Legal Memorandum- Written by members of Heritage's Center for Legal and Judicial Studies, these reports give researchers the facts on hot issues in the American judicial system.
February 14, 2008
By Brian W. Walsh and Andrew M. Grossman
The scourge of human trafficking is a global phenomenon.
Widely considered a "modern-day form of slavery," trafficking
occurs when the powerless "are subjected to force, fraud, or
coercion, for the purpose of sexual exploitation or forced
labor." Over the past decade, federal and state
officials have greatly stepped up their law-making and
law-enforcement efforts to punish traffickers and protect victims.
Congress, for example, passed the comprehensive Trafficking Victims
Protection Act of 2000 and reauthorized it in 2003 and 2005.  Many
of the core provisions of the existing law have proven
successful and should be reauthorized once again.
But the latest proposal to reauthorize the Trafficking
Victims Protection Act includes new criminal provisions that
would undo much of the recent progress federal and state
law-enforcement officials have made against trafficking. With very
little debate, the House of Representatives in December passed the
William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2007 (TVPRA, H.R. 3887). The TVPRA
trivializes the seriousness of actual human trafficking by equating
it with run-of-the-mill sex crimes--such as pimping, pandering, and
prostitution--that are neither international nor interstate in
The net effect of this unconstitutional federalization of
local crime would be to blur the respective lines of federal and
state authority, assert federal supremacy without providing
sufficient federal resources, and thus undermine the efforts of
state law enforcement against both ordinary sex crimes and the
local effects of human trafficking. Likewise, saddling federal
authorities with the enormous job of fighting local sex crimes
would divert them from their own anti-trafficking efforts.
The Department of Justice, which operates extensive--and
increasingly successful--federal initiatives to combat foreign
and domestic human trafficking, sent the chairman of the House
Judiciary Committee a 13 page letter in November
detailing the bill's serious shortcomings. Not only did the
House apparently disregard this letter and fail to enact any
meaningful set of the Department's recommendations, but the
chairman who received the Department's letter waived his
committee's formal consideration of the bill. The House Judiciary
Committee thus performed little meaningful oversight over the
TVPRA before it was passed. The legislation is now before the
Senate for consideration, with a vote likely before the end of the
Yet the bill is fraught with problems. Indiscriminate
federal criminalization disregards the constitutional
separation of law enforcement by federal authorities from law
enforcement that should be authorized and conducted under the
jurisdiction of state and local governments. For years, the
American Bar Association (ABA), the Police Executive Research Forum
(PERF), and similar nonpartisan organizations have cautioned
about the deleterious effects of unconstitutional federalization on
state and local law enforcement. Among other problems,
unconstitutional federalization causes great uncertainty among
both state and federal officials about the scope of their
respective investigative authority.
Even more concerning to those focused on helping
trafficking victims, the TVPRA's unconstitutional
criminalization creates the illusion that victims can count on
extensive federal involvement in fighting local sex crimes. These
unfounded and unrealistic expectations cannot possibly be fulfilled
given the lack of federal resources. Nothing could be more vital to
the success of federal efforts to aid victims of trafficking for
sex acts than to ensure that those victims trust federal law
enforcement. Much as the ABA and PERF have additionally cautioned,
the TVPRA's implicit promises will result in many trafficking
victims becoming disillusioned by unfulfilled promises,
placing less trust in federal law enforcement, and ultimately
failing to receive the federal assistance they so desperately
A broad federal role in fighting ordinary prostitution is
unnecessary and likely unconstitutional. In considering any
legislation that touches upon crimes that are local in nature and
subject to the police power of the states, Congress should always
remember the principles of federalism--i.e., the Constitution's
structural division of power between the federal government and the
states. Constitutional limitations sometimes appear to be
unnecessary obstacles to well-intentioned lawmaking. But as
would be true if this bill were to be enacted into law,
disregarding such limitations almost always undermines the same
law-enforcement goals that the TVPRA is apparently crafted to
Trafficking vs. Prostitution
Estimating the total number of trafficking victims, whether
globally or in the United States, is an inherently difficult task
that is prone to unreliable results, but the federal government has
identified approximately 1,500 victims that have been
trafficked into the United States since 2000. According to
the Federal Bureau of Investigation, the money "earned" from human
trafficking often is part of the income stream flowing into
criminal and terrorist organizations. In addition, some U.S.
citizens and legal residents travel abroad as "sex
tourists" to engage in sex crimes with minors and other
victims of trafficking in regions where the laws against such
conduct are weak or rarely enforced.
