Policies for the Jurisdiction of the Law, Criminal Justice and Public Safety Committee
Below are the policies of the NCSL Standing Committee on Law, Criminal Justice and Public Safety as of the annual business meeting, which was held on August 22, 2014.
The National Conference of State Legislatures recognizes the importance of permitting aggrieved parties to seek full and fair redress pursuant to state law in state courts for physical harm done to them due to the negligence of others. NCSL also understands the importance of having clear state rules to govern the means and methods by which people can seek such redress. Our American federalism contemplates diversity among the states in establishing these rules and respects the ability of the states to act in their own best interests in matters pertaining to civil liability due to negligence.
NCSL regards the regulation of medical professionals, products, and other civil tort actions as purely state matters, not meriting federal intervention or preemption of state laws. NCSL maintains that no comprehensive evidence exists demonstrating either that state medical malpractice laws, product liability laws or general tort laws have created a problem of such dimension that a federal solution is warranted or that federal legislation would achieve its stated goals. NCSL believes that this type of legislation would create serious new problems in the fields of medical malpractice, product liability, and tort law by dictating a single set of rules controlling the timeliness of claims and the admissibility of evidence. It would conflict with long-standing state laws governing tort liability, workers' compensation and insurance regulations. By doing so, such proposals would place state legislatures and state courts in an intolerable legal straightjacket. In the last decade alone, most states have taken up the issues surrounding medical malpractice, product liability and tort reform and continue to handle the issues surrounding the filing and processing of these cases in ways that are consistent with existing state law, giving due consideration to factors that may be unique to a particular state.
NCSL opposes federal efforts to preempt existing state laws or state constitutional provisions in the area of medical malpractice, product liability and tort law specifically federal legislation that would preempt state laws and/or constitutions in the following manner:
- Preempt state laws governing the applicable statute of limitations in such cases;
- Preempt state laws governing the awarding of damages by mandating a mandatory uniform amount of damages of any kind (compensatory, noneconomic or punitive) at the federal level;
- Preempting state laws governing the drafting of pleadings and introduction of evidence in such cases;
- Preempting state laws and/or constitutions governing the awarding of attorney's fees; and
- Preempt state laws governing a citizen’s access to state courts.
It is the policy of the National Conference of State Legislatures to advance and defend a balanced, dynamic criminal justice partnership between governments at the local, state and federal levels while preserving traditional areas of state authority in this area of the law.
NCSL urges Congress and the Administration to avoid federalizing crime policy and substituting national laws for state and local policy decisions affecting criminal and juvenile justice. Federal jurisdiction should be reserved for areas where a national problem has been identified and states are unable to adequately provide solutions due to scope, or is required to protect federal constitutional rights. The federal government should partner with states to examine ways to avoid unnecessary preemption of state laws; and should strive to maintain its current financial commitments to existing state-federal partnership programs.
NCSL believes that federal actions must recognize that states and local governments have the predominant responsibility to ensure public safety and the administration of justice, and must adhere to fundamental principles of federalism in all areas of criminal justice, including but not limited to:
Federal Financial Assistance
Funding levels for the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) grant program distributed by the Office of Justice Programs in the U.S. Department of Justice, should be maintained as this is the cornerstone federal justice assistance to states for a variety of law enforcement, criminal justice supervision and crime prevention functions.
NCSL also supports full funding of the Second Chance Act which provides grants to states that are used to promote the safe and successful re-integration of individuals who have been incarcerated. This in turn reduces recidivism, increases public safety and assists states in better responding to the growing numbers of people released from prisons and jails who are returning to the community.
NCSL supports the full funding of the Community Oriented Policing Services (COPS) Act. COPS Hiring Grants have been instrumental in enhancing the effectiveness of community policing in America. Federal funding for the COPS program relieves the strain on state budgets to provide adequate and effective law enforcement personnel.
NCSL opposes Congressional proposals or federal regulations that would withhold a portion of state Byrne/JAG funds as a penalty for noncompliance with federal criminal justice policies. NCSL urges the federal government to respect state criminal justice priorities and advance change through partnerships rather than mandates. Where new federal grant programs to states are created, NCSL maintains that funding should be directed to states rather than pass directly to local governments.
Sex Offender Registration
NCSL opposes federal mandates concerning registration of sex offenders, in particular those contained in the Title I SORNA provisions of the Adam Walsh Child Protection and Safety Act of 2006. The mandates imposed by this Act are not only preemptive, they are inflexible and in some instances not able to be implemented by states. States should be permitted to classify and penalize sex offenders, and establish registration and notification requirements in accordance with their own state laws. States should define and decide which juvenile offenders meet criteria for sex offender registration.
The federal government should provide technological support and assistance to states with regard to sex offender registration and public notice systems, including cooperation with the federal Dru Sjodin National Sex Offender Public Website (NCOPW).
NCSL urges the federal government to interpret “substantial compliance” as called for in the SORNA provisions of the Adam Walsh Act to allow state flexibility for matters such as tier systems, retroactivity, and juvenile registration, and allow for substantial implementation as long as a state’s compliance efforts have not frustrated the primary purpose of the Act. NCSL calls upon the federal government to exercise the utmost flexibility in determining whether to penalize states that are working in good faith towards compliance with federal law. States should not be responsible and penalized for absence of compliance by sovereign tribal jurisdictions.
States must preserve authority to determine which juvenile offenders are treated like adults, under what circumstances, and for how long, with regard to sex offender registration and all other matters of juvenile and criminal justice policy.
