Legal Sidebari
Congress and Law Enforcement Reform:
Constitutional Authority
June 4, 2020
Nationwide protests in response to the publication of video footage of a Minneapolis police officer
pressing his knee into the neck of George Floyd leading to his death have generated renewed interest in
the issue of reforming the policing practices of state and local officials. As discussed in more detail in this
companion sidebar, several existing federal laws seek to prevent and redress constitutional violations by
state and local law enforcement officials. However, because the Constitution general y grants states the
authority to regulate issues of local concern—which includes policing and criminal law—Congress is
limited in its ability to legislate on matters related to state and local law enforcement—limits that may
inform any new laws Congress seeks to enact on this evolving issue. This Sidebar begins with an
overview of Congress’s authority to enact legislation and the limits on those powers. It then discusses in
more detail two of the enumerated powers—congressional powers that are found within the
Constitution—that may be most relevant when Congress legislates on matters relating to state and local
law enforcement.
Limits to Congressional Authority
The Constitution establishes a “system of dual sovereignty between the States and the Federal
Government.” Under the Tenth Amendment, “[t]he powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ”
Thus, states general y have broad authority to enact legislation, including to regulate the states and its
localities’ law enforcement approaches. In contrast, Congress may only enact legislation under a specific
power that is enumerated in the Constitution and cannot use its power to intrude impermissibly on the
sovereign powers of the states. In this vein, the Supreme Court has recognized that there are certain
subjects that are largely of a local concern where states “historical y have been sovereign,” such as issues
related to the family, crime, and education.
Because of these principles, the Supreme Court has recognized various limitations on Congress’s power
to legislate in areas that fal within a state’s purview, observing that congressional power is “subject to
outer limits,” and that Congress must take care not to “effectual y obliterate the distinction between what
is national and what is local.” In addition, under the anti-commandeering doctrine, Congress is prohibited
from passing laws requiring states or localities to adopt or enforce federal policies. Although these
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principles constrain Congress’s power, Congress can rely on its enumerated powers to regulate in areas it
could not otherwise reach. The spending power and section 5 of the Fourteenth Amendment are two of the
most relevant authorities that Congress has used in the past to address local law enforcement issues.
Spending Power and Regulating Law Enforcement Activities
The Spending Clause empowers Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay
the Debts and provide for the common Defence and general Welfare of the United States.” The Supreme
Court has held that incident to the spending power, Congress may further its policy objectives by
attaching conditions on the receipt of federal funds. These conditions often involve compliance with
statutory or administrative directives and can apply to any entity receiving federal funds, including states
and localities. In South Dakota v. Dole, for example, the Supreme Court upheld as a valid exercise of
Congress’s spending power a statute that conditioned the grant of federal highway funds to any state upon
that state prohibiting the legal purchase or possession of alcohol by individuals less than 21 years old.
There are, however, four limitations on Congress’s authority to attach conditions to federal funds. First, a
funding condition must be “in pursuit of the general welfare.” However, courts general y afford Congress
substantial deference in determining what expenditures are “intended to serve general public purposes.”
Second, if Congress intends to place conditions on federal funds, it must do so “unambiguously” so that
states can knowingly choose whether or not to accept the funds. Third, conditions on federal funding must
be related or “germane” to “the federal interest in particular national projects or programs.” Fourth, other
constitutional provisions may bar the conditions placed on the grant of federal funds. For instance,
Congress may not condition a monetary grant on “discriminatory state action or the infliction of cruel and
unusual punishment.” Relatedly, conditions on federal funding are unconstitutional when they become
coercive to the point that “pressure turns into compulsion” or commandeering. For example, in National
Federation of Independent Business (NFIB) v. Sebelius, the Supreme Court held that a provision in the
Affordable Care Act that withheld al Medicaid grants from any state that refused to accept expanded
Medicaid funding was unconstitutional y coercive because it threatened to terminate “significant
independent grants” that were already provided to the states.
Courts have rarely used these spending power limitations to invalidate conditions placed on the receipt of
federal funds. NFIB remains the only instance in the modern era of the Supreme Court invalidating an
exercise of the congressional spending power. Post-NFIB Spending Clause chal enges have largely been
unsuccessful in the lower courts.
Using its spending power, Congress has enacted legislation to influence the activities of state and local
law enforcement. Federal regulation of state and local law enforcement primarily comes in the form of
grant programs that provide money to local governments and police forces. For example, the Community
Oriented Policing Services (COPS) program authorizes the Department of Justice to distribute grants to
support community policing. Recipients can use these grants for hiring officers, procuring equipment, or
establishing partnerships between local law enforcement agencies and local school districts. And the
Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program provides federal financial
support for state and local criminal justice programs. Funding for these grant programs are subject to
various conditions that may further federal interests in regulating law enforcement activities. For instance,
grants under the COPS program prohibit the grantee from subjecting any person to discrimination on the
basis of race, color, or national origin (among other protected classes) in connection with any programs or
activities funded in whole or in part with federal funds. Funds under the JAG program are conditioned on,
among other things, compliance with the Death in Custody Reporting Act (DCRA), which requires states
to report information regarding the deaths of individuals in law enforcement custody.

