Federal Power over Local Law Enforcement Reform: Legal Issues
Released: 2016-07-07T00:00:00

Introduction

Several protests around the country regarding the actions of local law enforcement officers have sparked a discussion about local law enforcement and judicial practices. Concerns involve a variety of issues, including law enforcement tactics such as chokeholds and the use of military-style equipment. For example, in Staten Island, NY, Eric Garner died after a confrontation with police where an officer placed him in a chokehold. In Baltimore, MD, Freddie Gray suffered a spinal cord injury in police custody and died soon thereafter. And the police response to protests in Ferguson, MO, included the use of armored vehicles, bulletproof vests, and military-type rifles. In addition, some have criticized the relationship between prosecutors and police departments as potentially biased, noting the seemingly low rate of prosecutions of law enforcement officers for crimes of violence. For example, in Ferguson, a grand jury declined to indict the police officer responsible for the shooting death of Michael Brown; and in Staten Island, a grand jury decided not to bring charges against the police officer who placed Eric Garner in a chokehold.

Further, the enforcement of civil and criminal laws for revenue-generating purposes has received criticism for compromising the integrity of the judicial process. For example, a Department of Justice (DOJ) investigation into the Ferguson police department and municipal court found that city officials pressured the police department to maximize revenue in its code enforcement strategies and that this focus on revenue collection compromised the integrity of the city's municipal court, which used its authority to "advance the City's financial interests." Potentially animating each of these issues is a concern that such practices effectively result in discrimination against the poor or minority groups.

In response, several Members of Congress have formulated a number of proposals designed to promote accountability and deter discrimination by state and local law enforcement and judicial officers. However, because the "[s]tates possess primary authority for defining and enforcing criminal law," the imposition of federal restrictions on such entities raises important constitutional issues: namely, the extent to which the Constitution permits the federal government to regulate the actions of state and local law enforcement and judicial officers. This report will examine several constitutional principles relevant to this issue and apply them to the various legislative proposals. Before doing so, this report will first briefly survey current federal law that applies to local and state law enforcement agencies and the various types of proposals.

Federal Laws Regulating the Conduct of Local Law Enforcement

Current Provisions

As a baseline, the Constitution constrains the behavior of local law enforcement and judicial officers by protecting individual rights in a number of ways. Most provisions of the Bill of Rights are considered by the Supreme Court to be "incorporated" in the Due Process Clause of the Fourteenth Amendment and are thus applicable to the states. For example the following provisions are all applicable to state and local governments:

the Fourth Amendment's protection against unreasonable searches and seizures; the Fifth Amendment's protection from being forced to produce evidence against oneself; the Sixth Amendment's requirements that criminal trials be conducted before an impartial jury and that defendants have an opportunity to confront witnesses against them and be afforded assistance of counsel if the potential sentence includes imprisonment; and the Eighth Amendment's prohibition of excessive bail and cruel and unusual punishment.

Otherwise, many of the rules and regulations governing local enforcement and judicial officers derive from state and local laws. While the U.S. Constitution imposes a "floor" of minimum constitutional rights, state constitutions and laws can impose greater procedural restrictions on police than are required under the U.S. Constitution. However, the federal government does play a role in regulating local police behavior in several areas. First, the federal government operates various spending and grant programs that provide money to local governments and police forces and condition receipt of those funds on compliance with certain requirements. For example, the Community Oriented Policing Statute (COPS) provides the Attorney General with authority to distribute grants to state and local governments to hire officers for community-oriented policing and to purchase equipment and provide training. Similarly, the Edward Byrne Memorial Justice Assistance Grant (JAG) program awards funds to state and local governments to assist in combating crime. This funding is distributed according to a formula based on a state's incidence of violent crime and total population. The funding can be used for a number of purposes, including law enforcement, prosecution and court programs, and prevention and education programs.

Law enforcement agencies that receive funding under the JAG program are barred from discriminating on the basis of race, religion, and sex in employment practices or in connection with any program or activity funded in part or in whole by these funds. Aggrieved persons may pursue private rights of action to enforce these provisions after exhausting administrative remedies and the Attorney General may bring a civil action in federal court if a state or local government receiving funds engages in a pattern or practice of violations of these provisions. Under both the JAG and COPS programs, the federal government can enforce these requirements by revoking funding when the relevant conditions are not satisfied and may bring criminal charges against agents of state or local governments involved in bribery if the relevant government entity receives more than $10,000 of federal funds. Further, the Death in Custody Reporting Act, signed into law in December 2014, conditions certain federal grants on states reporting to the Attorney General concerning deaths of individuals in police custody.

Similarly, Title VI of the Civil Rights Act prohibits racial discrimination in programs and activities that receive federal financial assistance. Agencies can monitor recipients to ensure compliance and terminate funding for violations. In addition, private individuals can bring suit to enforce the statute's provisions.

Second, the federal government is authorized to bring criminal charges against any person who, "under color of any law," deprives a person of "rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." For example, the DOJ may bring a criminal charge against a local law enforcement officer who willfully uses excessive force in violation of the Fourth Amendment.

In addition to criminal liability for police officers who deprive individuals of their civil rights, the federal government may initiate a suit for injunctive relief against state and local law enforcement agencies for a pattern or practice of conduct that deprives individuals of their constitutional rights. The DOJ has done so on a number of occasions and has entered into consent decrees that require the agency to change its practices and procedures. For example, in 1999, the DOJ entered into a decree with the New Jersey state police that barred state troopers from relying on race or national origin in selecting individuals for routine traffic stops, required a supervisory review program of improper police conduct, and mandated the development of a management awareness program to monitor police behavior. The court retained control over the case until substantial compliance with the terms of the decree was shown for at least two years. The consent decree was dissolved by the federal district court in September 2009.