NCSL supports the goals of the Juvenile Justice and Delinquency Prevention Act, and urges the federal government to provide state flexibility in achieving these objectives. NCSL also supports the role of the federal government in providing states with financial resources to strengthen juvenile justice systems. This includes federal funding for mental health and drug courts, and the broad purpose areas supported in the Juvenile Accountability Block Grants program. Federal involvement should be confined to providing grants and technical assistance to states that facilitate effective juvenile justice; and the federal government should not attach mandates to the receipt of related federal funds, but should encourage states to implement effective policies and techniques for addressing juvenile delinquency, crime and justice.
NCSL supports a strong intergovernmental partnership to fight illicit drugs; and asks that development of broad federal drug control strategies seek and include NCSL and other state and local consultation. NCSL supports a balanced federal approach for interdiction, law enforcement, prevention, education and treatment. NCSL encourages the federal government to take a proactive role in securing United States borders against importation of illicit drugs; and in detection and deterrence of interstate drug trafficking, including cooperation with state and local law enforcement. While money for law enforcement is critical, federal dollars also should help support diversion, treatment and prevention efforts, including but not limited to interdisciplinary drug court funding unaccompanied by testing or other mandates.
NCSL supports federal demonstration, funding and training roles that assist states in implementation and use of modern information systems that aid in detection and prevention of drug abuse, and for remediation of sites that have been used in illegal drug manufacture. NCSL encourages federal leadership and resources that assist state and local governments in other activities that address education, prevention, enforcement, and treatment related to illicit drugs, prescription drug abuse, and emerging drug threats, including but not limited to synthetic drugs. NCSL opposes federal mandates or other preemptive policies with regard to addressing drug abuse and related drug crimes.
Sentencing, Corrections and Recidivism Reduction
Federal jurisdiction for crimes also covered under state law can create competition to escalate punishments and build more prisons. This competition is shortsighted, expensive and unnecessary. The national government should refrain from making federal crimes of state offenses or from enhancing sentences for crimes that are more properly the domain of states. NCSL supports federal leadership and funding for state criminal offender reentry initiatives and criminal justice reinvestment approaches. These initiatives assist states in addressing recidivism and reentry of offenders back into communities in meaningful, cost-effective ways. State and local governments should be afforded maximum flexibility in using federal funds within criminal justice systems, including but not limited to offender needs for drug treatment and mental health services. NCSL opposes any legislation that would restrict state flexibility in sentencing and corrections policy.
Crime Records and Information
NCSL supports the use of the federal Interstate Identification Index (III) for exchange of criminal history record information; and the National Criminal Information Center (NCIC) for crime record and other criminal justice information including fugitives, stolen properties and missing persons. These systems provide means for information sharing under interstate compacts such as the National Crime Prevention and Privacy Compact, the Interstate Compact for Adult Offender Supervision, and the Interstate Compact for Juveniles. NCSL supports such state-federal information systems and sharing partnerships in the states; and asserts that records available via such systems should continue to be predominately state-maintained and that state policies for dissemination of those records should be recognized and adhered to under the systems. NCSL supports federal assistance in improving state criminal history records and related information systems. NCSL opposes any preemption of state authority related to crime records and information.
NCSL supports federal non-preemptive initiatives that use DNA records in crime-solving and the administration of justice, including the Combined DNA Index System (CODIS). Federal funds, including those for DNA analysis backlog elimination, should support the use of DNA as an interstate investigative tool while adhering to state law and placing no mandates on states regarding collection, dissemination or use of records.
NCSL supports a strong state-federal partnership to assist crime victims; and urges continued federal assistance to states provided for in the Victims of Crime Act (VOCA). NCSL encourages the Congress to preserve this primary means by which the federal government provides support to crime victims and their families, via state crime victims and assistance programs. NCSL opposes arbitrary caps which result in diminished services and assistance for crime victims.
NCSL encourages improved interdisciplinary coordination among federal agencies responsible for or involved in the crime of trafficking in persons. Any federal/state partnership should include proper training for law enforcement and other criminal justice personnel who will be in contact with the victims and perpetrators of human trafficking. The federal government must enforce laws that address foreign-born persons brought into the United States via trafficking, smuggling or under false pretenses. This includes providing for effective prosecution and assistance to victims of trafficking, who are in fact, victims of crime, including but not limited to victims who require protection and separation from their traffickers, those who have had documents destroyed or withheld, and specialized assistance for the many victims who are minors. NCSL also encourages improved federal outreach, consultation, coordination and assistance to states and territories, including state lawmakers, with regard to strengthening trafficking enforcement and assistance to trafficking victims, including minors. Partnering with states to address human trafficking of both foreign born and domestic victims can be achieved without preemption of existing state laws or creation of any unfunded federal mandates. NCSL encourages specialized demonstration and discretionary grant programs that assist states in focusing on the growing intergovernmental concern of human trafficking on U.S. soil.
NCSL supports means for enhanced cooperation between state and federal law enforcement. NCSL opposes proposals that blur jurisdictional lines of responsibility and serve to disrupt rather than support efforts of state and local law enforcement. NCSL opposes proposals that seek to remove from states and communities the responsibility for determining disciplinary procedures for state and local law enforcement.
NCSL opposes proposals to shift traditional federal responsibility for civil immigration enforcement to state or local law enforcement agencies and personnel. State and local jurisdictions should have the authority to enter into cooperative, voluntary agreements with the federal government for this or other traditionally federal enforcement matters, but should not be compelled by federal law to do so.
NCSL acknowledges that a national debate on election reform continues and that any Congressionally mandated changes in election processes necessarily will impact state and local elections. State law controls the processes and the administration of matters pertaining to federal, state, and local elections. It logically follows that NCSL, as the national voice of the various state legislatures, should be at the center of this national debate. NCSL reaffirms its commitment to the Voting Rights Act of 1965 and all other civil rights legislation that ensures a person’s right to vote.
