But if you look at the mentality of so many, and particularly the majority, on the Supreme Court right now, they want more power. How do they get more power? If Congress passes more laws giving the Justice Department more power, because then that gives them the impetus to take control over yet another area. So the check and balance is thwarted by everybody being a bit too overzealous,” Gohmert said.

According to Baker, sometimes things viewed as a federal offense are just an illegality. “People have come to the notion that if it’s wrong, it’s got to be criminally punished, and that’s complete nonsense. There are all kinds of things that are illegal but not criminal, and if criminal, do not necessarily have to be federally criminal,” Baker said.

“That’s where our real problem is, we don’t understand the difference between violation of a regulation and a crime,” he added.

Both panelists said they believed the imbalance of the checks and balance system would continue to grow if certain things are not realized about the system.

“The more that the American people come to accept that any federal agency with power is somehow a police power, we are, piece by piece, building the police state that the left worries about. Both left and right ought to be worried about the expansion of federal criminal law if we value our liberty which the Founders understood meant leaving general police powers at the local level,” Baker said.

“You want to know how you can get Congress to quit criminalizing so much? It’s gotta be you,” said Gohmert. “Too many people want to get re-elected and if you make clear that the way to do that is not to criminalize things that shouldn’t be criminalized, they’re going to hear you. It’s an amazing process. When the outcry is loud enough, then the elected officials respond or they don’t get re-elected. You can have that effect by being the grassroots, the seed.”

Emily Ham is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.