have gone well beyond it. And, again, in one of the two carjacking cases, Justice Scalia in dissent was complaining that the majority completely ignored the notion of narrowly construing the statute as they ought to have done.

Ultimately, creating Federal statutes for crimes that should properly be brought at the State level results in bringing and increasing the police power of the Federal Government. As the Lopez case said, there is no general police power in the Federal Government. The Congress has legislated well beyond any of its powers under the Constitution. There is no clear connection between the Commerce Clause and many of these criminal statutes.

What the Congress is getting itself into with the police power are moral questions because the police power is used to shape the morality of a community. If you want to live in Las Vegas, where prostitution is legal, gambling is legal, fine, move there. But if you want to live in a more conservative State where prostitution and gambling are illegal, you can go to that State. Those are political, democratic, moral issues that local majorities ultimately decide on. When you take the police power and move it to the national level, what you have guaranteed is that you will generate more political divisiveness over crime at the national level. For instance, we know that supporters of abortion rights got the Congress to pass the FACA statute, the Freedom of Access to Clinics Act. We also know over the last couple of years that there has been the attempt to get a criminal statute on partial-birth abortion.

Will the Federal Government's policy on criminal law as regards to abortion affect every congressional and Presidential race? Will it turn on who is in the Executive Branch to decide what is going to be the policy of the Justice Department in using its criminal powers in the area of abortion? Or shouldn't this be a matter that is left to the States?

Ultimately, in the early 1980's, that bill that I mentioned, the proposed Federal Criminal Code, which was cosponsored by Senators Strom Thurmond and Edward Kennedy, went down to defeat for totally extraneous reasons—that is, it was a strange alliance between the Moral Majority and the ACLU that ultimately killed the bill.

Unfortunately, when the bill was being considered, a bill of about 500 pages, most of the debate occurred over procedural matters. But of all the 500 pages, most of it concerned substantive criminal law. When I testified on that bill in a House committee and I asked about certain provisions in theft and other areas, the response from the staff was, well, we really don't know what those statutes do because the person who drafted those statutes has left.

Some of the things that would have been criminalized in that bill were amazing. The House bill would have turned a normal accident into a murder if it resulted in death. It would have made corporate executives in this country guilty of murder for accidental deaths in some of their businesses. Sexual conduct between Members of Congress or the Executive Branch and staff members would have been made a felony.

The consequences of many provisions in that bill were little understood. Fortunately, that bill died. Unfortunately, many parts of

is how we have gotten to the point where the Federal police power is so extensive and dangerous, even through prosecutors don't use all the powers of Federal criminal law. The fact is we are not just talking about courts and prosecutors. We are talking about investigation. We are talking about the fact that there are people on the payroll who have to justify what they are doing. There are between 100 and 200 Federal police agencies in this country that have the power to investigate. Whether or not their cases ever result in a prosecution, they can generate grand jury investigations that cause people to have to endure investigation for several years at a cost of several hundred thousand dollars in attorney's fees, only to find out that there really was no case after all. Although there are abuses at the State level, that kind of abuse simply can't happen in State cases because there are other checks. You could never spend the same kind of money in defending typical State cases. Thank you for listening to my statement.

Chairman THOMPSON. Well, thank you very much. It is hard to know where to start. I could talk for a long time about all these issues.

I am really amazed, as I think about what Mr. Lefcourt said, the confluence of opinions and philosophies and so forth. Everybody who deals with this, whether it be people that have to do with State prosecution, the defense, people concerned about civil liberties, people concerned about the concentration of too much power in the Federal Government, all agree, seem to agree on something that is totally losing in terms of the battle. It really, I think, gives hope that maybe we can do something about it.

We had a hearing yesterday on federalism with regard to the civil side of the ledger. We have got a preemption bill that is, I think, in many respects very much comparable to what you are talking about, Mr. Lefcourt. It requires the Congress to, first of all, acknowledge what it is doing. If it is going to preempt in a civil situation, then it has to then state why. It doesn't go into quite as much detail as probably it should. Then it does an assessment at the end of the year as to the cumulative effect of all of these preemptions and so forth.