NCSL maintains that it must be an equal partner with Congress or any federal agency or commission charged with regulating or establishing elections guidelines because this effort must be a partnership among federal, state, and local officials. In this respect, NCSL believes that federal legislation that affects the states should be drafted with substantial input from those who would be responsible for its implementation. Federal legislation impacting state election policies or procedures should not curtail state innovation and NCSL believes that federal legislation should include reasonable timeframes for implementing state and local programs.
NCSL acknowledges that public confidence in the election process is important to state legislators. Therefore, NCSL opposes any federally mandated elections standards that are not accompanied by sufficient federal funding and that are preemptive of sound, constitutional state policies and procedures. . NCSL believes that such funding should be based on broad principles, and supports a federal grant formula which awards money to states for broad-based purposes dealing with election reform, and opposes any funding mechanism, which seeks to mandate specific requirements on the states.
NCSL supports federal formula grant funding to states for the following broad purposes:
- Improving election technology, systems and ballot design;
- Facilitating voter registration, verification and maintenance of voter rolls;
- Improving the accuracy and security of election procedures and vote counts;
- Educating citizens on representative democracy and election processes and systems;
- Providing greater access to voter registration and polling places especially for rural and disabled voters; and
- Providing training and education opportunities for elections personnel.
NCSL recognizes the functions of the Election Assistance Commission (EAC) are important to the development of election equipment standards, dissemination of election-related statistics and information, and states benefit from the EAC’s skilled expertise in these areas.
Continuity of Congress
NCSL acknowledges the possibility that a catastrophic national emergency may render the U.S. House of Representatives unable to conduct the business of the country due to the death or permanent incapacitation of more than 100 of its members. In order to keep the national government going during such a crisis, From time to time, Congress has examined various means of filling vacancies in the U.S. House of Representatives by drafting legislation that proposes a uniform special elections process containing federal mandates for the timing of such elections. Special elections have traditionally been a state responsibility that does not merit federal intervention.
Given that all states have a special elections process in place that is procedurally best for that state, NCSL would support federal legislation that would allow for state flexibility with respect to the timing of and other rules governing special elections, and would oppose federal legislation that sought to preempt state laws governing special elections.
Campaign Finance Reform
All candidates for state office are subject to state campaign finance and public disclosure laws. NCSL supports the ability of states to consider and pass legislation governing campaign finance at the state level. NCSL opposes efforts to federalize these state and local campaign finance regulations, and opposes all efforts to bring state legislators under the regulations of the Federal Election Commission (FEC). NCSL takes no position on campaign finance reform for federal candidates. NCSL supports the Supreme Court's holding in Buckley v. Valeo that any limit on spending money to publish ads or brochures would necessarily bar speech, but that limitations on the amount of an individual's cash contribution for purposes of the express advocacy for the election or defeat of a candidate are constitutional.
NCSL affirms its opposition to federal campaign finance reform efforts that preempt state laws regulating candidates running for state office.
Enfranchising Virgin Island Residents
WHEREAS, the Virgin Islands is a territory of the United States; and
WHEREAS, the Virgin Islands, like the other 50 continental states, participate in the Democratic and Republican nomination process for the Office of President of the United States; and
WHEREAS, Virgin Islanders who reside in the continental United States have the right to vote for the President of the United States; and
WHEREAS, Virgin Islands residents who are United States citizens, however, are denied voting rights and access to presidential elections; and
WHEREAS, the Democratic and Republican conventions are the territory's only chance at having a say in who the next president is; and
WHEREAS, this denial began with the controversial and divided Supreme Court decisions known as the Insular Cases, which were decided shortly after the United States acquired overseas territories; and
WHEREAS, the Insular Cases established a doctrine of "separate and unequal" constitutional treatment for overseas U.S. territories; and
WHEREAS, the Insular Cases defined the premise that the United States Constitution applies "only in part in unincorporated Territories" but "in full in incorporated Territories destined for statehood"; and
WHEREAS, the Virgin Islands is an unincorporated territory of the United States; and
WHEREAS, the Virgin Islands is subject to the Congress' plenary powers under the territorial clause of Article IV, section 3, of the U.S. Constitution; and
WHEREAS, the Constitution of the United States specifies that the President and the Vice President shall be elected by electors chosen by the States; and
WHEREAS, the Virgin Islands is not a part of any state; but, like states, are able to elect their own governor and legislature; and
WHEREAS, Virgin Islanders, in a few years, will enjoy 100 years of American citizenship though never given the opportunity to elect the President of the United States; and
WHEREAS, children born abroad to a United States citizen are given American citizenship with full voting rights; and
WHEREAS, the Virgin Islands is effectively disenfranchised at the national level due to its inability to elect a President; and
WHEREAS, though unable to elect a President, the Virgin Islands must abide by and is subject to all national policies, rules, regulations and laws enacted and in the United States; and
WHEREAS, Virgin Islanders have served in the United States military and fought in wars on behalf of the United States prior to obtaining the privilege of becoming citizens of the United States; and
WHEREAS, young males who are Virgin Islanders, must register for the selective service and can be drafted by the same Commander in Chief that they cannot vote for; and
WHEREAS, a number of scholars have concluded that the United States national electoral process is not fully democratic due to U.S. Government disenfranchisement of United States citizens residing in United States territories;
THEREFORE BE IT RESOLVED, that the National Conference of State Legislatures respectfully urges the Congress of the United States to review the United States Constitution as it relates to the disenfranchisement of Virgin Islands residents and its inability to elect a President and implement the necessary revisions to grant Virgin Islands residents the right to vote in United States presidential elections;
BE IT FINALLY RESOLVED, that a copy of this Resolution shall be forwarded to the President of the United States of America, Honorable Barack Hussein Obama; Honorable John Boehner, Speaker of the House of Representatives; each member of the United States Congress and the United States Virgin Islands Delegate to Congress, Donna Christian-Christensen.
