Federal Criminal Jurisdiction

Despite the absence of any general police power, Congress has employed various federal powers, particularly the commerce clause, the power to tax, and the postal power, to expand federal criminal jurisdiction dramatically. Both courts and commentators have expressed concern that the balance between federal and state authority has been fundamentally altered, and that federal criminal jurisdiction now greatly exceeds its proper sphere. Critics charge that federal jurisdiction extends to many cases where there is no significant federal interest, and that an overload of criminal cases places an unwarranted strain on the federal courts. The substantial overlap of federal and state law also permits the imposition of different sentences on persons who engage in the same conduct, depending upon whether they are prosecuted under state or federal law, leaving largely unfettered discretion in the hands of federal prosecutors, who decide whether to bring federal charges.

In 1995 the Supreme Court made headlines with the first decision in nearly sixty years to hold that a federal statute exceeded the commerce power. United States v. Lopez, 514 U.S. 549 (1995), held that Congress had exceeded its authority in making it a federal crime to possess a handgun in a school zone. This decision was heralded as the first step in the process of restricting federal criminal jurisdiction, but its effect has been relatively minor. Although a number of district courts initially issued rulings invalidating various federal statutes on the authority of Lopez, both the Supreme Court and the federal circuit courts responded by giving Lopez a relatively restrictive reading. Despite continued uneasiness with the increase in the number of federal criminal statutes and the growth in the federal caseload, no constitutional theory has emerged that would restrict federal criminal jurisdiction while also recognizing the interstate and international character of virtually all commerce and the need for broad federal regulatory authority in many areas. Moreover, despite support for restricting federal criminal jurisdiction from many groups, including the American Bar Association and the Judicial Conference, there is strong countervailing political pressure to continue the expansion to deal with violent offenses and juvenile crime. It therefore seems unlikely that the federal criminal justice system will shrink back to a more restricted sphere.