Finally, both local and state law enforcement officers as well as municipalities and local governments are potentially subject to civil liability—including damages and injunctive relief—from private individuals deprived of their rights under the Constitution or federal law. The extent of this liability, however, can be somewhat limited. Municipalities are liable only for "their own illegal acts," not the acts of their employees. Plaintiffs must show that "action pursuant to official municipal policy" caused the constitutional injury, such as where "the action that is alleged to be unconstitutional implements … a policy … officially adopted and promulgated by that body's officers," or pursuant to "practices so persistent and widespread as to practically have the force of law." Likewise, individual liability can be difficult to establish, as "[q]ualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct."

Proposals to Amend Federal Law

Following the recent focus on local law enforcement and judicial practices, a variety of potential changes to federal law have been proposed aimed at remedying police misconduct. Many proposals condition the receipt of federal funds by local law enforcement agencies on the adoption of certain policies, for example by

establishing a federal grant program providing funds for local law enforcement agencies to acquire body-worn cameras; promoting the use of special prosecutors in cases of police-related shootings or fatalities by requiring recipient of federal funds to establish procedures to appoint them; directing law enforcement agencies that receive federal funds to conduct racial bias training for employees; providing that law enforcement officers in agencies that receive federal funds who engage in conduct constituting a crime of violence be punished for the offense under federal law; conditioning the receipt of federal funds by local law enforcement agencies on the adoption of polices that prohibit racial profiling; ending the receipt by local law enforcement of military-type weapons and equipment; and authorizing the formation of task forces to deter discrimination in local law enforcement agencies.

Another category of proposals would impose requirements on local law enforcement units without a connection to federal funds. These include

making the enforcement of criminal and civil laws for the purpose of raising revenue a civil rights violation; prohibiting racial profiling by law enforcement agents (enforceable by declaratory or injunctive relief); and designating the use of chokeholds as a civil rights violation.

Constitutional Limits on Congress's Power

Federalism and Enumerated Powers

The federal government possesses only limited powers. The Constitution, "rather than granting general authority to perform all the conceivable functions of government, … enumerates … the Federal Government's powers." These specific authorities encompass a variety of areas. For example, Congress has the power to collect taxes, to regulate foreign and interstate commerce, and to declare war. When the federal government is not given power over an area, however, it lacks authority to act. In contrast, states do not need constitutional authorization to take action. The Tenth Amendment provides that those powers not granted to the federal government are thus reserved to the states and the people. States possess a "general power of governing," often referred to as the "police power," which enables them to accomplish many of the incidents of local government, such as regulating property relations, operating police forces, and establishing public schools.

Nevertheless, while the federal government is one of enumerated powers, the Constitution also bestows upon Congress authority to "make all Laws which shall be necessary and proper" to carry out those enumerated powers. While not an independent source of authority, the Supreme Court has interpreted the Necessary and Proper Clause to "make[] clear that the Constitution's grants of specific federal legislative authority are accompanied by broad power to enact laws that are 'convenient, or useful' or 'conducive' to the authority's 'beneficial exercise.'" When examining whether the clause permits Congress to enact a statute, the Court does not require the provision to be "absolutely necessary" to the exercise of an enumerated power; instead, the Court asks "whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power."

Consequently, Congress may, for example, "enact criminal laws in furtherance of … its enumerated powers;" and may "toll limitations periods for state-law claims brought in state court" in furtherance of its power to establish the lower federal courts and ensure that those courts "fairly and efficiently exercise '[t]he judicial Power of the United States.'" However, the Supreme Court has also "carried out [its] responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution" as those laws are not "proper" legislation under the clause. In other words, the Necessary and Proper Clause does not grant Congress authority to violate other constitutional principles.

One important limit on Congress's power is reflected in the Tenth Amendment. In general, Congress may not "commandeer" state governments, either by forcing them to enact certain laws or by compelling state officials to implement federal legislation.

Pursuant to these foundational guidelines, current proposals to address local law enforcement issues at the federal level must be enacted consistent with a constitutionally enumerated power or powers supplemented by the Necessary and Proper Clause; otherwise such authority is reserved to the states. At least three constitutional provisions are likely to be relied upon for support by some of the current proposals, as they are often invoked to support similar provisions in current federal law.

Spending Power

Congress's Authority to Spend

The Constitution grants Congress power under the Spending Clause to provide for the "general Welfare." Pursuant to this authority, Congress may disperse funds to states contingent on compliance with specific conditions. For example, Title VI of the Civil Rights Act of 1964 bars discriminating on the basis of race, color, or national origin in any program or activity that receives federal funds. Failure to comply with these conditions can result in a termination of funds. In addition to enforcement conducted by federal agencies or the DOJ, Spending Clause legislation can also authorize private rights of action to enforce the terms of the statute, including authorizing "private parties to seek monetary damages for intentional violations" of the underlying discrimination condition. However, conditions imposed on federal funds do not, standing alone, necessarily create a private right of action to enforce those terms. Congress must indicate its intention to do so in the underlying statute.

Congress may also, pursuant to the Necessary and Proper Clause, enact legislation to ensure that federal funds distributed to the states are properly directed toward the general welfare. Section 666 of Title 18 imposes federal criminal penalties on bribery and the acceptance of bribes by officials of state and local governments that receive in excess of $10,000 per year in federal funds. In Sabri v. U.S ., the Supreme Court upheld the statute as a valid exercise of Congress's authority under the Spending and Necessary and Proper Clauses and rejected the contention that there must be a connection between the bribe and federal funds. Because of the "fungible" character of money, the Court explained, "corruption does not have to be that limited to affect the federal interest." In other words, the federal government may bring a criminal charge under the statute even if the bribe does not specifically concern a program that receives federal funds.