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Section 5 of the Fourteenth Amendment and Regulating Law
Enforcement Activities
The Fourteenth Amendment, in relevant part, provides that no state shal “deprive any person of life,
liberty, or property, without due process of law” or “deny to any person within its jurisdiction the equal
protection of the laws.” And the Supreme Court has interpreted the substantive component of the Due
Process Clause as incorporating against state actors nearly al the rights found in the Bil of Rights,
including those that pertain to criminal procedure and regulate the conduct of the police. In turn, Section 5
of the Fourteenth Amendment grants Congress the power to enforce the Amendment through “appropriate
legislation.” Section 5’s “positive grant of legislative power” authorizes Congress to both deter and
remedy constitutional violations; and in doing so, Congress may prohibit otherwise constitutional conduct
that intrudes into “legislative spheres of autonomy previously reserved to the States.” The section 5
enforcement power (and the paral el enforcement powers found in the Thirteenth and Fifteenth
Amendments) has been used to, for example, ban the use of literacy tests in state and national elections
and abolish “al badges and incidents of slavery” by banning racial discrimination in the acquisition of
real and personal property. Congress has also used its section 5 power to provide remedies for the
deprivation of constitutional rights. For example, 42 U.S.C. § 1983 (Section 1983) provides a private
cause of action for individuals claiming that their constitutional rights were violated by state actors acting
pursuant to state law. And 18 U.S.C. § 242 (Section 242)—also passed using the section 5 power—
imposes criminal liability on state actors who deprive individuals of their constitutional rights.
While Congress’s section 5 enforcement power is broad, it is not unlimited. Section 5 al ows Congress to
directly enforce constitutional rights through laws like Section 1983 and Section 242, however, the power
does not al ow Congress to supplement those rights through prophylactic legislation that regulates state
and local matters without evidence of a history and pattern of past constitutional violations by the state.
And, according to the Supreme Court, when Congress exercises its section 5 authority, its response must
be congruent and proportional to a demonstrated harm. Congress may justify the need for section 5
legislation by establishing a legislative record that shows “evidence . . . of a constitutional wrong.” For
example, in holding that Congress exceeded its section 5 authority in enacting the Religious Freedom
Restoration Act (RFRA)—which, in relevant part, supplanted normal First Amendment standards to
impose a heightened standard of review for state government actions that substantial y burdened a
person’s religious exercise—the Supreme Court determined that Congress had failed to establish a
widespread pattern of religious discrimination by the states. As a result, RFRA could not be justified as a
remedial measure designed to prevent unconstitutional conduct and was outside of Congress’s power over
the states. As a result, the Court struck down the law in so far as it applied to the states.
As a consequence of this case law, the scope of Congress’s section 5 power hinges in part on the scope of
the constitutional right that a given law aims to protect. With respect to regulating state and local police
forces, one constitutional right that may be particularly relevant to Congress’s use of its section 5 power is
the Fourth Amendment, which prohibits unreasonable searches and seizures by the government. The
Fourth Amendment applies to many situations involving law enforcement including when police stop an
individual on the street for questioning, when police conduct traffic stops, or when police make an arrest.
Police violate the Fourth Amendment, for example, if they use excessive force during an investigatory
stop or arrest. According to the Supreme Court, the force used by law enforcement during an investigatory
stop or arrest violates the constitution when it is unreasonable considering the facts and circumstances of
the case. This analysis requires a careful balancing of “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the importance of the governmental interests al eged to
justify the intrusion.” For example, the Supreme Court has held that police use of deadly force against a
fleeing suspect who poses no immediate safety threat is unreasonable in violation of the Fourth
Amendment. Determining whether an act of force is excessive in violation of the constitution, however,
requires a fact specific analysis—a certain act may be reasonable under some facts while in a different

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case, the same act may amount to excessive force. For example, some courts have ruled that police use of
a chokehold is objectively unreasonable when used against individuals who are already under restraint
and not a danger to others. In other circumstances, courts have upheld police use of a chokehold as
reasonable in instances where an individual was unrestrained and continued to pose a threat of serious
harm.
Considerations for Congress
Although Congress is limited in its ability to regulate local policing, the constitution does provide
authority for some congressional reform and oversight into matters of state and local law enforcement.
Some Members of Congress has expressed interest in proposing legislation to address police reforms in
the wake of the response to George Floyd’s death. Several bil s on the issue have already been introduced
in the 116th Congress. These include those that utilize Congress’s Spending Clause authority to impose
new conditions on existing grant programs to states and localities, such as H.R. 120, the Police
CAMERA Act of 2019; H.R. 5777, the Police Accountability Act of 2020; H.R. 4359, the Police
Exercising Absolute Care With Everyone Act of 2019, H.R. 2927; the Preventing Tragedies Between
Police Communities Act of 2019; and H.R. 125, the Police Training and Independent Review Act of 2019.
Other proposals, such as H.R. 4408—the Eric Garner Excessive Use of Force Prevention Act of 2019—
would utilize Congress’s section 5 authority to amend 18 U.S.C. § 242 to criminalize the use of
chokeholds. While a companion to this Sidebar provides a look at some of these proposals, the limitations
to Congress’s constitutional authority to regulate state and local police forces may be a consideration
when evaluating these and other reforms.


Author Information

Whitney K. Novak

Legislative Attorney




Disclaimer
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