CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, July 18, 2019

Divine on Statutory Federalism

Joshua Divine has posted Statutory Federalism and Criminal Law (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:

Federal law regularly incorporates state law as its own. And it often does so dynamically so that future changes to state laws affect how federal law will apply. For example, federal law protects against deprivations of property, but states largely get to define what property is. So when a state changes its property law, it automatically influences the effect of federal law. This interdependence eases the tension that would otherwise arise when two different governments issue overlapping regulations.

This Article is the first to identify how rare meaningful use of dynamic incorporation is in criminal law and also how this scarcity impairs that law. With some notable exceptions, Congress ordinarily acts alone in criminal law. But using dynamic incorporation more often would redress two problems: the political inertia that leads to a one-way ratchet in criminal law and the limited accountability for enforcement discretion.

Marijuana laws provide a compelling example. Federal law flatly prohibits all marijuana use. But forty-six states now have laws that conflict with federal law, and 93 percent of Americans believe that medicinal marijuana should be lawful. The only legislation Congress has managed to pass in response to this conflict makes heavy use of dynamic incorporation. This example and others suggest that dynamic incorporation reduces the inertia that ordinarily makes it difficult for Congress to pass responsive legislation in criminal law. What is more, dynamic incorporation creates additional flexibility that prevents these kinds of conflicts from arising in the first place. 

Dynamic incorporation also furthers separation of powers values. Local and federal enforcement officials have crafted joint relationships that make local officials a critical part of federal enforcement. This relationship is efficient, but it also enables local officials to evade state law constraints. Local officials use this ability to exacerbate, among other things, sentencing disparity. Dynamic incorporation rebalances power by giving state legislatures the opportunity for greater oversight of enforcement discretion, enhancing enforcement accountability.

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