These conditions can include the adoption of policies that Congress could not otherwise directly impose on states. For example, the Supreme Court upheld provisions of the Hatch Act that barred local and state employees whose position was financed by federal funds from engaging in partisan political activity. The Court explained that "[w]hile the United States is not concerned with and has no power to regulate local political activities as such of state officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed." Put another way, via Spending Clause legislation, Congress may indirectly achieve objectives it would otherwise lack authority to pursue under its constitutionally enumerated powers.

Limits on the Spending Power

This power is not unlimited, however. The Court in South Dakota v. Dole delineated several restrictions on its use. Spending power legislation must be directed to the "general welfare," and conditions attached to the receipt of federal funds must be (1) "unambiguous[]" as to the "consequences of [a state's] participation," (2) related "to the federal interest in particular national projects or programs," and (3) not barred by a separate constitutional provision.

The Court has made clear that "courts should defer substantially to the judgment of Congress" when determining if spending power legislation is properly directed to the general welfare. Whether Spending Clause legislation imposes "unambiguous" requirements appears to arise primarily in two different legal postures. First, when private parties seek monetary damages from states for violations of conditions imposed on federal funds, the Court requires the state to have "adequate notice that they could be liable for the conduct at issue." Describing conditions on federal funds as a "contract" between the states and federal government, the Court has made clear that Congress's power to impose conditions on states "rests on whether the State knowingly and voluntarily accepts" those terms. The Court has required "clear notice regarding the liability at issue" for Spending Clause legislation to authorize such suits. For example, the Developmentally Disabled Assistance and Bill of Rights Act of 1975 conditions funding for states to care for the developmentally disabled on several requirements. In Pennhurst State School and Hospital v. Halderman , the Court rejected the notion that the statute's "bill of rights" section created enforceable legal obligations on the states. In reviewing that statute, the Court noted that while the act contains several explicit conditions in various sections, the bill of rights provision lacks such language. In addition, the bill of rights' language urging that treatment of the mentally disabled should occur in the "least restrictive" setting is, at least for the Court, "largely indeterminate." As a result, under Pennhurst , the Court generally requires conditions on state grants to be made in unambiguous terms; vague terms do not suffice.

Second, states themselves may challenge the conditions imposed on the receipt of federal funds or penalties for non-compliance. However, while the Court has required "clear notice" to impose conditions such as affirmative obligation on states, it is unclear whether that requirement applies to determining the remedies available to the federal government when addressing state non-compliance. In other words, whether the acceptance of federal money imposes a particular condition upon a state may be analytically distinct from the federal government's enforcement options for state non-compliance with those conditions.

In addition, the Court has permitted conditions on the receipt of federal funds that are not strictly restrictions on the use of those funds. For example, in South Dakota v. Dole , the Court upheld legislation requiring states to raise their legal drinking age or lose 5% of federal highway funds. The Court ruled that although the "condition was not a restriction on how the highway funds … were to be used," the condition was permissible because it was "directly related to one of the main purposes for which highway funds are expended—safe interstate travel." Nevertheless, Spending Clause legislation may not be used "to induce the States to engage in activities that would themselves be unconstitutional," such as requiring states to engage in discrimination based on race.

In addition to Dole 's restrictions on the conditions attached to federal funds, all Spending Clause legislation must also comport with the Tenth Amendment. As mentioned above, Congress may not "commandeer" state governments, either by forcing them to enact certain laws or by compelling state officials to implement federal legislation. Spending Clause legislation that coerces states into participation in a federal program can violate these principles. The Court in Dole also noted that in certain situations "the financial inducements offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'" However, the Court described the threat of losing 5% of a state's federal highway funds as "relatively mild encouragement" which preserved a state's freedom to decline.

In contrast, in National Federal of Independent Businesses v. Sebelius ( NFIB ), the Court, in a fractured opinion, invalidated provisions of the Patient Protection and Affordable Care Act of 2010 that required states to expand their Medicaid programs or risk losing their current Medicaid funding. The Court rejected the argument that the new conditions were simply permissible modifications of the existing program, noting that the Medicaid expansion "accomplishes a shift in kind, not merely degree." Pointing to the requirement that conditions on funds must be unambiguous, the Court held that states could not be expected to anticipate that amending Medicaid "included the power to transform it so dramatically." The Court held that conditions on federal funds in "the form of threats to terminate other significant independent grants … are properly viewed as a means of pressuring the States to accept policy changes." While the threatened loss of funds in Dole preserved the states' voluntary choice, the threat of losing "over 10 percent of a State's overall budget … is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion." The Court characterized this condition as a "gun to the head" that left states without the freedom to decline.

Proposals to Regulate Local Law Enforcement via Conditions on Federal Funds

As mentioned above, there are a number of proposals to regulate local law enforcement entities by attaching conditions on the receipt of federal funds. Because Dole 's requirement that funds be directed to the "general welfare" is substantially deferential to Congress, and conditioning the receipt of particular funds via restrictions on the use of the funds themselves likely satisfies the requirement that conditions be related "to the federal interest in particular national projects," several of these proposals are unlikely to raise concerns regarding Congress's use of its Spending Clause power. For example, providing new funds for local law enforcement entities to purchase body-worn cameras, without a concomitant threat to eliminate some other funding stream, is unlikely to risk undue coercion of the states. Likewise, authorizing the establishment of task forces to study and identify methods of cooperation between local law enforcement officers and communities would not impose affirmative restrictions on states' use of existing federal funds and thus does not seem to implicate Dole 's principles for conditions on Spending Power legislation.