Expires August 2015
Our American federalism creatively unites states with unique cultural, political, and social diversity into a strong nation. The Tenth Amendment is the cornerstone of constitutional federalism and reserves broad powers to the states and to the people. Federalism protects liberty, enhances accountability and fosters innovation with less risk to the nation. NCSL strongly urges federal lawmakers to maintain a federalism that respects diversity without causing division and that fosters unity without enshrining uniformity.
Individual liberties can be protected by dividing power between levels of government. "The Constitution does not protect the sovereignty of states for the benefit of the States or state governments as abstract political entities, or even for the benefit of public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals." New York v. United States, (1992 This careful balance enhances the express protections of civil liberties within the Constitution.
By retaining power to govern, states can more confidently innovate in response to changing needs. As Justice Brandeis wrote: "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, (1932). It is a suitable role for the federal government to encourage innovation by states. Federal officials should recognize that failure is a risk associated with experimentation and permit states room to act and evaluate without judging prematurely the value of innovative programs. States are inherently capable of moving more quickly than the federal Congress to correct errors observed in policy and can be more sensitive to public needs.
The Supreme Court has sent a strong message to Congress that its powers under the Commerce Clause have boundaries (United States v. Lopez, (1995). Congress must heed the wisdom of Lopez and not exercise its commerce powers without a compelling need to do so. Similarly, the Supreme Court should add to the ability of states to respond to pressing social and economic problems by interpreting the dormant Commerce Clause in a restrained manner sensitive to the powers of states in the federal system.
Responsiveness to constituencies within state boundaries is diminished as the power of the federal government grows disproportionately. Disturbingly, federal constraints upon state action grow even as states are increasingly acknowledged as innovators in public policy. To revitalize federalism, the three branches of the national government should carefully examine and refrain from enacting proposals that would limit the ability of state legislatures to exercise discretion over basic and traditional functions of state government.
NCSL dedicates itself to restoring balance to federalism through changes in the political process and through thoughtful consideration and broad national debate of proposals to amend the Constitution or to clarify federal law that are specifically intended to redress the erosion of state powers under the Constitution. NCSL does not by this policy endorse any specific proposal for or against constitutional change or call for a constitutional convention. NCSL continues to support all civil rights laws in force in this country.
Congress must allow states flexibility to shape public policy. Creative solutions to public problems can be achieved more readily when state laws are accorded due respect. Every preemptive law diminishes other expressions of self-government; therefore, state legislators believe that state laws should never be preempted without substantial justification, compelling need, and broad consensus. Our federalism anticipates diversity; our unity does not anticipate uniformity. While proponents of preemption may claim expected benefits, these must be balanced against the potential loss of accountability, innovation and responsiveness.
Preemption may be warranted in specific instances when it is clearly based upon provisions of the U.S. Constitution authorizing such preemption and only when it is clearly shown (1) that the exercise of authority in a particular area by individual states has resulted in widespread and serious conflicts imposing a severe burden on national economic activity or other national goals; (2) that solving the problem is not merely desirable, but necessary to achieve a compelling national objective; and (3) that preemption of state laws is the only reasonable means of correcting the problem.
The authority of Congress under the Supremacy Clause to preempt state legislation is exercised by the federal government assuming responsibility for regulating under federal law. In addition, the Supremacy Clause allows the federal government to offer states the option of regulating pursuant to federal standards. The power of Congress to thus preempt state authority must not be expanded to permit the federal government to commandeer states to administer federal programs.
Congress shall provide reasonable notice to state legislative leaders and governors of any congressional intent to preempt and shall provide them with opportunity for formal and informal comment prior to enactment. To ensure that the national legislature knows the effects of its decisions on other levels of government, members of Congress shall investigate which of their state's laws would be preempted by federal legislation before they vote on the preemptive legislation. Congress shall develop processes to understand better the impact of proposed bills on federalism. Congress shall refer bills that affect state powers and administration to intergovernmental subcommittees.
States should not be undercut through the regulatory process. It is not acceptable for un-elected federal agency officials to exercise legislative authority in the guise of regulation and to preempt the decisions of the elected legislatures of the sovereign states. Any agency intending to preempt state laws and rules must have the express authority or clear evidence from Congress of the intent to preempt. The Executive Order on Federalism (E.O. 13132) provides guidance for agency examination of intergovernmental impact and should be codified and enforced. Circumvention of rule-making procedures through interim final rule-making and the like, should be prohibited. An appropriate congressional committee shall review agency regulations to identify unjustified intrusions into state sovereignty.
NCSL believes that states should partner or contract with religious organizations and engage in charitable choice initiatives pursuant to state and local laws and prerogatives, not nationally mandated standards.
NCSL opposes any charitable choice legislation that preempts state and local laws, is retroactive in its application, undermines existing state-federal grant programs and partnerships by offsetting their funding, creates new private rights of action for individuals to sue states in federal court, and mandates participation on the states according to federal guidelines. NCSL does not support charitable choice legislation that creates an individual entitlement to services in programs where such entitlement does not exist, especially where additional funding is not provided.
5th Amendment Takings
NCSL strongly opposes any federal legislation or regulation that would: 1) attempt to define or categorize compensable "takings" under the Fifth Amendment to the United States Constitution; (2) interfere with a state's ability to define and categorize regulatory takings requiring state compensation; (3) preempt state eminent domain constitutional provisions or statutes; or (4) infringe on state sovereignty under the Eleventh Amendment. NCSL supports collaborative examinations of state and federal use of eminent domain authority.
