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.
Cannabis and Federalism
The National Conference of State Legislatures (NCSL) maintains that the federal government should respect state decisions to regulate cannabis, including hemp in non-FDA approved cannabis products. NCSL recognizes that its members have differing views on how to treat cannabis in their states and believes that states and localities should be able to set whatever policies work best to improve the public safety, health, and economic development of their communities.
NCSL believes that federal laws, including the Controlled Substances Act (CSA), should be amended to explicitly allow states to set their own cannabis policies without federal interference and urges the administration not to undermine state cannabis policies. Where states have authorized cannabis production, distribution, and possession by establishing an effective regulatory scheme, the administration should direct federal prosecutors to respect state cannabis laws when exercising discretion around enforcement. NCSL maintains that the administration should prioritize its enforcement actions against criminal enterprises engaged in cannabis production and sale, and not against citizens who are compliant with state cannabis laws. Furthermore, NCSL urges Congress to prohibit the administration from using federal funds to enforce the CSA in a manner inconsistent with these enforcement priorities.
The National Academies of Sciences, Engineering, and Medicine identified challenges and barriers in conducting cannabis research in a 2017 report: The Health Effects of Cannabis and Cannabinoids. NCSL urges Congress and the administration to address the challenges and barriers identified in this report. NCSL believes that it is especially important that Congress and the administration provide researchers access to cannabis in the quantity, quality, and type necessary to research the health effects of cannabis use and that adequate funding sources are made available to support cannabis and cannabinoid research that explores the health benefits and risks of cannabis use.
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 untenable position legally. 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 pre-empt 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 by:
- Pre-empting state laws governing the applicable statute of limitations in such cases;
- Pre-empting 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;
- Pre-empting state laws governing the drafting of pleadings and introduction of evidence in such cases;
- Pre-empting state laws and/or constitutions governing the awarding of attorney's fees; and
- Pre-empting 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:
Improvement of the Structure of State Criminal Justice Systems
NCSL urges the federal government to include states in the development stages and on the board of any commissions or task forces that work to improve or review state criminal justice structures. NCSL insists that the federal government not infringe on the legitimate rights of the states to determine their own criminal laws, but shall include them in the process of working to create better state criminal justice systems overall. As states strive to improve policies and practices related to criminal justice, NCSL supports direct participation by state policymakers in any federal policy efforts or proposed legislation to redefine how those relationships should be strengthened.
Federal Financial Assistance
States continue to improve criminal justice systems and policies and recognize that federal funding is sometimes necessary to implement state reforms in this area. Funding levels for Department of Justice grants and reimbursements to states should be maintained or increased. These programs include the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) grant program, the Second Chance Act grant program, the State Criminal Alien Assistance state reimbursement program (SCAAP), the Violence Against Women grant programs (VAWA), and the Community Oriented Policing Services grant programs (COPS). NCSL also supports any other federal grant program that seeks to assist states in addressing state criminal justice issues, such as school violence or opioid abuse reduction.
NCSL opposes Congressional proposals or federal regulations that would withhold a portion of state Byrne/JAG funds, COPS funds, SCAAP funds, or any other state criminal justice funds as a penalty for noncompliance with federal criminal justice policies. NCSL opposes the withholding of any federal criminal justice funding as a penalty for state policy choices. 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, but they are also 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, particularly with respect to juveniles. States should define and decide which juvenile offenders meet criteria for sex offender registration and be afforded the flexibility to implement state procedures that best address this population.
The federal government should provide technological support and federal funding assistance to states with regard to sex offender registration and public notice systems, including cooperation with the federal National Sex Offender Public Website (NCOPW). NCSL supports frequent and meaningful communication between the Department of Justice and state policymakers and implementing agencies so that information on procedures that meet or fail to meet federal guidelines and statutory requirements are effectively conveyed to the states.
