Increasingly, Americans have become aware of the politicization of the FBI and its efforts to target and often terrorize the political enemies of the Biden Administration. Why is it that more people are not demanding we simply eliminate the threat by abolishing the FBI? One reason is that there is the notion that America needs the FBI to protect the nation from criminals. Is that really true? The FBI has never played a major role in law enforcement in the United States, which is handled at the state and local level. The FBI’s only criminal responsibilities is for federal crimes, but that raises the question as to why are there so many federal crimes. Was this the way it was supposed to be?
The truth is that the Founding Fathers never entrusted the federal government with the general power to criminalize behavior — called the “police power.” Only three provisions in the Constitution expressly authorize enactment of federal crimes. The Constitution’s Article I, Section 8 authorizes laws for “punishment of counterfeiting,” and to “define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” Article III, Section 3 authorizes the crime of treason. Only a handful of other constitutional provisions could be viewed as authorizing other types of crimes.
Consistent with that constitutional plan, until the Twentieth Century, there were only a handful of federal crimes. But in response to every tragic event, someone in Congress will urge a new crime be created — promising that a tragedy of that sort “would never happen again.” Those in Congress have demonstrated little respect for the limits the Constitution places on them, and government schools have dumbed down the American people so we don’t think about the danger of the federal government usurping criminal powers that states should exercise.
Similarly, the Supreme Court has failed to require Congress to legislate within the limits imposed by the Constitution. Courts find a way to discover vast authority in the “necessary and proper” clause or the power to regulate interstate commerce to create crimes or the notion of “implied” powers. Neither the Congress nor the Courts pay much attention to the Tenth Amendment, under which all “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
How bad is the problem? The American Bar Association has noted that “[s]o large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes.” According to one count made in 2015, America enforced “at least 5,000 federal criminal laws, with 10,000-300,000 regulations that can be enforced criminally.” These laws are not ignored by federal prosecutors.
The Founders would neither recognize nor countenance the modern federal criminal Leviathan that threatens the rights of Americans. American citizens should not countenance it either. And if the thousands of unconstitutional federal crimes were repealed, the need for the FBI would largely vanish as law enforcement would be returned to the states as the Framers of our Constitution intended.