THE STRUCTURE OF CRIMINAL FEDERALISM.

• Author: Blondel, Erin C.

INTRODUCTION 1038 I. CRIMINAL ENFORCEMENT FEDERALISM 1044 A. The Primary States 1045 B. The Supplemental Federal Layer 1049 II. THE FEDERALISM OF OVERLAPPING ENFORCEMENT 1055 A. The Federal-Local Crime Distinction 1056 B. The "Local" in Constitutional Federalism 1059 C. The Tradition of Overlapping Law and Cooperative Enforcement 1063 1. Pre-Civil War 1064 2. Post-Civil War 1068 III. WHAT MAKES A CASE "FEDERAL"? 1074 A. The Federal Toolkit 1075 B. Selecting Cases Across Crime Categories 1079 1. Federal-Interest Crimes 1079 2. Seemingly Federal Crime 1087 3. Local Crime 1089 IV. THE FEDERAL-STATE CRIMINAL RELATIONSHIP 1094 A. Reframing Criminal Federalism 1094 B. Some Concerns 1100 C. Some Practical Implications 1103 1. Congress 1103 2. Executive Officials 1107 3. Courts 1110 4. The States 1111 CONCLUSION 1111 INTRODUCTION

For at least a century, (1) "[s]cholars have... relentlessly pursued the issue of when crime should be a matter of federal concern and when it should be left to local prosecutors." (2) The federal system intervenes selectively, leaving nearly all criminal enforcement to the states. (3) Deciding when to act--which crimes to prohibit federally, which cases to prosecute, and where to allocate federal resources--requires a theory of the federal system's role in relation to the states. But a workable theory has proven elusive.

Underlying that pursuit is a puzzle. Many scholars and the Supreme Court worry that federal criminal law long ago blew past whatever line should exist.' Federal jurisdiction is enormous. The federal criminal code almost entirely overlaps with state criminal law. Federal prosecutors routinely charge seemingly "local" crimes, like drug dealing, weapons possession, robbery, and fraud. (5)

Yet as other scholars have observed, the federal system's actual enforcement footprint is small; it prosecutes fewer than five percent of felonies nationwide, (6) preferring to operate mostly as an "adjunct" to the states' much larger justice systems. (7) That has remained true for at least a century, even as federal jurisdiction, statutes, and enforcement priorities have expanded dramatically. (8) Something is strongly restraining the federal system, but not jurisdiction, statutes, or crime categories.

The answer, this Article proposes, lies in a form of enforcement federalism that is robust, well-entrenched, and shaped differently than existing federalism models would suggest. The states' police power is much more than the laws states can enact. It assigns to the states responsibility for basic public safety, criminal law, and criminal enforcement. Consequently, the states need comprehensive criminal codes andjustice systems--the laws, personnel, and infrastructure to respond to and address public safety and crime.

Duplicating state enforcement would be pointless, inefficient, and politically unpalatable. So the federal system has evolved to doing something different: "backstop"" state enforcement errors and breakdowns, which inevitably occur given how much states have to do. Together, those very different roles keep the states entrenched on the front lines of criminal justice and the federal system small, supplemental, and dependent.

Critics worried about overfederalization, including many scholars and the Supreme Court, have thus misunderstood criminal federalism. They have assumed that federalism means separating "truly national" (10) crime from "traditionally local criminal conduct." (11) But overlap is a foundational, even essential ingredient of criminal federalism. The Constitution, federal law, and federal norms give states almost unfettered control over their laws and officers, and having the police power provides strong incentives to maximize the reach of state law and enforcement. So virtually every crime is a local offense, even seemingly federal ones like terrorism, securities fraud, and counterfeiting (12)--a crime listed in the Constitution itself. (13) Overlap is not only inevitable but a primary restraint on federal power: the federal government cannot go far when the states are already there.

That explains why decades of scholarship exhorting federal actors to "stop 'playing district attorney'" (14) and resist "federaliz[ing] state crimes" unless there is "a gap otherwise left by state law" (15) have failed utterly to change federal behavior. Likewise, the Supreme Court's caselaw trying to yank federal statutes and prosecutions out of "purely local crime," (16) such as United States v. Lopez (17) and Bond v. United States, (18) have proven singularly ineffectual on the ground. (19) Criminal federalism does not rely on separation. Overlap is part of criminal federalism's basic architecture.