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 toward 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 juveniles involved with the justice system 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 state juvenile justice programs. Federal involvement should be confined to providing grants and technical assistance to states that facilitate effective juvenile justice policies; 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 the illegal use of 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; substance misuse 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, substance misuse, and emerging drug threats, including but not limited to synthetic drugs and opioid abuse. 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 reentry and reintegration initiatives and criminal justice reinvestment approaches. These initiatives assist states in addressing recidivism, reentry, and healthy communities. State and local governments should be afforded maximum flexibility in using federal funds that support criminal justice systems, including but not limited to drug treatment and mental health services. NCSL opposes any legislation that would restrict state flexibility in sentencing and corrections policy. NCSL recognizes the importance of resources to address the mental health and substance misuses cases facing many states and local communities. NCSL urges the federal government to address federal expungement requirements which can impede reentry and job security.
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.
The issues surrounding the creation of sound state policy with respect to justice involved individuals with behavioral health needs is of growing importance to states. NCSL supports federal legislation that would enhance state research and implementation of sound policies that address behavioral health needs of justice-involved. NCSL supports federal legislation that seeks to enhance state treatment courts (mental health courts, drug courts, and veteran’s courts), training for state professionals that work with the justice involved with behavioral health needs, and funding that will complement state innovative programs in this area.
Crime Records and Information
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 preemption of state authority related to crime records and information.
NCSL supports the use of all federal databases including, but not limited to the 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 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 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 supports the full funding of the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) grant program and 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 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.
Given the states’ responsibility to conduct fair and accurate elections, 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 even minor changes to federal election laws and policy will impact states in varying degrees. NCSL supports working in partnership with federal officials to ensure that federal election reform efforts do not unnecessarily preempt existing state policy. In this respect, NCSL believes that federal legislation and guidance documents that affect the states should be drafted with substantial input from those who would be responsible for their implementation. Federal legislation or guidance 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.
In light of nation state actors’ efforts to probe state elections systems, NCSL urges congress and the administration to partner with states on cybersecurity to ensure elections remain fair, accurate, and free from foreign interference.
NCSL acknowledges that public confidence in the election process is of utmost importance to state legislators. Therefore, NCSL opposes any federally mandated elections standards that are either not accompanied by sufficient federal funding or 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 elections including cybersecurity and opposes any funding mechanism, which seeks to mandate specific requirements on the states.
In the specific area of cybersecurity, federal support of state actions is now required. In 2002 when HAVA was enacted, cybersecurity was a virtually unknown concern. Now it is paramount, and states do not have the resources or capacity to protect against cyber interference in election systems without federal assistance. Federal assistance must include accurate and timely communications to states about threats and known cyber events as well as sufficient federal funding. Therefore, NCSL supports additional federal formula grant funding to states for the following broad purposes:
- Improving the accuracy and security of election procedures and vote counts;
- Improving election technology, systems and ballot design;
- Facilitating states’ processes for voter registration, verification and maintenance of voter rolls;
- Educating citizens on representative democracy and election processes and systems;
- Providing greater access to states’ voter registration programs 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. NCSL supports the structure and purpose of the EAC.
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. Periodically, Congress introduces legislation that proposes a national uniform special elections process containing federal mandates for the timing of such elections without taking into account state laws and procedures for conducting special elections. Special elections have traditionally been a state responsibility that does not warrant federal intervention and all states have a special elections process in place that is procedurally best for that state. Therefore, NCSL supports federal legislation that allows for state flexibility with respect to the timing of and other rules governing special elections and opposes federal legislation that would preempt state laws governing special elections outright.
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 pre-emptive law diminishes other expressions of self-government; therefore, state legislators believe that state laws should never be pre-empted without substantial justification, compelling need, and broad consensus. Our federalism anticipates diversity; our unity does not anticipate uniformity. While proponents of pre-emption may claim expected benefits, these must be balanced against the potential loss of accountability, innovation and responsiveness.
Pre-emption may be warranted in specific instances when it is clearly based upon provisions of the U.S. Constitution authorizing such pre-emption 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 pre-emption of state laws is the only reasonable means of correcting the problem.
The authority of Congress under the Supremacy Clause to pre-empt 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 pre-empt 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 pre-empt 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 pre-empted by federal legislation before they vote on the pre-emptive 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 unelected federal agency officials to exercise legislative authority in the guise of regulation and to pre-empt the decisions of the elected legislatures of the sovereign states. Any agency intending to pre-empt state laws and rules must have the express authority or clear evidence from Congress of the intent to pre-empt. 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.