The TVPRA includes a variety of provisions addressing this
foreign and domestic trade in persons--typically women and
children--who are forced into sexual servitude. The bill would
expand the economic penalties imposed on countries whose
anti-trafficking efforts fail to meet U.S. standards, require
extensive federal reporting on the problem, and enhance the federal
government's provision of protection and assistance to trafficking
victims. The bill purports to increase federal
efforts to combat trafficking conducted outside the nation's
borders and to prevent such trafficking from spilling over into the
But the TVPRA's criminal provisions cover a much broader range
of conduct than just human trafficking, including many essentially
local acts that this nation has invariably addressed at the state
and local levels. At most, such conduct is only indirectly
related to international trafficking.
Most dramatically, the TVPRA would create a new federal offense,
"sex trafficking," encompassing common prostitution-related
offenses. Specifically, any person who
"persuades, induces, or entices any individual to engage in
prostitution" (that is, "any sex act, on account of which anything
of value is given to or received by any person") would face large
fines and imprisonment for up to ten years. An overlapping
provision would criminalize "unlawful compelled service,"
which it defines to include "caus[ing] or exploit[ing]
financial harm or fear of financial harm" for the purpose of
"obtain[ing] or maintain[ing] the labor or services of a
person...for use in [prostitution]." Taken together, these
provisions would purportedly transform all pandering, pimping,
and hiring of a prostitute into federal crimes.
Congress must not sweep aside the long-standing authority
of state and local governments to define what immoral conduct
should be criminalized and punished. The vast majority of
communities across the United States have concluded that they
realize a wide range of benefits by criminalizing and
punishing prostitution and related conduct at the state and
local levels. Wrongdoing that is fundamentally local in nature
should continue to be criminalized, investigated, prosecuted, and
punished by the same state and local law-enforcement
authorities who each year handle 95 percent of all criminal
prosecutions across the United States. The TVPRA's criminal
provisions encompassing ordinary local sex crimes afford
insufficient constitutional respect for and deference to state
and local authority.
The TVPRA would place chief responsibility for enforcement of
these new authorities with the Department of Justice's Child
Exploitation and Obscenity Section, which it would rename the
"Sexual Exploitation and Obscenity Section." Currently, this
division investigates and prosecutes child prostitution, child sex
tourism, and child pornography and, according to those familiar
with its operations, is already overburdened. Even if its staff
were to be increased, enlarging its mandate would distract the
division from fighting child exploitation, diverting its valuable
resources toward crimes that are already under the purview of state
and local police.
Further, the TVPRA's overbroad criminal provisions would
criminalize "knowingly" making travel arrangements for those
intending to engage in "any commercial sex act." Violators would
be subject to significant fines and a sentence of up to ten
years. This may sound good, but once again the
language of the bill's criminal provisions suffers from a lack of
precision that would cause federal law enforcement to be diverted
from the worst trafficking crimes. The Department of Justice
currently focuses its efforts against "sex tourism" on overseas sex
crimes that involve children. These cases are,
unsurprisingly, highly resource-intensive. The TVPRA's new
definition of sex tourism encompasses adult travel to engage
in adult prostitution where such prostitution is legal, thus
diverting scarce federal resources from vitally important
law-enforcement efforts against trafficking and sex tourism
that involves children.
The TVPRA's provisions criminalizing inherently local commercial
sex acts are also unnecessary. Except for several counties in
Nevada, prostitution and associated crimes,
such as pandering, pimping, and hiring a prostitute, are punishable
by criminal fines and imprisonment everywhere in the United States,
including the District of Columbia and all U.S. territories. In
Virginia, for example, penalties run as high as 10 years
imprisonment and $100,000 in fines for pimping and one year
imprisonment and $2,500 in fines for hiring a
prostitute. These penalties are representative of
those imposed across the country.
Existing state and local laws banning prostitution are
diligently enforced. State and local law-enforcement officers
made approximately 70,000 arrests for prostitution-related crimes
in 2005, the most recent year for which comprehensive data are
available. By comparison, in that same year the
entire federal criminal-justice system investigated fewer than
twice that number of crimes of all types and categories.
