I’m with Ilya Somin. And I’ve made this point before.

It’s nice that Fred Thompson is writing about federalism and the overcrowding of federal prisons. But if he isn’t even going to mention the drug war, which has done more than any other federal policy to put bodies in jail cells, then it’s hard to see these missives from him as anything more than posturing.

Start making federalist critiques of the Controlled Substances Act, the Raich decision, and federal raids on medical marijuana dispensaries in states where they’re legal, senator, and we’ll start taking you seriously when you talk about federalism.

And I’m not just saying this because the drug war is a pet issue of mine. It is the test of a true federalist. Remember, Raich wasn’t just about medical marijuana. It was about whether the Supreme Court had the courage of it’s Lopez federalist convictions. It didn’t. Drug war fanaticism won out (thanks to Justices Scalia and Kennedy), and the Lopez revolution died in its infancy.

As a Washington Post editorial gleefully noted, it was because of the Raich–which held that even someone who grows marijuana in their own home for their own use has affected interstate commerce enough to merit federal regulation–that, in a case that came a few weeks later, the EPA could tell the state of Texas that it wasn’t allowed to permit a hospital on a site inhabited by an endangered species of eight-of-an-inch cave-dwelling bugs that live only in Texas. Raich wasn’t just a case for pot smokers. Raich killed constitutional federalism.

Also, Ilya’s right in his debate with Orin Kerr over the Unlawful Internet Gambling Act. The law updated the Wire Act (which made it a federal crime to place wagers over the wire) to apply to Internet gambling. So yes, it did create a federal law against Internet gambling (though DOJ officials thought it redundant).

As for Kerr’s point about the states being unable to enforce the law on their own, I guess I just don’t buy it. Many states can and do prohibit things other states make legal. And in today’s economy, nearly every transaction could be viewed from a broad enough perspective to make an interstate commerce discussion relevant. I don’t know why the federal government needs to get involved in helping enforce, say, Arizona’s ban on Internet gambling anymore than it needs to get involved in helping enforce Alabama’s ban on sex toys. I’ll grant that Internet gambling’s interstate effects are more immediate, but if sex toys are banned in Alabama, I doubt the vibrators sold there illegally are also manufactured in Alabama. If federal intervention is necessary to help states uphold Internet gambling, then federal intervention is necessary to help them uphold just about any product or service they want to prohibit.

If states really want to ban Internet gambling, they should make it a crime on the user end, as Washington State has done (rather infamously). Or go after ISPs for not blocking access to gambling sites. They’ll get a lot of flack for it (from people like me), but I just don’t think it’s true that the states can only ban Internet gambling with the federal government’s help.

Also, what if a state wanted to legalize Internet gambling? Then whose law does the federal government expend resources to help uphold? Looks like we’re right back to the medical marijuana issue, where the feds are deciding which state laws are “right” and which ones are “wrong.” And of course, the feds usually decide that the states granting more individual freedom are in the wrong.

Fair-weather federalism is pretty easy. It’s supporting the states’ rights to pass laws you don’t agree with (so long as those laws are constitutional, of course) that separates principled people from what I’ll call “Frederalists.”

This entry was posted on Sunday, July 29th, 2007 at 10:38 am by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.