Homeland Security and Emergency Management
The National Conference of State Legislatures maintains that response to natural disasters and terrorist attacks 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. NCSL 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;
- 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;
- Permit citizen rescue and aid efforts to assist in disaster recovery pursuant to state Good Samaritan laws without fear of federal penalties; and
- Where practicable, allow states to purchase surplus emergency management equipment from the federal government following response and recovery efforts.
Congress must also 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 must 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.
NCSL urges the Department of Homeland Security (DHS) and the Federal Emergency Management Agency (FEMA) to 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. NCSL insists that FEMA streamline grants administration processes at FEMA as well as work together with other federal agencies that oversee disaster assistance – such as the Department of Housing and Urban Development (HUD) and the Small Business Administration (SBA) – to streamline and improve the efficiency of disaster assistance administration as a whole. Where possible, grants should be administered at the state level.
NCSL supports the funding of the Emergency Management Planning Grants (EMPG) at a level that meets current needs, and supports funding for the Emergency Management Assistance Compact (EMAC).
The Department of Homeland Security (DHS) 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 and 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.
Emergency Management and Presidential Disaster Declarations
NCSL believes effective emergency management involves both preparing for and responding to disasters. According to a 2018 National Institute of Building Sciences (NIBS) study, every $1 invested in disaster mitigation by the federal government saves communities $6. Recognition that states need to allocate state funding and receive federal funding before a disaster strikes is a necessity in order to sufficiently prepare for disasters and ultimately save communities money. NCSL urges FEMA and Congress to make federal disaster assistance available for a range of pre-disaster mitigation activities – from flooding to wildfires and beyond - that will promote advance planning for disasters and save both states and the federal government money in the long run. Specifically, NCSL urges:
- Congress to pass legislation that will increase assistance for wildfire mitigation, given the significant and increasing threat wildfires pose to air quality, water quality, and the safety of residents in affected states.
- FEMA to co-locate federal with state emergency management staff to 1) better administer disaster preparedness training on the state and local level and 2) learn from state and local staff the disaster risk profile specific to the area rather than assuming a one-size-fits-all approach.
- The Federal government to provide state emergency management personnel proper access to federal lands for the purpose of mitigation activities, including but not limited to forest maintenance and fuel load reduction.
In considering procedures for when disasters do occur, FEMA should not make changes to existing systems in the absence of state consultation. Upon the issuance of a Presidential Disaster Declaration (PDD), 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. NCSL urges FEMA to exercise caution when determining whether to alter this existing formula. While NCSL appreciates FEMA’s goals of reducing disaster costs overall and incentivizing pre-disaster planning and mitigation, any changes in the current statutory scheme must be constitutional, and must not contain burdensome cost shifts to states, or unwarranted preemption of state law. NCSL urges FEMA to engage in extensive consultation with state legislators in order to alleviate any intergovernmental issues that could aggravate the federal-state-local relationship. NCSL would oppose changes to the existing disaster declaration framework that would slow down the distribution of federal funds that contribute to state recovery from natural disasters.
NCSL calls upon the Administration to:
- Consult with states and requests transparency in its review and reform standards, policies, and procedures.
- When determining aid per capita for states, recognize and respect individual designations of localities within states. Likewise, when FEMA considers whether to recommend a disaster declaration for any given state, NCSL urges consideration of inordinately extensive impact to localities.
- Avoid federal action, such as stringent licensing requirements, that would discourage Good Samaritan aid or inhibit liability protections for voluntary civilian aid at the state level.
- Exercise the greatest level of flexibility possible in granting FEMA public assistance disaster relief funds that respect the distinctiveness of different states.
The National Conference of State Legislatures (NCSL) condemns the trafficking of persons. Combating human trafficking requires a strong partnership between the federal government and the states. Regardless of the form trafficking takes, it is the exploitation of survivors, both domestic and foreign born, who require protection and separation from their traffickers.