Similarly, the Supreme Court has not made clear what the "relationship" requirement of Dole must entail, other than noting that conditions must "bear some relationship" to the underlying purposes of the funds, and has never invalidated legislation under the Spending Clause "on relatedness grounds." Without further judicial guidance on the limit to this relatedness test, a number of proposals that condition the receipt of existing federal funds by local law enforcement agencies on certain new requirements appear to be sufficiently related to the federal interest. For example, one proposal would require law enforcement agencies that receive federal funds to conduct racial bias training for employees. Another would condition the receipt of federal funds on the adoption of policies that prohibit racial profiling. And yet another would require recipients of federal funds to establish procedures to appoint special prosecutors in cases of police-related shootings. In the former two cases, Congress's purpose (preventing federal dollars from being used to racially profile suspects) might be sufficiently related to its chosen means (requiring racial bias training or barring racial profiling) to pass Dole 's relatedness requirement. Likewise, while perhaps a closer question—requiring the appointment of a special prosecutor in cases where death results from the use of force by a police officer—might fare similarly, depending on the level of generality a court uses to discern Congress's purpose. If that aim is to prevent federal dollars from being used by prosecutors to refuse to enforce the law impartially against police officers, then the chosen means appears related to that end.

Alternatively, these proposals might be challenged as financial inducement from Congress that is unconstitutionally coercive. The proposals seeking to impose new conditions on federal funds provide for several different penalties for non-compliance, including the loss of up to 20% of a state's funds under the JAG program, all of its funds under that program, and all of its funds under both the JAG and COPS programs. As an initial matter, it is unclear whether the new conditions would simply be an adjustment of the original JAG and/or COPS programs. In NFIB , Chief Justice Roberts seemed to indicate that past adjustments to the Medicaid program had been permissible but concluded that the new expansion was a "transform[ation] … so dramatic[]" as to constitute a "shift in kind, not merely degree" that ran afoul of the requirement that conditions be made "unambiguously." Having concluded the conditions were not a mere modification of the program, but the enactment of a new federal program, he inquired whether the Medicaid expansion was a financial inducement that constituted coercion.

The proposals at issue here would appear to impose new conditions on the future receipt of funds under the JAG and COPS programs, although some do so by penalizing non-compliance with the loss of a portion, rather than all, of a state's funds. On the one hand, proposals to require racial bias training or bar racial profiling might be considered adjustments to the existing federal programs at issue, similar to the Medicaid adjustments Chief Justice Roberts found permissible in NFIB . Recipients of funds under the JAG program are already barred from discriminating on the basis of race, and while the COPS program does not appear to contain a similar restriction, Title VI bars racial discrimination by recipients of federal funds. Such proposals might be seen as simply implementing these requirements. On the other hand, the imposition of training obligations or the banning of specific police tactics might be considered a surprise to recipients of federal funds, as these conditions impose broader requirements than required in the past. In addition, the condition that state and local governments appoint a special prosecutor in the case of a violent crime by a police officer might also be considered a new condition unanticipated by recipients of federal funds.

In any case, even if the new conditions on federal funds are not deemed to be simple modifications, but the enactment of new federal programs, the funds at risk for non-compliance under the JAG and COPS programs appear closer to Dole 's permissible "mild encouragement" than the coercive "gun to the head" of NFIB . In NFIB , the Court explained that because of the size of the existing Medicaid program, Congress could not "penalize States that choose not to participate in that new program by taking away their existing Medicaid funding" because it left states with no real choice in the matter to refuse to participate in the new program. In contrast, here states likely retain a voluntary choice as to whether to accept these new conditions and continue receiving federal funds. The total amount of federal funds at risk if every state declined the federal conditions in Dole amounted to $614.7 million of federal highway funds, while the NFIB joint dissent noted that the federal government dispersed $233 billion in 2010 to states under the Medicaid program. With regards to the money at stake in these proposals, in FY2014 the federal government distributed approximately $280 million to states and local governments under the JAG program and slightly under $140 million under the COPS program. Together, the programs constituted approximately $420 million of federal funds dispersed to the states, a lower sum than the "mild encouragement" of Dole . In other words, due to the smaller size of the federal funds offered under the JAG and COPS programs in comparison to that of the Medicaid expansion in NFIB , states retain a real choice whether to adopt the new conditions and continue receiving those funds, rendering it unlikely that Congress has imposed a financial inducement that is unduly coercive of the states.

One other proposal would provide that conduct constituting a crime of violence by law enforcement officers in agencies that receive "federal justice assistance" is an offense under federal law. Federalizing crimes of violence by such officers might stretch the boundaries of legislation justified under the Spending Clause. As an initial matter, one might argue that such a requirement would not constitute a "condition" imposed on states in return for compliance with federal goals under the Court's test in Dole . In Sabri , the Court examined a statute that criminalized bribery by officials of state and local governments that received federal funds greater than $10,000 per year and determined that this was not properly viewed as a condition on the receipt of federal funds because the statute "is authority to bring federal power to bear directly on individuals who convert public spending into unearned private gain, not a means for bringing federal economic might to bear on a State's own choices of public policy." Instead, Congress was "licensing federal prosecution in an area historically of state concern." In other words, Congress possesses power under the Spending Clause to impose conditions on the use of federal funds by states, but a statute that criminalizes as a federal offense the behavior of third parties, even if they are officials of entities that receive federal funds, is not such a condition. On the other hand, the statute in Sabri criminalized the conversion of public funds into personal gain. One might argue that a proposal to regulate crimes of violence by police officers might be distinguished as regulation of law enforcement officials in their official capacity. If so, subjecting police officers to federal criminal liability might be considered a condition on the use of federal funds.