Given the magnitude of state-led efforts to combat prostitution and
related offenses, the federal government simply lacks the
resources--including investigators, prosecutors, and judicial
personnel-- to tackle more than a small percentage of the
caseload currently handled by state and local officials.
Even the Department of Justice doubts that federal
jurisdiction over local sex crimes is needed or would be
productive. In its comments on the TVPRA, the Department states
that it "is not aware of any reasons why state and local
authorities are not currently able to pursue prostitution-related
crimes such that Federal jurisdiction is necessary."
Moreover, federal law enforcement already has the criminal laws
and other statutory authorities needed to punish traffickers
traveling between states and across U.S. borders. By the end of
fiscal year 2006, the Department had established 42 human
trafficking task forces in the United States. Each task force is
composed of a state or local law-enforcement agency, a trafficking
victim services provider, the Office of the U.S. Attorney, and
other federal investigative agencies. The members of each task
force engage in extensive collaboration to prosecute
traffickers and to identify and rescue victims.
Traffickers who violate federal statutes against involuntary
servitude or forced labor can be punished by severe fines and
up to 20 years in federal prison. If the involuntary
servitude or forced labor involves kidnapping, sexual abuse, or any
attempt on the victim's life, the maximum punishment is a life
sentence. Federal criminal law includes similar penalties for debt
servitude (peonage) and for recruiting, harboring,
transporting, or brokering persons for the purposes of committing
another offense. Of the 555 human trafficking suspects
federal prosecutors investigated between 2001 and 2005, 322 were
investigated for violations such as these of the Trafficking
Victims Protection Act. In 2007 alone, the Justice Department
opened 183 investigations and secured 103 convictions of
persons involved in trafficking adults and children.
Local pimping, pandering, or prostitution sometimes is part
of an interstate criminal organization. Such organizations move
prostitutes from city to city to evade detection and prosecution.
Prostitution may also be part and parcel of a criminal
operation that involves interstate drug trafficking or other
illicit commercial activities. In either case, the Mann Act
criminalizes and provides federal jurisdiction over such interstate
crimes involving pimping, pandering, or prostitution. As a result
of the Justice Department's increased anti-trafficking efforts, 809
persons were convicted of Mann Act violations from 2002 through
The Justice Department's efforts to combat human trafficking
extend well beyond domestic law enforcement. As just one example,
in 2006 the Department was involved in combating trafficking in 21
countries, including by providing training and education on
trafficking to forensic experts, health professionals, victim
service providers, judges, law-enforcement officials, and other
As the Department of Justice has explained, the bill's
provisions on prostitution also fail to fit within the power
granted the federal government in the Thirteenth Amendment to
prohibit slavery and involuntary servitude. Federal law
enforcers already investigate and prosecute cases of prostitution
involving severe force, often in concert with interstate and
international trafficking, that are tantamount to involuntary
The TVPRA is thus duplicative, adding redundant federal
criminal laws--and the complication of overlapping law-enforcement
jurisdiction--to conduct that is already addressed and heavily
enforced by well-understood state and local laws. Given the robust
state of U.S. criminal law on sex crimes and human trafficking, the
criminal provisions of the TVPRA cannot be likely to bolster
existing efforts to combat prostitution and related offenses.
Accountability and Effectiveness
The overbroad criminal provisions of the TVPRA appear to be yet
another example of Congress's growing habit of relying on federal
criminalization as a panacea to cure all of society's ills.
The phenomenon of over-federalization of crime undermines
state and local accountability for law enforcement, undermines
cooperative and creative efforts to fight crime (which promotes the
states' vital constitutional function of acting as
"laboratories of democracy"), and injures America's federalist
system of government.
Like existing federal criminal provisions that ignore
constitutional federalism, the TVPRA would further erode state and
local law enforcement's primary role in combating common
street crimes, thereby reducing the effectiveness and success of
local prosecutors and law enforcement. Whenever state and local
officials can blame federal officials for failure to prosecute
crime effectively--and vice versa--accountability and
responsibility are significantly diluted. Although this is
sometimes unavoidable for the limited set of crimes for which
there truly is overlapping state and federal jurisdiction,
unclear lines of accountability for wholly intrastate
crimes--including those related to prostitution-- are wholly
unnecessary and unacceptable.
