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| Marc Levin |
Although going that far is thankfully not on the table, the dispute over federal power is central to today's impasse over voting rights and police reform legislation.
The seemingly intractable controversies over the federal role in voting and policing are often cast simply as battles between those who are more concerned about voter fraud and violent crime, on the one hand, and those who care more about voter suppression and police abuses on the other.
In fact, areas of underlying agreement on both voting and policing can be obscured by differences in what level of government should hold sway.
This federalism fissure has its roots in the founding debates between the Federalists and Anti-Federalists, and the constitutional ambiguity regarding how the Civil War and its aftermath changed the federal role.
Now, the path forward requires drawing a clear distinction between a takeover and a remedy.
The Civil War, Reconstruction and the 14th Amendment are properly viewed as resetting the balance between the federal and state governments.
Indeed, the precedent that states could not secede was forever emblazoned in blood on the national landscape, and language was added to the Bill of Rights making clear that all Americans must be treated equally, not just by the federal government, but also by state governments.
Yet no changes were made to the structure of the federal government in the body of the U.S. Constitution that sets forth its enumerated powers, and no language in the 14th Amendment addresses implementation.
If we have learned anything since, it is that this guarantee was not self-implementing.
The powers of the federal government would subsequently be enlarged, but not through the legitimating formal processes of amending the Constitution, and not in all, or even the most important, contexts for securing equal rights.
Through the Depression-era court-packing controversy[1] and subsequent decisions,[2] the U.S. Supreme Court has unilaterally expanded federal power beyond the originally enumerated powers, largely through an overly sweeping conception of interstate commerce.[3]
Accordingly, the court has enabled the federal government to regulate whether you can grow grain[4] or marijuana[5] in your backyard for your own consumption based on the merely theoretical possibility it might affect the broader market, but no one has gone so far to suggest that voting or policing constitute interstate commerce.
Yet in the current debates over voting rights and policing legislation, scant attention is paid to federalism and the degree to which Congress is constitutionally constrained.
For example, given that the U.S. Constitution expressly provides a role for state legislatures[6] in determining the manner of congressional elections, it is not clear that Congress can require independent redistricting commissions, even though it is evident that partisan gerrymandering undermines efficient representation[7] and contributes to polarization, without being its primary cause.[8]
Similarly, while groups such as the Movement for Black Lives[9] argue the George Floyd Justice in Policing Act[10] doesn't go far enough, Congress' constitutional authority to impose provisions establishing a duty to intervene,[11] curtailing chokeholds[12] and abolishing no-knock raids[13] in drug cases extends only to federal police, not the many more officers at the state and local levels.
These changes to police practices are supported by considerable evidence,[14] and numerous states[15] have recently adopted them.
The act aims to incentivize broader adoption by tying federal grant eligibility to state and local limitations on chokeholds and no-knock raids, just as federal funds have been similarly leveraged in many other contexts, from education[16] to transportation,[17] where highway funds were tied to setting the drinking age at 21.
However, legal challenges are expected, as courts have rightly held that when conditions on federal grants are either unrelated or so onerous as to be coercive, they amount to thinly veiled impermissible attempts[18] to upset the constitutional balance.
Pushing the envelope on the power of the purse will always be contested, but the remedial rationale for federal intervention to ensure equal rights has more potential to transcend politics, perhaps owing to its indisputable, if often amorphous, constitutional and historical lineage.
In the election context, few eyebrows were raised when in 2019, under former Attorney General William Barr, the U.S. Department of Justice settled[19] a lawsuit with Harris County, Texas, resulting in physical changes to make polling locations more accessible to people with mobility disabilities.
By the same token, under former Attorney General Eric Holder, the DOJ successfully prosecuted a Missouri case[20] of voter fraud in a local election.
In the context of policing reform, the federal government similarly has the constitutional power and statutory authority[21] to investigate violations of civil and constitutional rights and to seek remedies through the federal courts, though it cannot prospectively dictate state and local policing practices.
The George Floyd Act[22] would modestly enhance federal pattern-or-practice investigations of police departments, the latest of which was launched Aug. 5 in Phoenix,[23] by adding subpoena authority, which is well within both the remedial rubric of federal power and necessary in some cases to find the truth.
My organization's task force on policing found[24] that pattern-or-practice investigations,[25] which often result in settlements called consent decrees, have contributed to improved policing practices in directly impacted jurisdictions, but not necessarily to broader changes.
Nonetheless, the role of such comprehensive investigations is limited partly due to the extensive process and findings[26] that are appropriately required to start them and the resources needed to conduct them.
Since 1996, there have been approximately 70 investigations and 40 consent decrees, affecting a minuscule percentage of the nation's nearly 18,000 police departments.
Fortunately, boosting participation in the voluntary Collaborative Reform Initiative[27] offers a way to broaden the impact.
Under the program, jurisdictions can request a DOJ review along with technical assistance that helps them root out instances of civil rights violations before they reach a level that would justify a pattern-or-practice investigation.
Ultimately, consensus on federal policy's role in voting and policing may remain elusive.
But anchoring the conversation in the Constitution can lead us to the common ground of tailored remediation, rather than a federal role that either abdicates civil rights enforcement, or displaces the traditional state and local function of operating elections and police departments.
The phrase "states' rights" is a misnomer, as the purpose of the United States' grand federalism architecture is to protect the rights of people through the dispersion of power.
Remedial federal intervention can vindicate these rights, but the perils of exceeding this mandate are stark given that there is no higher check on any federally controlled system.
In this time of searing division, understanding the contours of federalism and its enduring relevance can reveal both the possibilities and limitations of federal action in delivering on the common goal and American promise of equal rights, both at the ballot box and in a police stop.
