State Legislatures Magazine: March 1999

Editor's Note: These articles appeared in the March 1999 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

The Chief Lays Down the Law

Federalizing Crimes
Message to Congress

The Chief Lays Down the Law

Chief Justice William Rehnquist tells Congress to resist the temptation to turn every highly publicized crime into federal law. Crime and law enforcement are the states’ business.

By David G. Savage

Chief Justice William H. Rehnquist, a long-time defender of the states’ special role in the American system of government, has denounced Congress for repeatedly enacting federal criminal laws that overlap state laws.

The states have the primary role in the area of crime and law enforcement, he said in his annual message on the judiciary, and Congress needs to think twice before turning "every highly publicized societal ill or sensational crime" into a new federal law.

"The trend to federalize crimes that traditionally have been handled in state courts not only is taxing the judiciary’s resources," he said, "but it also threatens to change entirely the nature of the federal system ... Federal courts were not created to adjudicate local crimes, no matter how sensational or heinous the crimes may be. State courts do, can and should handle such problems."

Before the 1960s, the federal role in law enforcement was small and distinct. Then, fears of a "national police force" were often voiced. For that reason, the FBI steered clear of many investigations because the alleged crime had no interstate link. However, when civil rights activists in the South met with violence, federal authorities were prompted to take a more aggressive role. By the 1970s, the Nixon administration’s push for "law and order" also translated into more federal involvement in crime fighting. Perhaps the greatest change came in 1986 when Congress escalated the "war on drugs" by giving U.S. attorneys broad powers to prosecute drug crimes.

FEDERALIZING CRIMES
In this decade, Congress has added a series of new federal crimes, often with little fanfare. Rehnquist cited as examples the Anti-Car Theft Act of 1992 designed to combat the wave of highly publicized carjackings, the Child Support Recovery Act of 1992 intended to prosecute so-called "deadbeat dads" and the Animal Enterprise Protection Act of 1992 that allows the prosecution of animal-rights activists who break into research labs.

For his part, the chief justice adheres to the old-fashioned view. "The principle was enunciated by Abraham Lincoln in the 19th century and Dwight Eisenhower in the 20th century: Matters that can be adequately handled by the states should be left to them. Matters that cannot be so handled should be undertaken by the federal government," he said.

Not all new federal laws transfer cases away from the states, Rehnquist noted, and he praised two 1996 measures that actually do the reverse. The Prison Litigation Reform Act makes it harder for inmates to sue state prison officials in federal court. Similarly, the Anti-Terrorism and Effective Death Penalty Act makes it harder for state Death Row inmates to appeal their convictions in federal court.

MESSAGE TO CONGRESS
As chief justice of the United States, Rehnquist not only leads the Supreme Court, but heads the entire federal judiciary. In recent years, he has used his annual report to send a loud message to Congress or the White House, and his words have gotten results. As 1998 began, he chided Senate Republicans for putting off votes on President Clinton’s nominees to federal judgeships. Heeding the message, the Senate approved 65 new judges last year, up from 36 in 1997 and only 16 in 1996.

This year he is urging Congress to hold hearings on federalism to establish new standards for adding new federal crime laws. "A common element of the recommended threshold standard," he said, is "remedying state failure." So long as the states are doing the job, Congress should not enact a new federal law to cover the same ground, he said.

In April, the Supreme Court will take up an important federalism issue. Judges around the nation are split over whether states or state agencies can be sued in federal courts for allegedly violating a patent or infringing copyright.

Florida and 19 other states have established pre-pay tuition programs that allow parents to save money for their children’s college education. But the College Savings Bank, a private firm based in New Jersey, maintained the state had stolen its idea, and it sued the state for a patent infringement.

Three years ago, the high court said states were generally immune from being sued in federal court (Seminole Tribe vs. Florida). Nonetheless, one U.S. appeals court ruled the Constitution protects property rights and allows states to be sued if they take away someone’s private property. Twenty-four states joined Florida in appealing the issue to the Supreme Court, and in April the justices will hear oral arguments in the case of College Savings Bank vs. Florida Prepaid Postsecondary Education Expense Board.

David G. Savage, a frequent contributor to State Legislatures magazine, covers the Supreme Court for the Los Angeles Times.

NCSL Home Page

Visitor counts for this page.