Combating common crimes is a governmental responsibility over
which the states have historically been sovereign, with little
intervention from the federal government. Federal criminal law
should be used only to combat problems reserved to the national
government in the Constitution. These include offenses
directed against the federal government or its interests, express
matters left to the federal government in the Constitution (such as
counterfeiting), and commercial crimes with a substantial
multi-state or international impact.
The basic non-trafficking offenses contained in the TVPRA do not
fall within any of these categories and so are not within the
federal government's constitutional reach. For example, the fact
that prostitution may (rarely) involve interstate travel or some
other incidental interstate connection does not justify federal
involvement. In fact, the vast majority of non-trafficking conduct
that would be criminalized under the TVPRA would almost never take
place in more than one locale in a single state. Such conduct is,
at most, only tangentially interstate in nature and does not
justify additional federal intervention.
The TVPRA's prostitution-related provisions ignore recent
decades' lessons on how to reduce common crime successfully. New
York City and Boston in the 1990s and early 2000s demonstrated that
when accountability is enhanced at the state and local levels,
local police officials and prosecutors can make impressive gains
against crime. By contrast, federalizing authority over crime
reduces the accountability of local officials because they can
pass the buck to federal law enforcement authorities.
The TVPRA also runs counter to the principles of federalism in
other ways. For example, it is unclear what impact the vaguely
worded provisions of the legislation would have in those
Nevada jurisdictions where prostitution is not banned but is
instead licensed and operated under close government scrutiny.
The TVPRA would place a cloud of legal uncertainty over
jurisdictions that have chosen, for good or for ill, not to ban
prostitution outright. Whatever the merits of those
jurisdictions' choice, this is inherently a matter for local
interest and control. As compared with decisions made in
Washington, decisions made by local authorities acting locally are
far more likely to represent and be responsive to the social,
political, and law-enforcement priorities of the affected
communities. Historical rationales for
federalism--experimentation and creativity, local values and
preferences, and division of power between levels of
government--argue in favor of maintaining the criminalization,
investigation, prosecution, and punishment of this inherently local
conduct under the jurisdiction of state and local authorities.
In addition, over-federalization results in the misallocation of
scarce federal law-enforcement resources, which in turn leads to
selective prosecution. Fighting crimes as common as
prostitution, pimping, and pandering would place significant
demands on the Federal Bureau of Investigation, the 94 U.S.
Attorneys, and other federal law enforcers that would distract
them from the truly national problems that undeniably require
federal attention, such as the investigation and prosecution of
foreign espionage and terrorism.
The federal judicial system also lacks the resources to hear
large numbers of additional criminal cases. There are, for
example, only about 665 federal judges who preside over criminal
trials--a small number compared to the approximately 1,500 state
judges who preside over criminal trials in California alone.
Prostitution is a problem common to many states, so federal
involvement may seem like a good idea. To warrant federal
involvement, however, an activity must fall within Congress's
constitutionally granted powers. There are serious reasons to doubt
that the criminal provisions in the TVPRA do so.
In the course of striking down provisions of the Violence
Against Women Act of 1994 in United States v. Morrison, the
Supreme Court in 2000 affirmed the fundamental limits that the
Constitution imposes on the federal legislative power:
Every law enacted by Congress must be based on one or more of
its powers enumerated in the Constitution. "The powers of the
legislature are defined and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written."
This limitation on Congress's power to legislate is neither
arbitrary nor accidental: It was adopted to protect the American
people from the ever-expanding power of a centralized national
government. As the Court stated, "This constitutionally
mandated division of authority 'was adopted by the Framers to
ensure protection of our fundamental liberties.'"
The drafters of the TVPRA apparently attempt to rely on the
Commerce Clause to establish Congress's power to assert
federal jurisdiction over run of the mill sex crimes that are
essentially local in nature. But to fall within Congress's power to
"regulate Commerce...among the several States," a problem must not
merely be common to the states; it must be truly interstate in
nature and "substantially affect" interstate commerce.
For this reason, Congress's power under the Commerce Clause does
not include the authority to federalize most non-commercial street
crimes, whether or not they have some minor nexus with interstate
Although broader and broader readings of the Commerce Clause
during the latter part of the 20th century allowed the federal
government to regulate more and more economic activity,
the Supreme Court has set limits and rejected several recent
attempts to federalize common street crimes, even ones that
have some interstate impact. The expansive (many would say
virtually unlimited) interpretation of the Commerce Clause that is
employed to justify the creation of most new federal crimes
ignores the original meaning of the Constitution. As Justice Thomas
wrote in his concurring opinion in United States v.
