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Fake Federalism

On October 24, 2011, in federal, by John Payne

On Friday, the Senate rejected Sen. Jim Webb’s proposal to create a commission that would examine America’s criminal justice system at all levels and recommend changes that would make law enforcement more equitable and cost-effective. The opposition offered a rather surprising argument:

Two Republican senators, Kay Bailey Hutchison of Texas and Tom Coburn of Oklahoma, spoke against the amendment, saying that allowing a federal commission to examine state and local criminal justice systems would encroach on states’ rights and that the commission’s $5 million budget should be used for other purposes.

Hutchison said studying the federal system is within Congress’ powers but including state and local justice systems “is an overreach of gigantic proportions.”

“We are absolutely ignoring the Constitution if we do this,” Coburn said.

I fully support returning the federal government’s police powers to their constitutional bounds, but Coburn and Hutchison appear to have very selective interpretations of what the Constitution allows. Both support the federal government’s assault on state prerogative when it comes to medical marijuana. In fact, Coburn added a section to a Senate bill in 2007 that expanded the FDA’s power to let it ban medical marijuana nationwide. Perhaps in some parallel universe a non-binding investigatory commission represents a constitutional “overreach of gigantic proportions,” while sending federal agents to kick down the doors of state-approved medical facilities is A-okay, but in this universe, only lunatics and liars can hold those beliefs simultaneously.

Furthermore, I can’t turn up any evidence that either Coburn or Hutchison has made so much as a peep about the federal equitable sharing program, which effectively federalizes asset forfeiture law. If a local law enforcement agency wants to avoid their state’s asset forfeiture laws because they provide property owners with greater due process protections, they can request the federal government to adopt the forfeiture. This is now common practice across the country, and it is a massive usurpation of state police powers. If Coburn and Hutchison are serious about limiting the federal government to its constitutional roles, they could demonstrate it by introducing a bill to end the equitable sharing program.

I’m not holding my breath.

Link via Radley Balko.

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