Marc Levin is chief policy counsel at the Council on Criminal Justice.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] William Leuchtenberg, When Franklin Roosevelt Clashed With the Supreme Court—and Lost, Smithsonian Magazine (May 2005), https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/.
[2] Laura Ann Grace Gallagher, The Commerce Clause and its Effect on Federalism, Political Science (2015), https://scholarsarchive.library.albany.edu/honorscollege_pos.
[3] Randy Barnett & Andrew Koppelman, Common Interpretation: The Commerce Clause, The Constitution Center (2012), https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/752.
[4] Wickard v. Filburn
, 317 US 111 (1942), https://www.law.cornell.edu/supremecourt/text/317/111.[5] Gonzales v. Raich
, 545 US 1 (2005), https://www.oyez.org/cases/2004/03-1454.[6] Thomas E. Mann, Sean O'Brien, and Nate Persily, Redistricting and the United States Constitution, Brookings Institution (2011), https://www.brookings.edu/on-the-record/redistricting-and-the-united-states-constitution/.
[7] Nicholas Stephanopoulos & Eric McGhee, Partisan Gerrymandering and the Efficiency Gap, Public Law and Legal Theory Working Paper No. 493, University of Chicago Law School (2014), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1946&context=public_law_and_legal_theory.
[8] Charles Blahous, Thinking Apolitically about Gerrymandering, Mercatus Center (2019), https://www.mercatus.org/system/files/blahous-gerrymandering-mercatus-research-v1.pdf.
[9] PBS, Movement for Black Lives opposes George Floyd Justice in Policing Act (March 17, 2021), https://www.pbs.org/newshour/politics/movement-for-black-lives-opposes-george-floyd-justice-in-policing-act.
[10] H.R.1280 - George Floyd Justice in Policing Act of 2021, https://www.congress.gov/bill/117th-congress/house-bill/1280/.
[11] Council on Criminal Justice, Duty to Intervene Policy Assessment (March 2021), https://counciloncj.foleon.com/policing/assessing-the-evidence/ii-duty-to-intervene/.
[12] Council on Criminal Justice, Chokeholds and Other Neck Restraints Policy Assessment (March 2021), https://counciloncj.foleon.com/policing/assessing-the-evidence/i-chokeholds-and-other-neck-restraints/.
[13] Council on Criminal Justice, No-Knock Warrants and Police Raids Policy Assessment (March 2021), https://counciloncj.foleon.com/policing/assessing-the-evidence/iii-no-knock-warrants-and-police-raids/.
[14] Council on Criminal Justice Policing Policy Assessments (March 2021), https://policing.counciloncj.org/updates/?_page=2.
[15] Alex Brown, Summer of Protest Prompted Spring Flurry of Policing Bills, Pew Stateline (July 27, 2021), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/07/27/summer-of-protest-prompted-spring-flurry-of-policing-bills.
[16] The Feds: Power to Provoke Change in Education, Ed100 (March 2019), https://ed100.org/lessons/federal.
[17] Merrill Matthews, Congress's Long and Sordid History Of Handing States Money With Strings Attached, Forbes (August 6, 2014), https://www.forbes.com/sites/merrillmatthews/2014/08/06/congresss-long-and-sordid-history-of-handing-states-money-with-strings-attached/?sh=6f844ea74f24.
[18] Brian T. Yeh, The Federal Government's Authority to Impose Conditions on Grant Funds, Congressional Research Service (March 23, 2017), https://fas.org/sgp/crs/misc/R44797.pdf.
[19] U.S. Department of Justice, Justice Department Reaches Agreement with Harris County, Texas, to Ensure Polling Place Accessibility for Voters with Disabilities (March 12, 2019), https://www.justice.gov/opa/pr/justice-department-reaches-agreement-harris-county-texas-ensure-polling-place-accessibility.
[20] Andrew Lunch, Pair pleads guilty to defrauding KC Election Board, Fox 4 News Kansas City (June 28, 2013), https://fox4kc.com/news/pair-pleads-guilty-to-defrauding-kc-election-board/; David Lieb, Uncle of Missouri lawmaker admits to voter fraud, The Columbia Missourian (May 14, 2013), https://www.columbiamissourian.com/news/state_news/uncle-of-missouri-lawmaker-admits-to-voter-fraud/article_d2f20962-6033-525c-99ea-6d150af878cc.html.
[21] Richard Rosenfeld, Quantity and Quality: The 1994 Crime Bill and the Role of the Federal Government in Local Law Enforcement, Council on Criminal Justice (2020), https://counciloncj.foleon.com/reports/crime-bill/iii-law-enforcement/.
[22] H.R.1280 - George Floyd Justice in Policing Act of 2021, https://www.congress.gov/bill/117th-congress/house-bill/1280.
[23] Alexander Mallin & Luke Barr, DOJ opening investigation into Phoenix Police Department, city of Phoenix, ABC News (August 5, 2021), https://abcnews.go.com/Politics/doj-opening-investigation-phoenix-police-department-city-phoenix/story?id=79294140.
[24] Council on Criminal Justice, Government Oversight and Reform Policy Assessment (March 2021), https://counciloncj.foleon.com/policing/assessing-the-evidence/viii-government-oversight-and-reform-measures/.
[25] Jacob Schulz & Tia Sewell, Pattern-or-Practice Investigations and Police Reform, Lawfare (April 30, 2021), https://www.lawfareblog.com/pattern-or-practice-investigations-and-police-reform.
[26] Tanaya Devi & Roland G. Fryer Jr., Policing the Police: The Impact of "Pattern-Or-Practice" Investigations on Crime, National Bureau of Economic Research (June 2020), https://www.nber.org/system/files/working_papers/w27324/w27324.pdf.
[27] Collaborative Reform Initiative Technical Assistance Center, DOJ COPS Office, https://cops.usdoj.gov/collaborativereform.