Law Enforcement and Federal–State Relations (Update)

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In 1995, the Supreme Court handed down an opinion that had the potential to rewrite federal–state relations in criminal enforcement. The ruling in united states v. lÓpez, a decision on the power of Congress to regulate interstate commerce, involved a criminal prosecution of a twelfth-grade student for a violation of the Gun-Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."

inLópez, the Court held that this statute was "invalid as beyond the power of Congress under the Commerce Clause." For the first time since the 1930s, the Court declared a federal statute unconstitutional on such a ground and thereby raised doubts about the commerce clause underpinnings of much of the Federal Criminal Code.

Chief Justice william h. rehnquist reviewed the traditional commerce power bases that have been upheld by the Court and found none of them present in López. Initially the Court's decision seems sound; upon reflection, however, doubts arise. After all, what is the guiding principle in the decision? Simply the absence of express connection to interstate commerce? If so, could Congress cure the constitutional defect by including findings in the statute regarding the impact on commerce of the possession of guns on school grounds; or using another approach, by requiring that the gun, or some of its parts, or the possessor of the gun, have traveled recently in interstate commerce? If so, the decision loses its significance and becomes formalistic in the extreme.

In the wake of the decision, numerous symposia were organized discussing the impact of López. Nor was there a stirring only in academia. Within the next few years, in reliance on the decision, frequent challenges to the constitutionality of other commerce-based federal criminal legislation were raised in the lower federal courts. A key question addressed in the academic consideration of the implications of the decision was whether this was an opening salvo in an attack by the Court on the practically unlimited scope of the exercise of commerce power authority by the Congress. Or was it simply "an isolated deviation from the strong current of precedents"?

If the lower court decisions are any index, López does not signal a revolution in commerce power doctrine. Although there have been some decisions holding federal statutes unconstitutional, most of the case law has upheld the challenged statutes. Yet, the issue has not returned to the Court, and until that body rules again, the significance of López remains uncertain.

ifLópez is not the harbinger of a revolution, one wonders why the Court chose this particular case to draw a constitutional line in the sand. Examining the case in light of how its facts bear on the federal–state relationship in criminal enforcement may shed some light on this issue. While such an examination may not produce a doctrinal principle underlying the decision, it does steer us toward pragmatic policy concerns relating to the enforcement of federal criminal statutes that may be quite relevant to the constitutional issues in such cases.

Articulated concerns about the federal–state relationship in criminal enforcement have surfaced in a set of Supreme Court cases involving issues of statutory interpretation. One such early case is Rewis v. United States (1971), which involved the interpretation of the Travel Act that, among other things, makes it a federal crime to travel across a state line in aid of gambling. In Rewis, the Court construed the act as not covering the interstate travel of mere customers of a gambling establishment, stating, "an expansive Travel Act [i.e., one that would include the interstate travel of gambling customers within its coverage] would alter sensitive federal–state relationships, could overextend limited federal police resources, and … would transform relatively minor state offenses into federal felonies."

One can examine López through the same prism as Rewis and make strikingly similar observations. As in Rewis, the likely number of persons who would violate the federal statute, countrywide, might be substantial. Extensive enforcement of the López statute would disproportionately use up limited federal police resources, while limited enforcement inevitably would involve prosecutors in selecting a very few cases from a large number of possible prosecutions, making the selection, inevitably, rather arbitrary and capricious. Either way, serious stresses would be put on the sensitive federal–state relationship.

Further, although the nature of the crime and the criminal in López is undoubtedly different from that in Rewis, there nevertheless are similarities. However concerned we are about not having guns present where children are regularly found, the nature of the conduct involved in López is not, in and of itself, directly a form of serious criminality. The perpetrator is likely to be "a local student at a local school," and most of the persons likely to be prosecuted under the statute would not be typical criminals. While the underlying concern about potential violence in López is quite different from Rewis, federal prosecution of school children may be viewed, arguably, as not significantly different from prosecuting gambling customers. In Rewis, the Court had the luxury of being able to construe the statute narrowly to avoid federal–state concerns. Where that option is not available, the same type of concerns may have some impact on the constitutional decision that is rendered.

López probably is not the forerunner of a major upheaval in federal–state relations in criminal enforcement. Such a change may one day come, but it is more likely to come from the actions of legislators and officials in the U.S. Department of Justice and the work of scholars in the field, than from a sea change in commerce clause doctrine handed down by the Supreme Court.

Norman Abrams

(see also: Federal Criminal Law.)


Symposium 1995 Federalization of Crime: The Roles of the Federal and State Governments in the Criminal Justice System. Hastings Law Journal 46:965–1338.

——1995 Reflections on United States v. López. Michigan Law Review 94:533–831.

——1996 The Federal Role in Criminal Law. The Annals 543:9–166.

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Law Enforcement and Federal–State Relations (Update)

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Law Enforcement and Federal–State Relations (Update)