Grant Conditions and Mandates
When national policy-makers ignore the fiscal impact of proposals that are to be implemented at the state level, it confronts states with an impossible choice – ignore federal law and face stiff financial penalties, or underfund other important state priorities in order to comply with federal unfunded mandates. Ignoring state impact also creates a rift in intergovernmental relations between states and the federal government the federal government must be accountable for its policy decisions that ultimately affect the level of services provided by the states or the level at which states are compelled to tax their citizens. States must retain the predominant role in shaping policies for which they will allocate the predominant share of resources.
Among the distortions caused by the excessive power of the national government is the separation of decisions to tax from decisions to spend. The intractable federal debt makes federal spending decisions more difficult and increases reliance on mandates or grant conditions to accomplish goals set by Congress. NCSL maintains that the federal government must fully appropriate designated funds for before application of penalties to states contained in authorized programs are applied. Where statutes are not clear, regulatory guidance must be established before states become subject to penalties. Federal resources shall be adequate to offer meaningful encouragement to state efforts and, at a minimum, to provide technical assistance and oversight.
In New York v. United States, the Supreme Court outlined guidelines appropriate for limiting regulation under the Spending Clause. Conditions should be unambiguous and should be reasonably related to the purpose of the expenditure NCSL opposes conditions on grants made to the states beyond such conditions that are necessary to specify the purpose of the expenditure, except where the conditions, such as those relating to civil and individual rights, may fulfill powers expressly delegated to Congress by the Constitution. Existing grants should not automatically become subject to new conditions.
NCSL believes that federal grants to states can achieve national goals without disrupting state laws and procedures. NCSL supports federal legislation that respects the role of the legislature and that does not create an unnecessary preference for state executive decision-making. NCSL maintains that funds received by a state under provisions of federal law shall be subject to appropriation by the state legislature, consistent with the terms and conditions required under such federal law. Legislatures shall also retain authority to designate implementing agencies and to review state plans and applications for assistance. State court systems shall not be commandeered to implement federal policies; in the event federal actions will result in an increased burden on state courts, then the federal government shall also provide funds to implement action by the courts.
NCSL opposes Congress placing responsibility for administrative oversight of grant conditions in the federal courts by relying on beneficiaries to enforce federal grant requirements through lawsuits. In the event the courts are to be relied upon for enforcement, then the federal government shall waive its sovereign immunity and become subject to suit for failures in administration of programs. This policy does not relate to access to federal courts for enforcement of constitutional rights.
In Seminole Tribe of Florida v. Florida (1996), and its progeny, including Alden v. Maine (1999), Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999), College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd. (1999), and Kimel v Florida Bd. Of Regents (2000) the Supreme Court strengthened the concept of federalism by recognizing a major limitation on Congress' Article I Commerce Clause power and its power under Section 5 of the 14th Amendment as applied to the States. In so doing, the Court confirmed that the Eleventh Amendment to the Constitution is a protection of state sovereignty that is purposeful in our federal design. In Seminole Tribe, the Court held that Congress lacks power under Article I to abrogate the states' sovereign immunity from suits commenced or prosecuted in the federal courts. This ruling was extended in Alden v. Maine where the Court held that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject non-consenting States to private suits for damages in state courts. The Court in Alden also recognized that sovereign immunity does not derive from the 11th Amendment, but from the structure of the original Constitution itself. The states have been recognized as sovereign entities even before the ratification of the U.S. Constitution.
The Court further constrained Congress' ability to abrogate state sovereign immunity under Section 5 of the 14th Amendment to the Constitution in Florida Prepaid. The Court held that Congress' powers under § 5 of the 14th Amendment are powers of enforcement only, and that these enforcement powers are remedial. This means that in order for sovereign immunity of a state to be waived under Section 5, Congress must be able to identify a pervasive pattern of wrongdoing under the 14th Amendment, and the federal legislation seeking to remedy the wrongdoing, must be narrowly tailored to do so.
It is NCSL’s position that if Congress intends to abrogate state sovereign immunity it must state its intent in unmistakably clear language, and the federal government should waive its own immunity in order to enhance legislative consideration of the risks. Normally, equitable and injunctive remedies are sufficient safeguards for ensuring compliance with the law.
Federal expansion of criminal jurisdiction, while not specifically preempting state laws, diminishes the role of state legislatures by permitting federal and state prosecutors to circumvent state law. The choice to prosecute in federal court based upon federal penalties entails a choice to by-pass state legislative responsibility. NCSL opposes the
federalizing of state criminal offenses because federalism is weakened and because the role of federal courts as courts of limited jurisdiction is thereby undermined. NCSL recognizes that specific crimes may be appropriate for federal action if a systemic failure makes state action impossible or ineffective; such crimes may include those that have complex international or interstate implications, which relate to the protection of civil rights, or where conflicts prevent effective state or local prosecution. NCSL deems inadequacy of state resources to be an insufficient reason for federal takeover of criminal jurisdiction.
It is NCSL’s position that in the process of selecting nominees to the federal courts, the President and the Senate should -- among other considerations -- be mindful of the vital role federalism plays within our constitutional framework.
NCSL endorses periodic examination by Congress of the state of American federalism. Members of Congress shall expand formal and informal communications with their state legislatures in order to defend federal legislation that diminishes state powers and to explore less intrusive means of achieving national goals. In exploring the dimensions of federalism, Congress shall consider the need for statutory and constitutional remedies to restore balance. Together, we should revive appreciation for the principle that sharing power between levels of government enhances America's ability to develop responsive policy in a changing world.