But it is even more important in the criminal area because what you have in the criminal area that you don't have in the civil area is what you have in the criminal area in general. I mean, it is coercive power of government which makes it much more significant. Professor Baker, you point that out. Only 5 percent of the prosecutions are Federal. Many of these laws that we are passing are not being used. They are strictly window dressing out there for somebody to pick up-they pick and choose. But your point is even though that is the case, what is happening has detrimental effects in terms of the presence and the power of the Federal Government, that it has tentacles perhaps that we don't see in some way. Could you elaborate on that somewhat?

Mr. BAKER. Well, the way I use

Chairman THOMPSON. What harm is it doing? If we don't haveif it is such a small percentage and we don't use what is happening, anyway, what harm does it do?

Mr. BAKER. Well, you forget that laws, as you well know, can be used to threaten people as well as actually using the laws for pros

ecution. You certainly know from your experience that when things get testy between a Federal prosecutor and the defense, there is often a threat of prosecuting for obstruction of justice or other similar charges.

But let me just tell you what I tell the opening day to the criminal law class. I point out and I say, look, you may not realize it, but everybody in this room is indictable for something. And they don't believe that initially. And then I ask, well, who has ever been a salesman in here, or saleswoman? Have you ever taken anybody out to lunch, somebody who was about to make a purchase that you wanted their company to make? And, of course, somebody has done that.

I have said, well, did you realize that technically what you have done violates the Federal bribery statute? And, of course, it is not that anyone is going to be prosecuted for that act. But the difference at the local level is that State prosecutors have enough good sense not to get into that stuff. They don't have time and if they did make such a case, they would be laughed out of court.

Federal U.S. Attorneys don't have the same constraints. Some of the theories put forward by the Justice Department are that ludicrous. There is one case, the Kosminsky case, in which Justice O'Connor pointed out that the Justice Department theory on what constituted "involuntary servitude" would have made it a Federal criminal offense for a parent to threaten to withhold affection from a child who wanted to leave home. The government admitted that at oral argument.

You get some very bizarre theories when Justice decides that the defendant is a bad actor and that they have to get him somehow. Chairman THOMPSON. Mr. Lefcourt, how much in human society today remains untouched by potential Federal criminal statutes? I mean, is there any criminal activity today-and, Professor, you, too. Is there any criminal activity today that has not been covered now by Federal law that you can think of?

Mr. LEFCOURT. It is just amazing. Even what used to be regulatory solely, a whole host of them in the securities field, in the environment field, in employee pensions, in welfare plans, in employing of immigrants, there is now a criminal component in all of these areas which used to be strictly regulatory. And it is hard to imagine something that the Feds can't prosecute.

As a matter of fact, of course, you know about the Federal mail and wire fraud statutes, which people sometimes jokingly equate to the old Soviet Union's crime against the State, whatever it means, that through the Federal mail and wire frauds, there is just about-there is almost no activity that Federal authorities can't grab a hold of if they want it.

But I would add to some of the things that the professor said in terms of the duplication and waste of tax dollars.

I do mostly white-collar criminal defense work, and it is almost a typical scenario that I am worried at the same time about the local authorities and the Federal authorities, and they are both conducting investigations into a whole slew of local issues, whether it be real estate transactions in the city of New York or environmental stuff or Medicaid. They both are on top of it and have juris

Chairman THOMPSON. Usually Federal, usually based on wire or mail fraud?

Mr. LEFCOURT. Correct, but there are specific statutes in some of these areas as well. And the other thing that is really terrible about it is the effect on local law enforcement because when there is a high-profile case-and I hate to bring it down to this level, but you know that the turf wars exist, and how when there is an important case that has received a lot of attention, both the U.S. Attorney in the area, the district attorney, and maybe some other State authority are all trying to grapple for that prize.

Chairman THOMPSON. Mr. Dorso, how does it make people in the State level feel when the implication is that you are not capable of dealing with a carjacking case?

Mr. DORSO. Well, certainly, Mr. Chairman, we know we are capable of doing it, and that is the frustrating part about watching you folks do what you do.

Chairman THOMPSON. And your association that you have there, what is the group that you are on?

Mr. DORSO. National Conference of State Legislatures.

