IMO it is pointless to try to parse this if we are going to use an originalist argument for half of it, and a status quo 200+ years later analysis for the rest of it.
Under an originalist analysis, the feds lack jurisdiction and authority over the VAST majority of the offenses we are talking about, including the one at bar in this case. If the Supremes are going to decide this on originalism, West Coast Hotel Co. v. Parrish get overruled and we are done way before we even get to any BoR questions.
Under a status quo today analysis, I think there is a pretty good argument that double jeopardy does apply here. Since the feds now wield a concurrent/dominant police power under the commerce clause and there is barely a vestige of state sovereignty left, acting like there isn't a applicable same elements/facts test to see if double Jeopardy applies ignores that those tests are used constantly for the very same analysis.
Under an originalist analysis, the feds lack jurisdiction and authority over the VAST majority of the offenses we are talking about, including the one at bar in this case. If the Supremes are going to decide this on originalism, West Coast Hotel Co. v. Parrish get overruled and we are done way before we even get to any BoR questions.
Under a status quo today analysis, I think there is a pretty good argument that double jeopardy does apply here. Since the feds now wield a concurrent/dominant police power under the commerce clause and there is barely a vestige of state sovereignty left, acting like there isn't a applicable same elements/facts test to see if double Jeopardy applies ignores that those tests are used constantly for the very same analysis.
