According to Justice Breyer in Comstock, Congress has the power to create a statute that “is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others”

In other words, if Congress has the power to create the federal criminal law, they also have the power to do what is “necessary and proper” to deal with those crimes–such as punishing the violators. Before getting into what a federal crime is, in this post I seek to systematize what the original “federal authorities” were that “permit[ted] Congress to create federal criminal laws” as they existed in 1789.

I think these authorities can be lumped into four categories.

The first category deals with Congress’s clearly enumerated powers.

• “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”
• “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
• “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures”
• “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States”
• “To establish Post Offices and post Roads;”
• “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
• To establish “uniform Laws on the subject of Bankruptcies throughout the United States”

For example, Congress could create a crime to punish someone who counterfeits security, or messes with post offices, or violates patents, or doesn’t pay taxes. The commerce clause fits in this category not its modern inception–where it can mean just about anything–but according to its original meaning. If some bandit interfered with the flow of goods travelling from New York to Pennsylvania, Congress would have the power to pass criminal laws that are necessary and proper to effectuate its power to regulate interstate commerce. I will even grant something like the Mann Act inclusion in this category, because it involves something (white slaves in this case) crossing state lines. I will leave aside the moment whether Congress has the power to criminalize the growing of wheat on a farm (Wickard) or pot in your backyard (Raich).

The second category deals with Congress’s authority over war and the armed forces:

• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces;
• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

These provisions are the basis for the original Article of War and later the Uniform Code of Military Justice. Congress can punish someone who fails to comply with the rules created to regulate the army, navy, militia, etc.

The third category deals with Congress’s authority over certain powers as the sovereign within the Law of Nations:

• “To establish an uniform Rule of Naturalization”
• To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And
• The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
• To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
• Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
• The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

These powers discuss the sovereignty of the United States Federal Government. Congress would thus have the power to criminalize those who break the laws of naturalization (wink wink Arizona), make all criminal laws in the District of Columbia and other federal properties (not states). In perhaps the clearest delegation of powers, Congress can make laws punishing piracies and felonies on the high seas that violate the law of nations.

The fourth category is interesting. These are limitations that the Federal Constitution imposes on the states. Theoretically, the Federal Government could criminalize these activities, and punish the states for their violation, though I’m not quite sure how that would work:

• No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
• No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
• No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

I suppose judicial review and an Article III smack on the wrist is the only way to punish states for violating these principles.

These are the four categories of Federal Authority under which the Congress in 1787 had the power to make federal crimes. At some point, Congress started to pass laws not in these 4 categories. This is the question I seek to answer in my work-in-progress titled Original Crime.