Lopez, if Congress had been given authority over any and
every matter that simply "affects" interstate commerce, most of
Article I, Section 8 would be superfluous, mere surplusage.
In Lopez, the Supreme Court rejected the
government's "costs of crime" and "national productivity"
rationales for asserting federal authority over crime that is
essentially local in nature. The government argued that
violent crime resulting from the possession of firearms in the
vicinity of schools affected interstate commerce by increasing the
costs of insurance nationwide and by reducing interstate travel to
locales affected by violent crime. The government further
argued that the possession of guns on or near school grounds
threatened educational effectiveness, which would reduce the
productivity of students coming from those schools, which would in
turn reduce national productivity.
The Court explained that if it were to accept these attenuated
chains of but-for reasoning, the limits on congressional power
would be obliterated.
Congress could regulate any activity that it found was related
to the economic productivity of individual citizens: family law
(including marriage, divorce, and child custody), for example.
Under [these] theories...it is difficult to perceive any limitation
on federal power, even in areas such as criminal law enforcement or
education where States historically have been sovereign. Thus, if
we were to accept the Government's arguments, we are hard pressed
to posit any activity by an individual that Congress is without
power to regulate.
Congress's recent proposals to create a new set of federal
crimes covering prostitution and similar conduct that does not in
reality involve the regulation of interstate commerce raise
these same constitutional concerns. The TVPRA lacks the usual
legislative "findings" (sometimes nothing more than mere
boilerplate assertions of fact) that Congress often uses to
demonstrate a link, often tenuous, between a local crime and
the national economy. This puts it on weaker constitutional ground
than the statutes struck down by the Supreme Court in Lopez
and Morrison, leaving the bill without any factual or
logical basis to support Congress's power to regulate prostitution
under the Commerce Clause.
The bill's drafters have attempted to cure the serious problem
of its constitutionality by limiting its applicability only to
infractions that occur "in or affecting interstate or foreign
commerce." In Morrison, however, the Supreme Court
ruled that this sort of language is not alone sufficient to bring
an act within the scope of Congress's commerce power.
The regulated act must have more than some effect on
interstate commerce; the effect must be a substantial one,
and the connection between the regulated act and its substantial
effect may not be too attenuated.
The Supreme Court's decision in Gonzalez v. Raich,
upholding as constitutional the application of federal drug
law to intrastate growers and users of marijuana, does not alter
this analysis. Unlike in Raich and in Wickard v.
Filburn, on which Raich relies, there is no
comprehensive federal scheme (nor should there be one) regulating
all financial transactions for sexual acts. In Raich,
one state had chosen to regulate the possession and use of
marijuana in a manner that directly conflicted with the
provisions of the federal Controlled Substances Act, but no
comprehensive federal regulatory scheme, with "substantial
effects" on the national economy, depends on Congress's power to
In short, to the extent that there is interstate trade in the
providers of prostitution, that activity is human trafficking, and
it is already subject to federal criminal laws. Prostitution and
closely related offenses that are local in nature and do not
involve interstate commerce, however, likely are not.
Despite good intentions on the part of the bill's sponsors and
supporters, the current version of the William Wilberforce
Trafficking Victims Protection Reauthorization Act is problematic
because its criminal provisions aim to turn common crimes-- crimes
that are inherently local in nature and best handled at the state
and local levels--into federal offenses. This would significantly
undermine accountability by inviting officials at all levels of
government to "pass the buck" on enforcement issues, distract and
divert federal law enforcement from actual human trafficking and
other responsibilities that are inherently federal in nature,
and detract from states' ability to function as "laboratories
of democracy." Few if any gains would be realized because
prostitution and related activities are illegal in nearly all
states and jurisdictions, and existing enforcement is both diligent
Brian W. Walsh is Senior
Legal Research Fellow in the Center for Legal and Judicial Studies
and Andrew M.
Grossman is Senior Legal Policy Analyst in the Center for Legal
and Judicial Studies at The Heritage Foundation.