If a federal statute criminalizing behavior by state and local officials is not considered a condition on the receipt of federal funds, it might therefore require separate constitutional authority other than the Spending Clause itself. In Sabri , the Court noted that Congress possessed authority under the Spending Clause to disperse funds for the general welfare and "corresponding authority under the Necessary and Proper Clause to see to it that taxpayer dollars appropriated under that power are in fact spent for the general welfare, and not frittered away." Congress thus has power to "safeguard the integrity of the state, local, and tribal recipients of federal dollars." This principle might not extend to federalizing crimes of violence by local and state officers because such a statute does not appear to be directed at protecting those funds.

Alternatively, if such a proposal is properly considered a condition on the receipt of federal funds, then analysis of its constitutionality would presumably turn on whether the condition is related to the federal interest in the use of the funds. One might argue that, similar to its interest in banning discrimination, the federal government has an interest in ensuring that federal funds are not used for committing crimes of violence against individuals. Congress has passed legislation barring discrimination based on race, sex, disability, and age by recipients of any federal funds. Since Dole , the Supreme Court has not made clear what the "relationship" must entail other than noting that conditions must "bear some relationship" to the underlying purposes of the funds and has never invalidated legislation under the Spending Clause "on relatedness grounds." In several cases that predate Dole , the Court upheld Spending Clause legislation barring recipients of federal funds from engaging in race and sex discrimination and cited the former case favorably in Dole itself.

In addition, as mentioned above, in Sabri the Court found that Congress has power under the Necessary and Proper Clause to "see to it that taxpayer dollars appropriated under that power are in fact spent for the general welfare, and not frittered away in graft." Analogizing this principle to Spending Clause legislation barring recipients of federal transportation funds from disability discrimination, the U.S. Court of Appeals for the D.C. Circuit has ruled that disability discrimination by recipients of federal money similarly "'fritter[s] away' federal funds." The court found that, in congruence with three other circuits, Congress's goal of ensuring transportation funds not be used "to facilitate disability discrimination" and its method of doing so—waiving an entity's sovereign immunity from suit—satisfies Dole 's "relatedness requirement" for Spending Clause legislation. Consequently, a proposal to federalize crimes of violence by police officers is more likely to be upheld if it is considered a condition on state and local government use of federal funds than if a court views it as independent regulation of third parties.

Commerce Clause

While most proposals to regulate local law enforcement appear to do so under the Spending Clause or Congress's power to enforce the Fourteenth Amendment, legislation found to exceed Congress's authority in those areas might instead be supported by the Commerce Clause.

As an initial matter, states possess primary authority to criminalize local conduct, and the Supreme Court has made clear that "Congress cannot punish felonies generally." Behavior that occurs "wholly within a State 'cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.'" The Constitution does, however, grant Congress the power to regulate foreign and interstate commerce. The Supreme Court has identified three areas that Congress may regulate under this authority. First, Congress may regulate the "channels" of interstate commerce. For example, in the criminal context, federal law has done so by banning the interstate transportation of stolen property and the interstate transportation of kidnap victims. Second, Congress may regulate the "instrumentalities" of interstate commerce or things and people in interstate commerce. Under this authority, Congress has criminalized the theft of property in interstate shipment. Third, Congress may regulate activities that have a "substantial relation to interstate commerce" and intrastate economic activity that substantially affects interstate commerce in the aggregate.

Pursuant to this third category, the Court has upheld Congress's power to criminalize the local cultivation of controlled substances. In Gonzales v. Raich , the Court considered whether Congress could criminalize the intrastate cultivation and possession of marijuana. The Court noted that Congress is authorized under the Commerce Clause to "regulate purely intrastate activity … if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity." Permitting the cultivation and consumption of marijuana "outside federal control would frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety." Therefore, "the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption … has a substantial effect on supply and demand in the national market."

On the other hand, the Supreme Court has imposed some important limits on this power. In United States v . Lopez , the Court invalidated the Gun-Free School Zones Act of 1990, which criminalized the knowing possession of a firearm in a school zone as beyond Congress's authority under the Commerce Clause. The government argued that violent crime affected the national economy by deterring travelers and also imposed a threat to school environments, which, in turn, could result in a less educated population, which would negatively affect the economy. The Court, however, observed that the statute had nothing to do with economic activity and noted the lack of any "jurisdictional element which would ensure … that the firearm in question affects interstate commerce." The Court ultimately rejected the government's arguments, observing that under its theories "it is difficult to perceive any limitation on federal power." Accepting the government's argument, the Court reasoned, would require it to "pile inference upon inference" to find a substantial effect on interstate commerce and would result in congressional usurpation of the states' police power.

Similarly, in United States v. Morrison , the Court invalidated a provision of the Violence Against Women Act of 1994, which authorized the victims of gender-motivated violence to sue the perpetrator for damages, as exceeding Congress's authority under the Commerce Clause. The Court noted that Congress did support the legislation with congressional findings indicating the effect of gender-motivated violence on interstate commerce but concluded that Congress was relying on a "but-for causal chain from the initial occurrence of violent crime to … every attenuated effect upon interstate commerce." This reasoning "would allow Congress to regulate any crime so long as the nationwide" impact affected interstate commerce. The Court thus ruled that Congress may not regulate "noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce."

The Court has also narrowly construed statutes to avoid confronting whether Congress exceeded its Commerce Clause authority. For example, in Jones v. U nited States , the federal government prosecuted an individual for arson of a private residence not used for commercial purposes. The underlying statute criminalized the destruction by fire of a building "used" in interstate commerce. Noting the "constitutional questions" that would arise if the Court interpreted the statute to criminalize "traditionally local … conduct," the Court read the "used" language to require "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Because the home burned by the defendant was not used in this way, the Court read the statute not to apply and vacated the conviction.