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 survivors and perpetrators of human trafficking. The federal government must enforce laws that address foreign-born adults and minors brought into the United States via trafficking, smuggling or under false pretenses. This includes providing for effective prosecution and sentencing of traffickers as well as assistance to survivors of trafficking as outlined in the TVPA, who are in fact, victims of crime, including but not limited to survivors who require protection and separation from their traffickers, those who have had documents destroyed or withheld, and specialized assistance for the many survivors who are minors.
Services may also be necessary to help assist survivors with reintegration into society. Survivors of trafficking are often misidentified and treated as criminals rather than victims, especially commercially sexually exploited children, and do not receive adequate services. The federal government should provide resources and capacity to assist states in providing assistance to survivors of both sex and labor trafficking including access to assistance in post-conviction relief for crimes that were committed as a result of their trafficking.
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 survivors, including minors. Such consultation and coordination should be conducted with an eye toward establishing and strengthening state/federal partnerships and not preempting existing state laws and policies or creating 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.
The United States is seeing an increase in trafficked persons who are foreign born and smuggled or brought in under false pretenses. The federal government needs to assist survivors whose traffickers have destroyed or withheld their documents as a means of coercion. NCSL supports the use of T and U visas to reduce barriers in the prosecution of traffickers. State legislators commend the Office of Refugee Resettlement (ORR) at HHS for work with states to assist survivors, particularly minors. NCSL encourages ORR to provide additional technical assistance to the states and include state legislators in their outreach and consultation efforts. ORR should take the lead in sharing its expertise in assisting trafficking survivors with DOJ, HHS and the states.
NCSL supports bipartisan Congressional efforts to establish voluntary grant programs and demonstration projects to assist survivors of trafficking. NCSL urges Congress to fully fund the pilot projects authorized under HHS to provide safe and therapeutic shelters for minor survivors.
NCSL supports the enhancement of The National Criminal Information Center (NCIC) relative to children who are missing and exploited including children at high risk for sex trafficking. Federal funding will be necessary to ensure that states do not face an undue administrative burden. However, NCSL cannot support any federal legislation that would contain an unfunded federal mandate.
NCSL urges the Congressional Human Trafficking Caucus to discuss the intergovernmental issues surrounding human trafficking with state legislators. NCSL supports the creation of a multi-governmental Blue Ribbon Commission on combating human trafficking on U.S. soil.
The National Conference of State Legislatures (NCSL) recognizes the contributions immigrants and refugees make to our state economies, cultures and communities while also recognizing 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 is 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 bear the costs of immigration in many areas including education, health and law enforcement systems, with limited federal reimbursement.
State legislators call on Congress and the Administration to enact 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 and economic impact of immigration on the states.
Federal immigration reform legislation must also provide a path to citizenship for Deferred Action for Childhood Arrivals (DACA) immigrants and immigrants who were brought to the U.S. as children (DREAMers), have lived most of their lives in the U.S., and Identify as American. These immigrants have contributed to our economy through work and have paid taxes and have been productive members of society.
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 systems and processes where they are most needed and necessary to create a plan for the effective use of new technologies and infrastructure at the borders.
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 be discretionary with each state.
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). NCSL also opposes any effort to coerce state participation in enforcement of federal immigration law by withholding SCAAP program funds.
EMPLOYMENT RELATED MIGRATION
Workforce Visa Reforms
NCSL supports workforce immigration reforms that improve the current worker visa programs, increase the number of H-1B visa admissions based on need, streamline the employer sponsorship process, and guide the nation towards economic recovery. Many states rely on migrant labor for key industries such as agriculture and farm work. The federal government should implement immigration reforms that provide temporary or permanent legal status to these workers in order to stabilize the workforce in these affected industries.
NCSL believes that while worksite employment verification is a critical component of overall immigration enforcement, it is an area that requires reform and improvements in order maximize effectiveness and efficient use of resources. NCSL opposes federal efforts to treat state governments differently from the private sector in meeting federal
requirements designed to identify workers who are not authorized to work, as well as employers who knowingly hire unauthorized workers.
