July 07, 2016

When should we call into question the pursuit of an expansive and powerful federal government? If you’re a Massachusetts Democrat, the answer this week seems to be, “when our friends are the targets.”

The modern Democratic Party has been built on successfully advocating for increased federal power over states, localities, markets, private institutions, and individuals.

But when that power is then turned on their friends and allies, they suddenly become tea partiers criticizing overzealous feds.

Carmen Ortiz’s office deserves much of the criticism coming its way.Professor Cunningham and I have joined in that criticism..

Here’s hoping, however, that the aggressiveness with which the US Attorney has gone after the administration of Boston Mayor Marty Walsh becomes a moment for Democrats to ponder their ability to turn the application of federal power in most policy areas into a virtue.

The expansion of the federal state has proceeded largely unabated since the New Deal. We’ve succeeded in federalizing most public policy issues.

This hasn’t happened without cause. The amendments to the Constitution are not simply a list of negatives. The 14th Amendment, which provides equal protection of the laws and national citizenship rights, very clearly states that “Congress shall have power to enforce, by appropriate legislation, the provisions” of the amendment.

The growth of federal policy has been accompanied by a rather significant increase in federal criminal statutes. The Constitution lists only three crimes against the United States: treason, counterfeiting, and piracy. In 2011, the Wall Street Journal noted that the list of federal crimes by statutes “numbered in the dozens” at the turn of the 20th century. It now stands at over 4,500, by some estimates. And that doesn’t include the many criminal penalties written into federal regulations.

Many of us looking at her indictments of Tim Sullivan and Ken Brissette wonder if they really committed a federal crime or if they were simply engaged in political behavior that the US Attorney deemed noxious.

But we live in a time when no issue is too small for a federal policy, rule, regulation, or budget. So it makes sense that behavior that raises the eyebrows of someone who wields federal power is fair game for the application of that power.

This is not a uniquely Democratic dilemma and Republicans have successfully aided and abetted in the growth of the federal government. But the Democratic Party provides the intellectual framework for an expansive state. It is thus in a tight spot complaining about how the powers of the state are being used.

Democrats who support the current administration, which has not been bashful in its forceful use of federal power, may find their complaints about Ortiz falling on deaf ears.

Consider: the Obama administration has made aggressive use of the Civil Rights Division of the US Department of Education under its redefinition of Title IX. It claimed an expansive view of what bodies of water fall under federal jurisdiction under their Clean Waters of the United States rule.

In both cases the administration redefined an existing statute to fit its expansive federal policy preferences.

US Attorney Ortiz has done the same in Massachusetts. In her two most recent indictments, she has redefined 18 U.S. Code § 1951 to fit her goal of cleaning up our ostensibly corrupt political culture.

Democrats own this. They’ve provided the framework for a great expansion of the federal state.  The prosecutions of Brissette and Sullivan might give them pause the next time they advocate for a law, rule, or regulation that empowers the feds.

Massachusetts Democratic party, Ken Brissette, Carmen Ortiz, Marty Walsh

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