There is a general consensus among federal, state, and local public policy leaders, and emergency management experts that “all disaster response is local,” that any response to a terrorist attack or natural disaster begins at the local level where the event occurs, and involves state and federal response as local, then state, resources are overwhelmed by the magnitude of the event The National Conference of State Legislatures, urges Congress and the Administration to partner with NCSL and other organizations representing state and local government to prepare our nation for national disasters and threats to homeland security. NCSL urges Congress and the administration to:
- Continue to channel funding directly to the states to ensure compliance with statewide strategies for maximum coordination and require that such funds be subject to the state legislative oversight or the state appropriation process;
- Recognize the roles of state legislatures in the development of future guidance frameworks and Congressional legislation;
- Provide state flexibility among grant program categories for spending-planning, training, equipment, and exercises allowing transfer of funds across categories;
- Continue to provide a minimum grant in states that appear to have low risk, vulnerability, and criticality factors, in order to sustain the basic response infrastructure for public safety and public health emergencies;
- Consult with NCSL and state legislatures regarding each state's cost for the development and implementation of performance standards and other accountability measurements related to grant programs; and
- Ensure that funding for any new grant programs complements, and DOES NOT replace, existing funding sources for other key programs such as first responder programs.
- Recognize the strain on personnel, equipment, and other resources that activation of the National Guard for federal services poses for state and local ability to secure the homeland from terrorism and natural disasters; and to work with state legislatures to develop programs to ensure adequate resources to maintain domestic security. NCSL strongly opposes any effort to preempt domestic control of the National Guard from state authority.
- Develop a centralized grant application process for homeland security and emergency preparedness activities; utilize an all-hazards approach including terrorism, natural and man-made disasters, and public health emergencies; and avoid adding new compliance requirements to existing grant programs.
- Fund the Emergency Management Planning Grants (EMPG) at a level that meets current needs.
- Provide funding to support the Emergency Management Assistance Compact (EMAC).
- The Department of Homeland Security (DHS) should work closely with NCSL, individual state legislatures, state emergency management and public safety leaders to meet the goal of fully funded and fully operating Fusion Centers that blend relevant law enforcement and intelligence information analysis and coordinate security measures to reduce threats in their communities and to continue to improve the quality and quantity of analytical intelligence products that are provided to state and local governments.
NCSL recognizes that the nation’s information infrastructure is rapidly becoming one of the most serious threats our country has ever encountered. In order to combat this increasing threat, it is essential that all levels of government work together to develop proper solutions. NCSL urges Congress and the Administration to:
- View state and local governments as critical stakeholders;
- Avoid unfunded federal mandates and preemptions on state and local partners;
- Collaborate with state and local governments to invest in cybersecurity awareness; and
- Maintain the civil liberties and privacy of all citizens while sustaining the safety and stability of the internet and electronic communications.
BORDER SECURITY & ENFORCEMENT
Securing all of America’s borders, ports, and airports is essential to preserving our national security and maintaining the safety of all Americans. NCSL urges the federal government to fulfill its responsibilities with regard to border security and encourages a renewed state-federal cooperation in countering human trafficking, weapons and drug smuggling. NCSL calls on the federal government to increase its enforcement of these crimes and encourages countries of origin to provide reentry facilities, transition services and transportation for returned inmates.
NCSL supports full, federal funding for increases in Department of Homeland Security border enforcement personnel where they are most needed and necessary improvements in facilities, technology and infrastructure.
PRESIDENTIAL DISASTER DECLARATION
Upon the issuance of a Presidential Disaster Declaration (PDD), the Federal Emergency Management Agency (FEMA) calculates federal aid to states based on a per capita equation tied to state or local population pursuant to 44 C.F.R. Section 206.4. FEMA uses this per capita figure as one of several contributing factors when deciding whether to grant public assistance to a state.
The National Conference of State Legislatures calls upon the Administration to consult with states and requests transparency in their review and reform standards, policies, and procedures. When determining aid per capita for states, individual designations of localities should be recognized and respected within states NCSL also requests that FEMA exercises the greatest level of flexibility possible in granting public assistance disaster relief funds that respect the ubiquities of different states.
The National Conference of State Legislatures (NCSL) recognizes the challenges facing our country in matters related to immigration. Federal immigration policy must strike a balance among core principles of our democracy: preserving the safety and security of our nation, encouraging the economic strength of our states and communities, and recognizing our history as a nation of immigrants. The impact of the federal government’s immigration policy decisions are directly felt by the states who not only implement programs required by federal law but also encourage the integration of immigrants into the economic, social and civic life of their adopted communities. States often bear the costs of immigration, especially in our education, health and law enforcement systems, with limited federal reimbursement.
State legislators call on Congress and the Administration to pursue immigration reform that enhances our border security and addresses the imbalance in the state-federal relationship. Immigration reform and implementation requires true collaboration between state and federal leaders. Our nation’s immigration laws must not contain unfunded mandates nor preempt areas of existing state authority. Federal immigration reform will not be comprehensive unless it addresses the fiscal impact of immigration on the states.
Security and Law Enforcement
Border Security & Enforcement
Securing all of America’s borders, ports, and airports is essential to preserving our national security and maintaining the safety of all Americans. NCSL urges the federal government to fulfill its responsibilities with regard to border security and encourages a renewed state-federal cooperation in countering human trafficking, weapons and drug smuggling. NCSL urges the federal government to increase its enforcement of these crimes.
NCSL supports full, federal funding for increases in Department of Homeland Security border enforcement personnel where they are most needed and necessary improvements in facilities, technology and infrastructure.
The Role of State and Local Law Enforcement
NCSL is strongly opposed to any efforts to shift enforcement of civil immigration law to state and local law enforcement agencies. State legislators believe that enforcement of federal civil immigration law is a federal responsibility and that state involvement in immigration enforcement activities should only be a state option.
NCSL opposes efforts to criminalize violations of civil federal immigration law in an effort to shift federal enforcement responsibilities to state and local law officers. State and local government law enforcement and public safety personnel must already incarcerate, detain and transport illegal immigrants who have committed crimes, without adequate federal funding. NCSL strongly supports full reimbursement to states for the State Criminal Alien Assistance Program (SCAAP). The current SCAAP program only provides 17% reimbursement of current costs, according to a recent General Accountability Office study. NCSL also opposes any effort to coerce state participation in enforcement of federal immigration law by withholding SCAAP program funds.