Proposals to federalize crimes of violence by local and state police officers without a jurisdictional hook to interstate economic activity might not be upheld as valid legislation under the Commerce Clause. The Court has noted that drawing a clear line between economic and non-economic activity can sometimes be difficult but has explained that "'[e]conomics' refers to 'the production, distribution, and consumption of commodities.'" As mentioned above, the Court has upheld a statute that criminalized the local cultivation and use of marijuana, "commodities for which there is an established, and lucrative, interstate market," because "[p]rohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product." In contrast, the Court has made clear that neither the "possession of a gun in a school zone" nor gender-motivated violence are properly considered economic activity. Consistent with these cases, crimes of violence committed by law enforcement officers might not be considered economic activity either. Further, the criminalization of local crimes of violence does not appear to be "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Just as the Court in Morrison refused to allow Congress to regulate non-economic, violent conduct based solely on its aggregate effect on the economy, proposals to do so with regard to violent crimes committed by police officers might be constitutionally infirm.

Consequently, in order to pass constitutional muster, such proposals likely require a jurisdictional element that would limit their application to crimes that have a connection with or affect interstate commerce. As mentioned above, a number of federal statutes criminalize behavior that concerns the channels or instrumentalities of interstate commerce. In addition, the Racketeer Influenced and Corrupt Organizations Act criminalizes certain activities "engaged in" or affecting interstate commerce. A proposal that was limited in application to these areas might be on firmer constitutional ground. Likewise, proposals to enact a federal ban on racial profiling or the use of chokeholds by law enforcement agents—without a connection to federal funds or pursuant to Congress's power under the Fourteenth Amendment—seem susceptible to the same objection: Neither one is an economic activity, and regulation of non-economic activity based on its aggregate effect on interstate commerce is generally impermissible.

On the other hand, whether Congress has power under the Commerce Clause to ban municipalities from enforcing criminal or civil laws for the purpose of raising revenue might be a closer question. As an initial matter, Congress might limit the application of the law to practices that concern the channels or instrumentalities of interstate commerce. Otherwise, assuming a proposal lacks such a limitation, it must be justified as a regulation of economic activity that substantially affects interstate commerce. One might argue that, in contrast to the possession of a gun in a school zone, the operation of a municipality's revenue stream, which can be used to buy goods and services as well as pay the salaries of local government officials and employees, is properly considered economic activity. If so, a court would then presumably inquire whether Congress has a "rational basis" for concluding that such activity has a substantial effect on interstate commerce. When the underlying activity to be regulated is economic in character, the Court has sometimes been deferential to Congress's determination that the activity has a connection to interstate commerce. For example, in Perez v. United States , the Court upheld a federal criminal statute that outlawed loan sharking activities. The defendant argued that application of the law to him exceeded Congress's power under the Commerce Clause because the activity occurred in one state and he was not a member of an interstate organized crime ring. The Court upheld the law and accepted Congress's conclusion that even intrastate loan sharking affected interstate commerce.

Nonetheless, even if Congress possesses authority to regulate a particular activity under the Commerce Clause, it may not intrude on state sovereignty in violation of the Tenth Amendment. As mentioned above, Congress may not "commandeer" state governments, either by forcing them to enact certain laws or by compelling state officials to implement federal legislation. While the Supreme Court has rejected commandeering challenges when federal legislation regulates states directly—rather than imposing requirements on a state's regulation of its own citizens —a federal law banning state and local officials from executing the law in a particular manner appears distinct from that situation. Proposals to bar state and local officials from enforcing the law in a manner intended to raise revenue have been discussed in the media, and some have announced that corresponding bills will be introduced in the 114 th Congress. However, it does not appear that a bill has yet been formally introduced. Consequently, a comprehensive analysis of such a proposal is premature. To the extent that a federal law directs state officials to enforce a federal law against its own citizens, the anti-commandeering principle might be violated.

Section 5 of the Fourteenth Amendment

Several congressional proposals would address police misconduct by imposing civil or criminal liability on individuals who engage in the prohibited conduct. Without a tether to federal funds, such legislation might be supported by Congress's power under Section 5 of the Fourteenth Amendment. The Fourteenth Amendment bars states and local governments from "depriv[ing] any person of life, liberty, or property, without due process of law [or] deny[ing] to any person … the equal protection of the laws" and grants Congress the "power to enforce, by appropriate legislation" those provisions. Congress has done so in at least two areas: (1) imposing criminal and civil liability on individuals who, "under color of law," deprive a person of rights or privileges "secured or protected" by the Constitution or U.S. law; and (2) enacting "prophylactic legislation" intended to deter violations of rights guaranteed under the Fourteenth Amendment by prescribing a broader scope of conduct than explicitly mentioned in the text.

In addition, Congress's enforcement power under Section 5 differs from its power under other constitutional provisions in at least one important respect. The Eleventh Amendment bars suits for damages against states unless the state has waived its sovereign immunity or Congress legislates pursuant to a constitutional power to subject states to suit. The Supreme Court has held that Congress may abrogate state sovereign immunity under Section 5 of the Fourteenth Amendment but may not do so under its Article I power, which includes the Commerce Clause.

Deprivation of Rights Under Color of Law

Congress has provided for civil liability for deprivations of rights under the Constitution or federal law via 42 U.S.C. § 1983. That statute "is not itself a source of substantive rights," but offers "a method for vindicating federal rights elsewhere conferred." Likewise, its "criminal analogue," 18 U.S.C § 242, imposes criminal liability for deprivations of federal rights, but is not itself a substantive source of criminal liability. These statutes, "in lieu of describing the conduct [they] forbid[] … incorporate constitutional law by reference." In both contexts, "if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision." In other words, the violation that animates civil liability under Section 1983 or criminal liability under Section 242 lies in the deprivation of separate constitutional rights.

