Congress and Law Enforcement Reform: Constitutional Authority

Congress and Law Enforcement Reform: Constitutional Authority

Legal Sidebari

Congress and Law Enforcement Reform:
Constitutional Authority
Updated February 15, 2023
Incidents involving the use of force by law enforcement, such as the 2020 death of George Floyd and the
2023 death of Tyre Nichols, have generated heightened interest in the issue of reforming the policing
practices of state and local law enforcement. As discussed in another Legal Sidebar, several existing
federal laws seek to prevent and redress constitutional violations by state and local authorities. Congress
is constitutionally 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 Legal 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 Congress’s enumerated constitutional powers that may be most
relevant to federal legislation 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.”
The Supreme Court has recognized that there are certain subjects that are largely of local concern where
states “historically have been sovereign,” such as issues related to the family, crime, and education. In
contrast, Congress may only enact legislation under a specific power enumerated in the Constitution, and
it cannot use its power to intrude impermissibly on the sovereign powers of the states.
Because of these principles, the Supreme Court has recognized various limitations on Congress’s power
to legislate in areas that fall within a state’s purview, observing that congressional power is “subject to
outer limits,” and that Congress must take care not to “effectually obliterate the distinction between what
is national and what is local.” For example, although Congress has invoked its power to regulate interstate
and foreign commerce to legislate on a wide range of economic and social activities, the Court has limited
its reach when the legislation seeks to regulate purely local, non-economic activities. Additionally, under
the anti-commandeering doctrine, Congress is prohibited from directing states or localities to regulate the
activities of private parties on behalf of the federal government.
Although these principles constrain Congress’s power, Congress can sometimes rely on its enumerated
powers to regulate in areas of state and local concern. The spending power and Section 5 of the
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Fourteenth Amendment are two of the most relevant authorities used by Congress to address state and
local law enforcement issues.
Spending Power
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, several 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 generally 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 all Medicaid grants from
any state that refused to accept expanded Medicaid funding was unconstitutionally 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 challenges have largely been
unsuccessful in the lower courts.
Congress has used its spending power to enact 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. Additionally,
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 is 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, 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
The Fourteenth Amendment, in relevant part, provides that no state shall “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.” The Supreme Court has interpreted the substantive component of the Due Process
Clause as incorporating against state actors nearly all the rights found in the Bill 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 parallel 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 “all 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 allows Congress to
enforce constitutional rights directly through laws like Section 1983 and Section 242, however, the power
does not allow 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.
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 substantially 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 alleged 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
case, it may amount to excessive force. For example, some courts have ruled that police use of a

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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
when 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 of state and local law enforcement. Legislators
proposed various avenues for reform and oversight of federal, state, and local law enforcement prior to
the high-profile events surrounding the death of George Floyd, and events since May 2020 have prompted
additional proposals to address police reforms. As discussed in another Legal Sidebar, several bills were
introduced on the issue in the 116th and 117th Congresses, including comprehensive police reform
proposals such as the George Floyd Justice in Policing Act and the JUSTICE Act. Multiple provisions of
these bills would have placed conditions on the receipt of federal funds pursuant to Congress’s spending
power or utilized Congress’s Section 5 authority to amend laws such as Section 242. The limitations on
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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