NCSL believes that employment verification is a critical component of enforcement requiring federal reforms. NCSL supports the rights of states to provide incentives and sanctions to encourage compliance. The U.S. Supreme Court case in Chamber of Commerce v. Whiting agreed with this view. NCSL opposes efforts to treat state governments differently from the private sector in meeting federal employment verification requirements.
NCSL supports E-Verify in its current voluntary form. NCSL urges Congress and the Administration to improve the program to handle the interfaces between the Social Security Administration and Department of Homeland Security databases and to eliminate discrepancies and backlogs. NCSL opposes any efforts to mandate E-Verify until the system is adequately funded and performs to the benefit of all parties without imposing unfunded liabilities on the states.
Enforcement efforts should be focused on bad actors – employers and employees alike. NCSL is deeply concerned about identity theft and counterfeit documents. NCSL encourages the DHS to test approaches that confirm the identity of the individual as part of the verification process. NCSL urges the federal government to tighten its enforcement surrounding counterfeit documents. DHS needs to improve its education and training for employers regarding worksite verification.
SAVE (Systematic Alien Verification for Entitlement)
NCSL strongly believes that the federal government should pay for the cost of SAVE and/or new verification requirements. Unfunded verification requirements for state programs or federal programs that states administer are a cost-shift to states and violate the Unfunded Mandates Act.
NCSL believes that federal enforcement activities – at the worksite or in communities - should be coordinated with state and local government. NCSL urges the federal government to be mindful that the states bear the primary responsibility for the children who are separated from their families as a result of federal enforcement activities. NCSL supports federal coordination with child welfare agencies to guarantee that children are not endangered and that their best interests are protected.
ELIMINATING COST-SHIFTS TO THE STATES
State Impact Assistance
The 1996 federal welfare law established a five year bar on SCHIP/Medicaid, Supplemental Nutrition Assistance Program (SNAP), TANF and SSI for legal immigrants. Yet, state governments continue to bear significant costs for essential programs and services such as education and public health that promote public safety, reduce community tensions and integrate newcomers into our communities. This could include those who may be here on a temporary basis. State governments fund critical services including: emergency health care, public health, safety and education and English language instruction.
NCSL urges Congress to include in immigration reform a funding stream to address the entire fiscal impacts on state governments of any guestworker program, earned legalization and/or increases in the number of immigrants. Such funding must be subject to appropriation by state legislatures so that it can be best targeted to the state’s individual needs including government, faith-based or nonprofit institutions. These grants must take into account the fact that some states have existing high levels of noncitizens and some states have recent high growth in the number of noncitizens. Grants must be allocated in a way that assists both categories of states. NCSL opposes any measure that does not contain state impact assistance.
WORK, FAMILY AND REFUGEE ASSISTANCE
Temporary Worker Program
NCSL supports the creation of a temporary worker program. Providing a legal channel for those that want to come to our country for work will reduce illegal border crossings and enable federal law enforcement agents to focus their efforts on individuals attempting to enter or already in the country for the purpose of doing our nation harm. A temporary worker program for critical industries will also strengthen many sectors of our economy by providing a legal workforce. NCSL believes that Congress and the Administration should work together to develop a system that responds to the nation’s needs effectively and efficiently.
Temporary worker visas help to fill labor shortages in seasonal and specialized occupations that have been caused by changing demographics and a need for expertise. NCSL urges the Administration and Congress to consider demonstration projects in health and education and work with states to develop sound policies that will prevent cost shifts to states. The federal government should work with states who wish to streamline and improve efficiencies in temporary worker and investor visa processing, and identify areas of needed flexibility for exchange visitor programs.
NCSL affirms the right and responsibility of the federal government to determine federal immigration policy, including the existence and form of an earned legalization program. NCSL supports the creation of an earned legalization program for illegal immigrants currently in the country. NCSL opposes amnesty. Earned legalization should include appropriate fines and penalties that are proportional to the violation. A mass deportation or crackdown on illegal immigrants currently in the country would have detrimental impacts on our communities because immigrant workers and entrepreneurs contribute to the economic vitality of our nation and citizen children in mixed-status households would be adversely impacted.
NCSL opposes federal efforts to deny benefits to legal immigrants and to citizens who are foreign born. This shifts the cost of taking care of needy legal noncitizens to the states and localities. Eliminating federal benefits to noncitizens or deeming for unreasonable amounts of time does not eliminate the need, and state budgets and taxpayers will bear the burden. NCSL supports:
- the extension of deadline for those elderly and disabled refugees so that they can continue to receive SSI benefits while pursing citizenship;
- making affidavits of support legally binding so that sponsors of immigrants will live up to their commitment to support them;
- requiring voluntary agencies to live up to their commitment to refugees;
- enforcing Department of Labor certification process for employer sponsorship for both temporary and permanent foreign workers; and
- a limited period of alien to sponsor deeming.
NCSL supports the HHS regulation limiting the definition of a means-tested benefit to Temporary Assistance to Needy Families (TANF), Medicaid, Supplemental Security Income (SSI), State Children’s Health Insurance Program (SCHIP) and Food Stamps.
NCSL supports federal efforts to assist individuals and families forced to flee their native land in fear for their personal safety. The problem of political refugees is an international one, and consequently demands the cooperative efforts of many countries.