Show references in this report
Admin. for Children & Families, U.S. Dep't
of Health & Human Serv., Fact Sheet: Human Trafficking, Jan.
24, 2008, http://www.acf.hhs.gov/trafficking/about/fact_human.html.
Trafficking Victims Protection Act of 2000,
Pub. L. No. 106-386, 114 Stat. 1469 (2000).
L. 108-193, 117 Stat. 2887 (2003); Pub. L. 109-164, 119 Stat. 3558
Letter from Brian A. Benczkowski, Principal
Deputy Assistant Attorney General, U.S. Dep't of Justice, to
Senator John Conyers, Jr., Chairman, Comm. on the Judiciary, U.S.
House of Representatives (Nov. 9, 2007) [hereinafter DOJ
See Letter from Rep. John Conyers, Jr.,
Chairman, Committee on the Judiciary, U.S. House of
Representatives, to Rep. Tom Lantos, Chairman, Committee on Foreign
Affairs, U.S. House of Representatives (Nov. 15, 2007).
See, e.g., Task Force on Federalization of Criminal Law,
American Bar Association, The Federalization of Criminal Law
(1998), at 41 (citing and quoting a position paper by the Police
Executive Research Forum).
See Jerry Markon, Human Trafficking
Evokes Outrage, Little Evidence, Washington Post, Sep. 23, 2007
(discussing the difficulties and unreliability of estimating
the number of trafficking victims and reporting that initial CIA
estimates of the number of victims trafficked into the United
States each year were based on computer models that extrapolated
numbers derived from a review of foreign press stories on overseas
Fed. Bureau of Investigation, Human Trafficking, http://www.fbi.gov/hq/cid/civilrights/slavery.htm (last
visited Feb. 11, 2008).
Dep't of Justice, Child Sex Tourism, http://www.usdoj.gov/criminal/ceos/sextour.html (last
visited Feb. 11, 2008).
See, e.g., H.R. 3887, 110th Cong.
§§ 107, 231, 213 (2007).
Id. at § 221(f).
Id. at § 221(a)(1).
Id. at § 221(b).
See Barnes v. Glen Theatre, Inc., 501
U.S. 560, 575 (1991) (Scalia, J., concurring in the judgment)
(observing that "[o]ur society prohibits, and all human societies
have prohibited, certain activities not because they harm others
but because they are considered, in the traditional phrase,
'contra bonos mores,' i.e., immoral").
H.R. 3887, § 234.
H.R. 3887 at § 221(g).
DOJ Letter, supra n. 4, at 9.
Id. (reporting that prosecution of
child "sex tourism" cases require, among other things, "gathering
evidence abroad, bringing victims to the United States to
testify, and coordination with foreign law enforcement agencies and
foreign governments generally").
Even in the 13 Nevada counties where
prostitution is not per se illegal, it and associated activities
are heavily regulated, and violation of those regulations can lead
to criminal penalties. See Nev. Rev. Stat.
§ 201.356 (2007) ("It is unlawful for any person to
engage in prostitution or solicitation therefor, except in a
licensed house of prostitution.").
Initiative Against Sexual Trafficking,
Prostitution & Sex Trafficking, http://www.iast.net/ProstitutionSexTrafficking.htm (last
visited Feb. 12, 2008).
Va. Code Ann. § 18.2-357 (2007);
id. § 18.2-346(B) (2007).
See Initiative Against Sexual
Trafficking, supra note 21.
Unif. Crime Reporting Program, Fed. Bureau of
Investigation, Crime in the United States 2005 tbl. 69 (arrests by
State), Sep. 2006, available at http://www.fbi.gov/ucr/05cius/data/table_69.html.
Fed. Justice Statistics Resource Ctr., Bureau
of Justice Statistics, FY2005 Suspects in Investigations Initiated,
available at http://fjsrc.urban.org/analysis/ez/displays/s_freq.cfm.
DOJ Letter, supra note 4, at 8-9.
See 18 U.S.C. § 1584 (involuntary
servitude); 18 U.S.C. § 1589 (forced labor).
See 18 U.S.C. § 1581 (debt
servitude); 18 U.S.C. § 1590 (trafficking with respect to
peonage, slavery, involuntary servitude, or forced labor).
DOJ Letter, supra note 4, at 8.
Id. at 8-9.