NCSL believes that federal enforcement activities – at the worksite or in communities - must 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 and law enforcement agencies to end the policy of family separation, take swift action to locate and reunite families, including families that may have been separated by deportation and
guarantee that children are not endangered.
ELIMINATING COST-SHIFTS TO THE STATES
State Impact Assistance
NCSL supports the provision of flexible federal financial resources to states in order to implement and execute immigration reform efforts. While states have been able to serve immigrant populations with COVID-19 stimulus resources for health care, cash assistance, and food assistance, these funds are temporary. State impact grants continue to be an important component of the state-federal partnership in immigration reform as these represent a reliable, guaranteed funding stream for the provision of public health services, education, and English language acquisition to immigrant populations. State impact grants require state legislative appropriation, while providing needed flexibility and accountability.
PERMANENT, TEMPORARY IMMIGRANTS AND REFUGEES
Temporary Worker Program
NCSL supports comprehensive immigration reform that includes a temporary worker program and the creation of an earned legalization program for immigrants currently in the country without authorization. Such reform would increase productivity and wages for our entire economy, stimulating job growth and increasing tax revenue NCSL opposes outright amnesty as well as federal efforts to deny benefits to legal immigrants and to citizens who are foreign born.
NCSL supports federal efforts to assist individuals and families forced to flee their native land in fear for their personal safety. The United States has a long history of welcoming refugees and is one of the largest refugee resettlement countries in the world.
Federal support to states is critical for the provision of income and medical assistance, social services, education, employment and training and other services as needed. NCSL believes that funding should be more flexible to allow states to respond to changing needs.
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.
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 supports refugee placement policies that promote successful integration of refugees in the placement community. Placement should be tailored to give refugees economic, affordable housing, educational, language access, and community engagement opportunities in their new area. 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 such as providing instruction for continued medical care to refugees in the home and increasing outreach to bridge 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 as 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 for victims of trafficking, victims of domestic violence, and unaccompanied minors. NCSL supports continuing trafficking and domestic violence victim assistance programs through VOCA and other federal grants.
CITIZENSHIP AND INTEGRATION
Naturalization and Integration
NCSL supports the promotion of citizenship and reducing institutional barriers to citizenship as national priorities. Delays in citizenship applications are unjustified and costly to applicants. The federal government should allocate sufficient resources 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.
Timely Disaster Aid to States and Territories (Resolution)
WHEREAS, Hurricanes Harvey, Irma, and Maria, along with devastating Western wildfires and other natural catastrophes, totaling over $300 billion in damage made 2017 the costliest year on record for disasters in the United States, according to the National Oceanic and Atmospheric Administration; and
WHEREAS, Hurricane Michael on the east coast, the Camp Fire in California, and other major disasters made 2018 a deadly and expensive year from coast to coast; and
WHEREAS, Congress in 2019 took over six months to appropriate long overdue disaster aid. The delay featured a government shutdown, focus on tangential policy priorities, and a general absence of productive compromise; and
WHEREAS, even when Congress appropriates needed assistance in a relatively timely manner, the funds are further delayed due to inefficient disbursement to states and territories. In 2019, the Department of Housing and Urban Development took more than a year to provide guidance to disaster-stricken states and territories like Texas, Florida, California, and Puerto Rico which delayed the grant application process. Negotiations on aid for the next disaster season began and concluded before these funds were disbursed; and
WHEREAS, Disasters affect states and territories in every corner of the nation, from wildfires in California, Montana, Utah, and others to hurricanes in Florida, Texas, the Midwest and more; and
WHEREAS, Disasters affect every corner of affected communities – from homes, schools, roads, farms, prisons, electrical grids and hospitals suffering structural damage, to the affected populations displaced across the country and the states that receive them, and more; and
NOW, THEREFORE, BE IT RESOLVED, that the National Conference of State Legislatures (NCSL) implores Congress to remain united in prioritizing the efficient appropriation of needed aid to disaster-stricken states and territories; and
BE IT FURTHER RESOLVED, that NCSL urges the administration to make every effort to streamline their procedures to deliver appropriated funds to governments and individuals struggling to recover from devastating disasters.
Expires August 2022