Congress' authority to enact FDR's New Deal, Civil Rights legislation and environmental protections is all rooted in the Commerce Clause, a little 16-word line in the Constitution with big consequences. Not only does the Commerce Clause undergird the vast majority of federal laws, it was the Framers' primary response to the plague of states' rights that doomed the Articles of Confederation. Despite states-rights advocates losing battles to curb federal power in the Constitutional Convention, the Civil War, ending the Depression and LBJ's Great Society, President Barack Obama's signature domestic policy is being seized as another opportunity to chip away at this fundamental pillar in America's experiment in self-governance.
Testifying before the U.S. Sentencing Commission this morning, Attorney General Eric Holderurged retroactive application of the Fair Sentencing Act, which reduces the sentencing disparity for crimes related to crack, versus powder, cocaine:
Two years ago yesterday, Dr. George Tiller was shot point-blank in his church and died instantly at the hands of a religious zealot with ties to the anti-abortion movement. "Dr. George Tiller was murdered ... by an anti-abortion extremist whose goal was to make abortion less available," noted Rachel Maddow last night. "And today, two years later, there is no abortion-provider in Wichita," where Tiller maintained his practice.
Prodded by the maxim that every challenge is an opportunity, criminal-justice reformers hoped that the recession might deliver long-sought criminal-justice reforms. As Mark Kleimanelegantly argues, there are more humane, more effective and less costly sentencing laws available, making an economic downturn seem like an ideal opportunity to improve our country's sentencing practices.
Optimistic evaluations of legislative will to enact such reforms have so far proved fodder for disappointment. There have been some positive developments, however, and the prospect for a few more seems promising.