Several proposals to address police misconduct appear to single out particular practices as civil rights violations under 18 U.S.C § 242, including the use of chokeholds and the enforcement of criminal and civil laws for the purpose of raising revenue. However, because these statutes incorporate other constitutional and statutory substantive rights "by reference," such proposals would presumably require their own constitutional authority to withstand constitutional challenge. Put another way, the validity of proposals to add specific substantive content to 42 U.S.C. § 1983 and 18 U.S.C. § 242 will ultimately turn on whether the proscribed conduct itself violates a federal statutory right, the Fourteenth Amendment's Due Process or Equal Protection Clauses, or another substantive right incorporated in the Fourteenth Amendment as a "fundamental right."

As a threshold matter, aspects of certain proposals may already be protected by the Constitution and may be currently challenged via Section 1983 or Section 242 litigation. Both individual and class action claims are available—in certain circumstances—under Section 1983 against police officers using chokeholds as a violation of the Fourth Amendment right to be free from excessive force, as well as claims alleging racial profiling as violations of the Equal Protection Clause. Further, the Supreme Court has made clear that in certain circumstances, injunctive relief may be available to enjoin an unlawful police practice, although doing so may be difficult under the Court's "equitable standing" doctrine.

Prophylactic Legislation

Leaving aside the specific behavior addressed in various proposals that is already incorporated in constitutional rights, Congress's power to enforce the provisions of the Fourteenth Amendment is not limited to simply proscribing unconstitutional conduct. Pursuant to its enforcement power, Congress may "remedy and deter violations of rights guaranteed" under the amendment "by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Constitution's text." Put another way, "Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct."

However, this authority is subject to several limitations. First, Congress may regulate only state and local governments under this authority, not private persons. Second, Congress may not enact prophylactic measures that alter the substantive content of the underlying right being enforced. In other words, enforcement of the right does not include "the power to determine what constitutes a constitutional violation." For example, Congress may not exercise this enforcement power to afford broader protection for religious expression than that provided by the First Amendment. The Court has explained that "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Without this limitation, "legislation may become substantive in operation and effect."

The Supreme Court has examined several factors under its congruence and proportionality analysis. Of particular importance is a court's initial "identif[ication of] the constitutional right or rights that Congress sought to enforce." It is easier for Congress to establish congruence and proportionality when Congress seeks to enforce constitutional protections "subject to more searching judicial review" than those subject to rational basis review. In other words, if the underlying right sought to be enforced by Congress is already more closely guarded by the courts, then the courts will be more likely to find congruence and proportionality between the right protected and the remedy provided.

After determining the scope of the constitutional right in question, courts next look to whether "the States' record of unconstitutional participation in, and fostering of … discrimination … is weighty enough to justify the enactment of prophylactic § 5 legislation." Without a record of "widespread and persisting deprivation of constitutional rights," prophylactic legislation risks becoming "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." For example, in South Carolina v. Katzenbach , the Court ruled that the "unprecedented remedies" at issue were justified because of the "widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination" by the states. In contrast, in Kimel v. Board of Regents , the Court invalidated a provision of the Age Discrimination in Employment Act that permitted suits against states due in part to "Congress' failure to uncover any significant pattern of unconstitutional discrimination here [which] confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field."

While the Court has not clearly indicated the necessary quantum of evidence sufficient to sustain particular legislation, generally speaking the greater the evidence of widespread violations of a particular constitutional right, the more likely the record will be found to support prophylactic legislation. For example, a record demonstrating a "long and extensive history" of unconstitutional conduct by the states, a national survey demonstrating persistent constitutional violations, and judicial decisions identifying "unconstitutional treatment" have all been harnessed to support prophylactic legislation. In contrast, studies of violations in a single state, isolated examples that fail to demonstrate nationwide violations, dated or untimely evidence, and a lack of specific findings indicating that activity of the state led to a violation can all be insufficient to support prophylactic legislation. Nonetheless, a clear standard governing the quantum of evidence required to support prophylactic legislation remains elusive. Fair-minded applications of the "congruency and proportionality" can generate contrary conclusions, leaving it extraordinarily difficult to make definitive conclusions about a proper legislative record in close cases.

In addition, the validity of prophylactic legislation under Section 5 depends in part upon the relationship between the severity of the constitutional violation at issue and the nature of the remedies imposed. For example, in Tennessee v Lane , the Court upheld legislation directed at ensuring access to judicial proceedings for individuals with disabilities, noting the "limited" nature of the remedy imposed—requiring states to "accommodate persons with disabilities in the administration of justice" —in comparison with the importance of the fundamental right of access to the courts and the history of discrimination against disabled individuals.

Ban on the Use of Chokeholds

Proposals to ban the use of chokeholds by law enforcement officers and subject violations to federal criminal liability appear intended to deter the use of excessive force in violation of the Fourth Amendment right to be free from unreasonable seizures. As mentioned above, courts reviewing prophylactic legislation first look to the scope of the constitutionally protected right Congress seeks to protect. Fourth Amendment excessive force claims in the context of arrests and investigatory stops are subject to an "objective reasonableness standard," considered from the perspective of a reasonable officer on the scene and accounting for the need of police to make split-second decisions about the proper amount of force required.