At the conclusion of its study, the American
Bar Association Task Force on the Federalization of Criminal Law
reported that, as of 1998, the frequently cited estimate of over
3,000 federal criminal offenses scattered throughout the 49 titles
of the United States Code was certainly outdated and understated.
Task Force on Federalization of Criminal Law, supra note 6,
at app. C 94. Since 1998, these numbers have only increased. See
generally John Baker, Jr. & Dale E. Bennett,
Federalist Society for Law and Public Policy, Measuring the
Explosive Growth of Federal Crime Legislation, May 2004.
One among many possible examples would be a
person in Virginia who extorts another person in Virginia but uses
a federal facility, such as the United States Postal Service, to
communicate the unlawful threats and demands.
See United States v. Morrison, 529
U.S. 598, 613 (2000).
See William Rehnquist, Remarks on
the Federalization of Criminal Law, 11 Fed. Sent. R. 132
(1998). Counterfeiting currency and wiring proceeds of criminal
acts across state lines to avoid detection are additional examples
of crimes that are appropriately federalized.
See generally id. (quoting a report of
the Judicial Conference of the United States); cf., United
States v. Lopez, 514 U.S. 549, 587-601 (1995) (Thomas, J.,
concurring) (suggesting that the Supreme Court "reconsider [its]
'substantial effects' test with an eye toward constructing a
standard that reflects the text and history of the Commerce
TRAC Reports, Federal Judges, http://tracfed.syr.edu/index/fedstaf/fedstafindex_judge.html
(last visited Feb. 11, 2008); California Courts, State of
California, California Trial Court Roster, Feb. 5, 2008, http://www.courtinfo.ca.gov/courts/trial/judges.htm.
Morrison, 529 U.S. at 607 (quoting Marbury v. Madison, 5
U.S. (1 Cranch) 137, 176 (1803) (Marshall, C.J.)); accord
Lopez, 514 U.S. at 552 ("We start with first principles. The
Constitution creates a Federal Government of enumerated powers.");
The Federalist No. 45, at 292-93 (James Madison) (Clinton Rossiter,
ed., 1961) ("The powers delegated by the proposed Constitution to
the federal government are few and defined. Those which are to
remain in the State governments are numerous and indefinite.").
Lopez, 514 U.S. at 552 (quoting
Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).
Local, violent crime that is not directed at
interstate commerce is not a proper subject matter for federal
legislation. As the Supreme Court reaffirmed in 2000, the
"regulation and punishment of intrastate violence that is not
directed at the instrumentalities, channels, or goods involved
in interstate commerce has always been the province of the states."
Morrison, 529 U.S. at 618.
See Lopez, 514 U.S. at 555-56
(surveying the genesis and development of the Court's expansionist
view of congressional commerce-clause power starting from the New
See generally Morrison, 529
U.S. 598 (striking down § 13981 of the Violence Against Women
Act of 1994 because the predicate crimes the Act created were
beyond Congress's Commerce power); Lopez, 514 U.S. 549
(striking down the provision of the federal Gun-Free School Zones
Act of 1990 that made it a federal crime to possess a firearm in a
school zone because the provision exceeded Congress's power under
the Commerce Clause).
514 U.S. at 589 (Thomas, J., concurring). By
contrast, the express powers to coin money and punish
counterfeiting granted to Congress in Article I of the Constitution
surely do affect interstate commerce.
Id. at 564.
Morrison, 529 U.S. at 612-13.
545 U.S. 1 (2005).
Id. at 18 (stating that in order for
Congress to regulate purely intrastate activities it must first
conclude "that failure to regulate that class of activity would
undercut the regulation of the interstate market in that
Id. at 22 (finding regulation of
wholly intrastate marijuana cultivation to be "necessary and
proper" because "Congress had a rational basis for believing that
failure to regulate the intrastate manufacture and possession of
marijuana would leave a gaping hole in the CSA [Controlled
Substances Act]," a comprehensive regulatory scheme).
The current version of the William Wilberforce Trafficking VictimsProtection Reauthorization Act would undermine accountability byinviting officials at all levels of government to "pass the buck"on enforcement issues, distract and divert federal law enforcementfrom actual human trafficking and other responsibilities that areinherently federal in nature, and detract from states' ability tofunction as "laboratories of democracy."
Brian W. Walsh
Senior Legal Research Fellow
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Andrew M. Grossman
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