imported post
I agree, there is a huge difference between interstate and intrastate commerce. And, being a Constitutional fundamentalist, and advocate of the "plain meaning rule", I view Congress' power to regulate interstate commerce as only affecting actual transportation of goods and services across state lines.
But, in the late 1920's, or early '30's (it's been a long time, and I forget) there was a guy in North Dakota or Montana or some such God forsaken place, engaging in farming for self-sufficiency. He, his family, and his animals were fed entirely from the produce of his own small farm. He grew wheat from which he made bread and fed his chickens. The United States had passed a law imposing an excise tax on wheat production. The farmer was charged with the crime of willfully failing to pay the excise tax, and defended on the ground that he didn't owe the tax, as nothing he did involved interstate commerce. The case went to the U.S. Sup. Ct., which announced that, because the farmer grew his own wheat from which he made his own bread for his own consumption, entirely within the boundaries of his own farm in his home state, he was not buying bread products in interstate commerce, and his failure to engage in interstate commerce affected interstate commerce, and he was therefore subject to regulation.
I can't remember the cite to that case, but it's one of those old standards that every law student is required to read and analyze. It's sort of a "why is that on the news" thing, because the case is obviously bonkers. Yet, it has not only not been overruled, the "affecting interstate commerce" rule has been expanded. Everything everyone does nowadays "affects" interstate commerce, according to the U.S. courts.
The U.S. could be reigned in, perhaps, if Congress were to pass a law clarifying that only goods and services actually passing in interstate commerce are subject to regulation, but there are so many other laws already there making use of that provision. The National Firearms Act, the Omnibus Crime Control and Safe Streets Act of 1968 (includes the Gun Control Act), for example.
Here's the statute that authorizes removal of cases initiated under state law against federal officers. This, to me is like the "Beware of Dog" sign issue. If you have a sign like that, and the dog actually bites someone, then that sign (or doormat) will be used as evidence that you knew the dog was vicious, and that you are therefore liable for having negligently failed to restrain the vicious dog. This statute is evidence that the U.S. knew perfectly well that its agents were going to be violating local law including the commission of crimes, and that's why it enacted this "get out of jail free" card.
The problem is that individual congressmen, who care principally about maintaining their fiefdoms, can be "gotten". Everyone has violated some law somewhere, or can at least be made to look bad. If Patrick Henry had George III sitting in the City of Washington instead of London, while making his speeches in Richmond, he might have been a bit more circumspect. Rome ceased to function as a republic precisely for this reason. Individual senators can be "gotten".
28 USC Sec. 1442 01/08/2008
-EXPCITE-
TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
PART IV - JURISDICTION AND VENUE
CHAPTER 89 - DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS
-HEAD-
Sec. 1442. Federal officers or agencies sued or prosecuted
-STATUTE-
(a) A civil action or criminal prosecution commenced in a State
court against any of the following may be removed by them to the
district court of the United States for the district and division
embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or
any person acting under that officer) of the United States or of
any agency thereof, sued in an official or individual capacity
for any act under color of such office or on account of any
right, title or authority claimed under any Act of Congress for
the apprehension or punishment of criminals or the collection of
the revenue.
(2) A property holder whose title is derived from any such
officer, where such action or prosecution affects the validity of
any law of the United States.
(3) Any officer of the courts of the United States, for any act
under color of office or in the performance of his duties;
(4) Any officer of either House of Congress, for any act in the
discharge of his official duty under an order of such House.
(b) A personal action commenced in any State court by an alien
against any citizen of a State who is, or at the time the alleged
action accrued was, a civil officer of the United States and is a
nonresident of such State, wherein jurisdiction is obtained by the
State court by personal service of process, may be removed by the
defendant to the district court of the United States for the
district and division in which the defendant was served with
process.
-SOURCE-
(June 25, 1948, ch. 646, 62 Stat. 938; Pub. L. 104-317, title II,
Sec. 206(a), Oct. 19, 1996, 110 Stat. 3850.)
