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February 20, 2022

"The Structure of Criminal Federalism"

The title of this post is the title of this notable new article authored by Erin Blondel now available via SSRN. Here is its abstract:

Deciding which crimes should “go federal” is a core problem in federal criminal law and policy. Repeated efforts have failed to distinguish “federal” and “local” crimes and crime problems, while federal criminal law’s scope only seems to grow. I argue that federalism explains why identifying federal crimes has proven so elusive.  Overlapping state and federal jurisdiction is not an accident or a federalism failure: it is how the federal criminal system was designed.

The states have the police power, which entrenches them on the front lines of criminal enforcement, broadly providing public safety and addressing most crime incidents. The feds don’t even try to compete; instead, they provide a second layer of enforcement, supplementing and correcting, but not supplanting, the states.  That cooperative, complementary relationship has shaped how both systems operate and strongly restrains the scope of federal criminal enforcement.

Reframed, criminal federalism is alive and well. The Court and scholars should stop trying to separate two systems that naturally work together and rely instead on the structural dynamics I describe to restrain, critique, or adjust how the federal system operates.  And Congress, courts, and executive officials should embrace the federal system’s supplemental nature to ensure it complements, but never supplants, the states.

February 20, 2022 at 04:07 PM | Permalink


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