While refugees, Cuban and Haitian Entrants, and asylees continue to be accepted, federal support which provides income and medical assistance, social services, education, employment and training and other needed support has continued to be reduced, shifting these costs to state and local governments. The existing federal domestic assistance program appropriately provides 100 percent federal funding for income and medical assistance after settlement. States should be reimbursed for cash and medical assistance during the resettlement period for 36 months as provided by law. States have been willing to accept refugee policy decisions that are made by the federal government; to continue this coordination, the federal government must provide adequate financial assistance to aid refugees in resettlement. NCSL believes that funding should be more flexible to allow states to respond to changing needs. The cost of resettlement must not be shifted to the states.
The federal government should not raise the admissions ceiling without adequately compensating states for resettlement costs. NCSL is disturbed by the recent trend to admit refugees under "refugee-like" categories that are not eligible for federally reimbursed services.
The primary goal of the federal domestic assistance program is to assist refugees and entrants to become independent and self-sufficient members of the community. NCSL urges the federal government to improve the track record of the domestic assistance program in meeting the goal of self-sufficiency and independence for refugees.
The federal government should provide English and citizenship instruction as well as job training to refugees, where possible, before they arrive in the United States. This up-front investment should reduce costs in the domestic assistance program and should result in a more successful effort in producing self-sufficient and independent citizens. NCSL asks the Office of Refugee Resettlement(ORR) to assist states with efforts to strengthen refugee integration services. It is also critical for the federal government to support English and citizenship instruction to refugees already in the United States who, according to federal law, will lose access to public benefits unless they become citizens within seven years.
In addition, NCSL strongly urges the federal government to avoid further placements in areas that are already heavily impacted with refugee or Entrant populations, experiencing a shortage of rental housing for low-income households, and experiencing overcrowding in the local school system. NCSL urges the federal government to continue to work with states on the issue of secondary migration.
NCSL urges the federal government to continue the health screening that is currently provided to the refugees, where possible, before they arrive in the United States and to improve follow-up. Follow-up should include, but not be limited to, providing instruction for continued medical care to refugees in the home. Improved outreach and orientation to our health care system is critical especially in light of language and cultural differences. State health screening support is critical and should not be eliminated.
NCSL urges the federal government to coordinate and consult with state and local governments is an integral component of a successful placement policy and we urge the federal government to improve its efforts in this area. It is equally important to have the voluntary agencies and organizations representing refugees participate in this coordinated effort. NCSL supports extended protection to victims of trafficking, victims of domestic violence, and unaccompanied minors.
CITIZENSHIP AND INTEGRATION
Naturalization and Integration
NCSL supports the promotion of citizenship as a national priority. Delays in citizenship applications are unjustified. The federal government should allocate sufficient resources to a for more efficient citizenship adjudication and integration processes. The costs of becoming a citizen are excessive and a barrier to those working families who seek citizenship. NCSL strongly urges the federal government to assist the states in their efforts to promote naturalization and to address all barriers to naturalization.
Declaration of Youth Violence as a Public Epidemic in The United States (Resolution) (Joint with Health and Human Services Committee)
The National Conference of State Legislatures (NCSL) declares youth violence to be a public health epidemic and supports the establishment of nationwide trauma-informed education by Congress and the Administration.
NCSL believes youth across our nation are committing acts of violence against one another and throughout their communities causing victimization among their peers, social and psychological dysfunction, leading to in some cases, symptoms of Post-traumatic Stress Disorder.
- A national survey by the Centers for Disease Control and Prevention (CDC) found that United States adults reported approximately 1.56 million incidents of victimization by perpetrators estimated to be between 12 and 20 years of age. The CDC states, "Violence is a serious public health problem in the United States. From infants to the elderly, it affects people in all stages of life. In 2007, more than 18,000 people were victims of homicide and more than 34,000 took their own life." The CDC reports that many people survive violence and are left with permanent physical and emotional scars and that violence erodes communities by reducing productivity, decreasing property values and disrupting social services;
- In 1985, former United States Surgeon General C. Everett Koop declared violence as a public health issue and called for the application of the science of public health to the treatment and prevention of violence. In 2000, former United States Surgeon General David Satcher declared youth violence as a public health epidemic, and released a report that deemed youth violence as a threat to public health and called for Federal, state, local and private entities to invest in research on youth violence. Additionally, the report also states that the public health approach to youth violence involves identifying risk and protective factors, determining how they work, making the public aware of these findings, designing programs to prevent or stop the violence and calls for national resolve to confront the problem of youth violence systematically; to facilitate entry of youth into effective intervention programs rather than incarceration; to improve public awareness of effective interventions; to convene youth, families, researchers and public and private organizations for a periodic youth violence summit; to develop new collaborative multidisciplinary partnerships; and to hold periodic, highly visible national summits.
- The Pennsylvania State Conference of the National Association for the Advancement of Colored People (NAACP) Branches, through its Education Committee members, have given testimony before the Education Committee of the House of Representatives calling for attention to the impact of trauma brought about by violence and other adverse conditions on children's academic performance as well as their relationship with school and the broader society.
- Due to the violence epidemic, youth suffer from either primary or secondary trauma. Primary trauma is trauma associated with the violent death of a loved one. Secondary trauma results from exposure to violence present within their community. Exposure to violence in families and communities, as well as exposure to homicidal death, can lead to youth-specific post-traumatic stress disorder with complex effects as well as homicidal grief. NCSL recognizes that trauma is not easily visible within youth because it requires proper assessment and, due to the amount of violence youth are currently exposed to, measures should be taken without delay, to properly assess the issue.
NCSL supports the CDC statement that schools provide "a critical opportunity for changing societal behavior because almost the entire population is engaged in this institution for many years, starting at an early and formative period" and "Universal school-based violence prevention programs represent an important means of reducing violent and aggressive behavior in the United States."
NCSL strongly supports a voluntary state/federal partnership to increase education in violence prevention and PTSD awareness through education.
Expires August 2015