Congress potentially faces a difficult burden in proving a history of constitutional violations. As noted above, establishing a widespread pattern of constitutional violations is rendered more difficult when the underlying right is not subject to heightened judicial scrutiny. Evidence of long-term and widespread use of chokeholds in violation of the Fourth Amendment's prohibition against excessive force at the state and local level would presumably be required to sustain the legislation. The congressional record would likely have to demonstrate a definite relationship between the use of chokeholds by police and widespread constitutional violations.

Further, depending on the record of violations, the remedy of subjecting the use of chokeholds to criminal liability must be in proportion to the "supposed remedial or preventive object." Barring the use of chokeholds might be considered over-inclusive as a prophylactic remedy, as it completely bars police tactics that can sometimes be constitutional and arguably necessary to respond to certain situations. The nature of the remedy itself might also factor into the proportionality test. Subjecting police officers to criminal liability harnesses the most severe governmental tool available. Given the alternative means to effectuate a ban on chokeholds, such as damages or declaratory and injunctive relief, the severity of criminal liability as a remedial measure may not be congruent and proportional to the nature and extent of violations of individuals' Fourth Amendment rights.

Bar on Enforcing Civil or Criminal Laws to Raise Revenue

Barring the enforcement of civil or criminal laws for the purpose of raising revenue might be viewed as protecting the right to due process or equal protection of the laws. The Constitution imposes less procedural protections in civil cases than in criminal matters. But the Court has made clear that, even in civil proceedings, the Due Process Clause requires procedures that are "fundamentally fair." The Court has recognized a due process protection for the impartial administration of justice that can be violated by a personal or official interest in the outcome of adjudication. For example, the Court has held that due process was violated by the imposition of criminal fines by a judge whose compensation derived from those fines, and the city budget—which he was responsible for in his position as mayor—depended on those fines. In contrast, due process was not violated by a similar fine imposed when the mayor was not so compromised by a direct pecuniary interest in the matter. Due process can be violated when the decsionmakers' position is such that it "offer[s] a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true," although it appears that whether particular situations constitute violations of this principle are largely fact-specific.

Given this protection under the Due Process Clause, Congress must demonstrate that its chosen remedy is congruent and proportional to the violation it seeks to remedy. This likely requires a showing in the congressional record of a widespread pattern of unconstitutional enforcement of laws by individuals with a personal or official interest in the outcome. In addition, barring the enforcement of any law for the purpose of raising revenue appears to cover a much larger scope of state and local practices than is constitutionally prohibited, calling into question whether Congress's chosen remedy might not be congruent and proportional to the constitutional violation it is directed toward. For example, the Court has rejected a due process challenge to the imposition of fines where the funds were used to generate revenue for the village and the mayor was paid a salary out of those funds. The Court reasoned that because the mayor's salary did not change based upon whether the individual was convicted or not, the mayor did not have an improper interest in the outcome of the case. Proposals to entirely ban fines imposed to raise revenue would extend even to this situation, potentially calling into question the use of innumerable fines imposed by local and state governments. Consequently, the scope of such a proposal may be "out of proportion to [the legislation's] remedial or preventive objectives."

Proposals to ban the enforcement of laws for revenue-raising purposes might also be directed at protecting the right to equal protection of the law. "[T]he Constitution prohibits selective enforcement of the law based on considerations such as race." To prove a violation of the Equal Protection Clause, "plaintiffs must prove that the defendants' actions had a discriminatory effect and were motivated by a discriminatory purpose." Selectively directing enforcement activity at minority communities could thus constitute a violation of the Equal Protection Clause. And barring enforcement of the law in order to raise revenue might be a remedy imposed by Congress in order to protect the right to equal protection of the law.

As mentioned above, however, Congress would need to show a history of constitutional violations in order to support prophylactic legislation in this area. Because discrimination based on race is subject to heightened judicial scrutiny, the burden of doing so might be lower than when Congress seeks to protect rights subject to rational basis scrutiny. However, the record must show a relationship between the remedy imposed and the targeted constitutional right to be protected. In other words, Congress must show a link between the enforcement of laws in order to raise revenue and widespread instances of selective enforcement of the law in violation of the Equal Protection Clause. In addition, a proposal that bans such enforcement of the law when directed against minorities is a narrower remedy than one that bans all such enforcement. In the latter case, one might challenge the scope of such a remedy as disproportional to the legislation's objectives, as a large amount of fines imposed by local governments could be implicated. Consequently, a narrow remedy is more likely to be considered proportional to the constitutional violation at issue.

Bar on Racial Profiling by Law Enforcement Officers

Legislation barring racial profiling by law enforcement officers might also implicate rights under the Fourteenth Amendment. As discussed above, the Court has made clear that the "Constitution prohibits selective enforcement of the law based on considerations such as race." However, in order to prove a violation, plaintiffs must generally show that the application of the law had a discriminatory effect and was motivated by a discriminatory purpose.

One proposal would ban law enforcement agents and agencies from relying on race, gender, gender identity, and sexual orientation in selecting individuals for investigation except in certain circumstances. The congressional record would likely need to demonstrate a history of constitutional violations with respect to each classification. Additionally, because the various classifications may be subject to varying degrees of scrutiny, it may be necessary to demonstrate more widespread violations for some classes than would be necessary for others. The proposal bars "any" reliance on race (absent evidence linking a person with a particular characteristic) and provides that proof of a "disparate impact" constitutes prima facie evidence of a violation. As courts require evidence both of disparate impact and a discriminatory purpose to constitute a violation of the Equal Protection Clause in this context, the provision could be viewed as enlarging the scope of rights guaranteed under the Equal Protection Clause, rather than as a prophylactic measure meant to proscribe otherwise constitutional conduct that leads to an unconstitutional result. If so, the remedy's scope may be disproportional to the underlying constitutional violation. Resolution of the issue will ultimately depend on the record amassed by Congress.