Chairman THOMPSON. Yes, on the Justice side. Do you ever talk about these issues and what the Federal Government is doing, the conflicts or the things they are doing they should not be doing? What part of it seems to be most disturbing from a State and local standpoint?

Mr. DORSO. Well, yes, we do talk about it. I suspect the No. 1 concern is the Tenth Amendment and the usurpation of States' rights. But I think second of all, and probably my colleagues feel the same, is the unintended consequences that you talked about yourself previously. The tentacles of what happens reach so far into the State and local government, talking about as an example, someone mentioned mandatory sentencing. Well, then that starts a whole ball rolling, and then we end up with mandatory sentencing at the State level because it is politically really good because the two Senators from North Dakota supported that, so we are going to do it at the State level. And we push that down on our district judges, and now we get prisons, and as an example, our corrections budget has doubled in the last 4 years.

Chairman THOMPSON. These decisions are made at your level, though. You make those decisions as to the trade-offs about sentences versus prisons and taxes.

Mr. DORSO. You are right, Mr. Chairman.

Chairman THOMPSON. And that is something the Federal Government doesn't have to do.

Mr. DORSO. But the professor pointed out, then if you don't, then it becomes a shopping mechanism. What is better-go to the State district court or go to the Federal district court? Who wants to get the credit for this big drug bust?

The intended consequences are those that come about because you have done something, we are going to react one way or another because we either get pressure from local district attorneys or whatever, or the judges come in and they say, hey, we should pass some of the mandatory drug sentencing because we don't want all of these people bringing themselves to our court, we would rather have them over at the Feds.

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Chairman THOMPSON. Professor Baker, you write about the confusion with the power under the Commerce Clause with police power, and I think you are absolutely right about that. But there also seems to be confusion that runs throughout our court system. They are buying off into that, and now the Lopez case came about, but we re-passed that law making the allegation that it is interstate commerce activity.

Is there any hope in terms of the judiciary, do you see anything there in terms of the difference in the trend? And is it true from a constitutional standpoint that all we have to do is make some allegation of Federal interest or interstate commerce without actually having to prove it presumably in the criminal case that that particular gun did travel in interstate commerce? What is the state of the law, and how do you see it developing?

Mr. BAKER. Well, since the Lopez case has come out, the lower Federal courts really haven't taken it very far. A few district courts have. The one exception is the Fourth Circuit which ruled on a statute that has a criminal and a civil side. It ruled in a civil case, and that issue presumably will be decided ultimately by the Supreme Court.

The problem in the Supreme Court, I think, as reflected in the Lopez opinion, is that some of the Justices-Justices Kennedy and O'Connor in particular-are concerned to distinguish between the criminal area and not to repeal the changes that came about in the Commerce Clause jurisprudence in 1937. And I think there is a way to distinguish the criminal area from non-criminal Commerce Clause matters, and I think there is something in Lopez that provides the basis for doing so.

Lopez mentions that the defect-one of the defects in the statute-was that it failed to demonstrate on a case-by-case basis that the jurisdictional elements were, in fact, met. Now, when Congress re-passed the statute and made findings, that may have helped a little bit, but it doesn't deal with the case-by-case issue. Earlier Mr. Meese mentioned that I was going to propose possible legislation, which in concept I have run by Mr. Meese. It is based on making a distinction between the symbolic, which Judge Merritt was talking about, and the really practical aspects of a prosecution.

What I was suggesting to Mr. Meese was that Congress might consider passing a general statute that applies across the board to all criminal statutes and provides that the prosecution has to prove the jurisdictional elements, not only as part of the case before the jury, but separately to the judge. This would make jurisdiction a legal question to be addressed in every case.

That would allow judges to kick out a lot of these cases that they would love to kick out. For instance, the district judges in Richmond wanted to kick out a lot of these gun cases, but they couldn't go along with the defense theory on unconstitutionality.

What you need to do is give them a statute where they can kick out cases that don't belong there, yet without ruling the statute unconstitutional. I think that the big struggle for the Federal courts is that very few of the judges are willing to say that Congress has gone too far under the Commerce Clause because they don't want to threaten everything that has happened since 1937. A statute