Imagine if every judge did this

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Imagine if the federal government indicted someone for a victimless crime that in no way affected interstate commerce or any other legitimate federal interest, but no Article III judge would hear the case.

That would be the situation if every federal judge in the country were to do what U.S. District Court Judge J.P. Stadtmueller appears to be doing. According to an Aug. 23 article in the Milwaukee Journal Sentinel, Stadtmueller has stopped taking new criminal cases and is recusing himself from those that were already assigned to him.

The article speculates that the move is the result of a spat with the U.S. Attorney’s office over whether Stadtmueller was biased against them in a firearms case. It also suggests that he objects to the prosecution of low-level drug, gun and child pornography cases in federal court.

If that’s true, good for him; I wish every federal judge in the country would follow suit.

Wisconsin, like every other state in the union, has laws that prohibit the distribution and possession of controlled substances. It has laws prohibiting the possession of firearms by felons. And it has laws prohibiting the possession and distribution of child pornography.

Yet Congress feels the need to make a federal crime out of every garden variety criminal activity imaginable. And the Department of Justice feels the need to prosecute such activity in federal court, rather than leaving it to the states to prosecute these cases.

It is understandable why Congress passes such laws; they get to wave the bloody shirt for their constituents and talk about how tough they are on crime. The federal carjacking statute, for example, was passed in response to one particular crime in Maryland, in which the victim got trapped in the seat belt and dragged behind the car.

The fact that the perpetrators were prosecuted in state court and given life imprisonment was no bar to Congress feeling the need to “do something”; they made it a federal crime anyway.

What is incomprehensible is why the executive branch prosecutes crimes that could, and should, be handled in state court.

As then-Chief Justice William H. Rehnquist warned in 1998: “The number of cases brought to the federal courts is one of the most serious problems facing them today. … Over the last decade, Congress has contributed significantly to the rising case-load by continuing to federalize crimes already covered by state laws. … The trend to federalize crimes that traditionally have been handled in state courts not only is taxing the judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system.”

I once represented a petty career criminal who shot a cat. Under the mandatory federal sentencing guidelines, he was sentenced to 21 years in prison. Not for shooting the cat, but for being a felon in possession of a firearm.

The case made national, and even international, news. I can still recall trying, with limited success, to explain to a reporter in Germany that he did not get 21 years in prison for shooting the cat, and was in fact not charged with killing the cat, but with possession of the gun he used to shoot the cat.

Imagine a country in which cat killers are charged in state court with cruelty to animals, and only cases implicating a federal interest are prosecuted in federal court. If every federal judge in the country were to follow Judge Stadtmueller’s lead, perhaps the proper balance between state and federal authority could be restored. Imagine … the Tenth Amendment to the U.S. Constitution.