Law Enforcement and Federal–State Relations

Author:Norman Abrams

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This country has long been committed to the notion that primary responsibility for law enforcement should reside in state and local governments. Over the past century, however, changes in the federal criminal system have affected the traditional balance among federal, state, and local responsibilities for law enforcement. We may be slowly moving in the direction of a national police force.

The Supreme Court has affirmed the constitutionality of an expanded federal legislative authority in the realm of criminal enforcement. Congress has enacted numerous statutes under this expanded federal authority. As a result, the federal criminal code has begun to look more and more like a state criminal code in its substantive content and even in its jurisdictional reach and form.

Over the long term, the balance among the several law enforcement JURISDICTIONS will be determined not only by the breadth of the law on the books but also by its implementation in practice. The type and magnitude of police resources available to the federal government and the attitudes of the electorate and decision makers in key governmental institutions are likely to determine whether a broad federal criminal authority will supplant state and local responsibilities. Here, too, some changes have begun.

The traditional allocation of law enforcement responsibilities assigns to local governments the basic policing of crimes such as homicide, theft, robbery, rape, burglary, muggings, and the like. Local police have responsibility for patrol, for immediate response to reports of crime, and for investigations. A huge number of local officers presently performs those functions nationwide, particularly in metropolitan areas. The idea of a "national police force" directed from Washington, D.C. taking over these functions seems far-reaching. But one can imagine substantial shifts in the traditional division between federal and local responsibilities that would be accompanied by growth of a significantly larger corps of federal police that might fairly be called a national police force.

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The jurisdictional reach of the federal criminal code has expanded in many ways over the past century. Most federal criminal legislation not aimed at protecting direct federal interests, such as federal funds or property, has been constitutionally based in Congress's enumerated powers?for example, the POSTAL POWER, the TAXING AND SPENDING POWER, and the power to regulate commerce among the states. (See NATIONAL POLICE POWER.)

Use of the postal and taxing powers as a basis for federal criminal jurisdiction has not changed much over the years. The use of the mails was relied upon early in the mail fraud statute enacted in 1872. A comprehensive registration-tax scheme was utilized in the original major antinarcotics legislation, the HARRISON ACT of 1914. The COMMERCE CLAUSE which began its criminal law history as a fairly narrow jurisdictional base?requiring transportation or travel across a state line?in modern times has been expanded. In a number of statutes, federal jurisdiction is now based on the use of the facilities of commerce such as interstate telephone calls, telegrams, and any kind of interstate movement of persons or goods.

The EFFECT ON COMMERCE formula, originally developed in the economic regulation sphere, has also broadened the bases for federal criminal jurisdiction. The nexus with commerce required under that formula is not very substantial. And the "effect on commerce" formula itself has been extended to situations where the criminal activity merely takes place on the premises of a business whose operations affect commerce. Furthermore, in PEREZ V. UNITED STATES (1971) the Court accepted congressional findings that a type of criminal conduct was part of a class of activities affecting commerce, and held that that type of conduct could be made a federal crime without any showing of an effect upon commerce in the individual case. Although in most cases similar to Perez proof of an effect upon commerce probably can be shown, Perez represents the furthest expansion of the reach of federal criminal jurisdiction under the commerce power.

The necessity to rely upon enumerated powers led Congress to enact crimes in forms differing markedly from the usual state penal code. Often, otherwise innocuous conduct that provided the basis for federal jurisdiction became the central element of the offense. Congress made criminal the transportation in commerce of lottery tickets, or obscene literature, or women for immoral purposes; depositing a letter in the mails to execute a fraudulent...

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