For the same reason, scholars' and the Court's quest to identify "traditional" federal crimes (20) is misguided. The seeds of overlapping state-federal law and cooperative enforcement were planted immediately, in the Constitution and early federal law. The federal-state relationship quickly developed and has since maintained a tradition of overlapping law and cooperative enforcement, a tradition that has proven exceptionally effective and durable over time, despite strong incentives to increase federal power.

What shapes federal intervention is not whether a crime is "federal" or "local" but a combination of procedural advantages that flow from being supplemental and policy decisions about where to direct those advantages. Being supplemental means doing some things well, like concentrating resources on hard cases, and some things poorly, like trying to take primary responsibility for public safety in populated areas. (21) Scholars often criticize the federal system for operating differently than the states, (22) but the federal system is different. It plays a different role within the American justice system, one that hugely shapes how the federal system operates and where it directs scarce enforcement resources.

Put another way, whether a crime is "federal" is a policy question, one the Constitution left largely open ended. (23) The federal criminal system did not evolve away from genuinely federal crime toward more-local crime. National criminal concerns change over time, and the federal government--which remains accountable to voters who care deeply about crime--has responded. (24)

The point is not simply that, like everywhere else, cooperative federalism has triumphed. Scholars and courts across the political spectrum have long sought effective restraints on the federal criminal system. For traditionalists, including the Court, criminal enforcement is the heart of the states' police power. If states lack any clear zone of authority there, it's hard to imagine where states remain powerful. (25) Scholars primarily object to federal prosecutions' often-unequal results, especially higher conviction rates and sentences, compared with the states. (26)

With violent crime rising for the first time in years, (27) the Biden administration has recommitted to using federal resources, including federal prosecutions, to address street violence. (28) If history is any guide, controversy will follow, (29) particularly in an era justly sensitive to consequences of overcriminalization and overincarceration on marginalized individuals and communities. (30)

Given those misgivings, cooperative criminal federalism can seem frustratingly formless. Defenders tend to stress cases the federal system docs well, like civil rights or defeating the mafia, or advantages the federal system enjoys, like greater resources or greater legitimacy. (31) But for skeptics, procedural advantages mean relying on little more than self-restraint by federal actors. Yet Congress has incentives to seem tough on crime, prosecutorial guidelines are vague and unenforceable, and prosecutorial discretion is broad and lacks oversight.

What's missing is a more robust cooperative criminal federalism, one with workable limits grounded in--rather than separating from--law and tradition. Overlapping, cooperative federalism based on the state-federal enforcement relationship meets those criteria. And it offers a very different model of federalism from either traditional federal-local separation or the "'new'... nationalist school of federalism," which conceives of states as agents implementing federal policy. (32) In criminal law, states are neither separate nor "servant[s]"; (33) they control criminal justice, and they enjoy near-total autonomy doing it.

Framing cooperative criminal federalism properly offers critical doctrinal, theoretical, and practical payoffs. It explains why the Supreme Court's repeated efforts to constrain federal criminal law using substantive law, especially enumerated powers, has failed. And it uncovers other doctrines, especially anticommandeering and (avoiding) preemption, that better enforce criminal federalism by promoting state primacy and therefore federal dependence. (34) Federal gun prosecutions, as in Lopez, have never displaced state enforcement; preempting state immigration law in Arizona v. United States (35) did.

Federal criminal scholarship's quest to find genuinely "federal interest" crimes has struggled for the same reasons. The federal system's many critics should focus on what a supplemental enforcer can contribute rather than trying to limit the federal government to truly "federal" matters or trying to persuade the fundamentally different federal system to behave more like the states. The news for reformers is good: the federal system is small and adaptable; it can respond to evidence about where it helps and where it hurts.

Congress and executive officials should continue embracing their role as supplemental enforcers. They need to get out of the business of being plenary, even on federal enclaves like reservations or military bases. Nor should they try to override state autonomy even in seemingly federal matters, such as in immigration or marijuana enforcement, with...