Federalism is defined as "the distribution of power in an organization (as a government) between a central authority and the constituent units."¹ As James Madison indicated, each level of government has a certain domain within which it reigns supreme:

Unfortunately, however, when it comes to defining the powers of the federal and state governments, the language of the Constitution is extremely elastic and vague. On the one hand, the Necessary and Proper Clause gives Congress the "Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."³; On the other hand, "the 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."⁴ Such obscure language has rendered problematic the task of defining the two sovereign domains.

Historically, both the federal and state governments have legislated criminal codes, but the public's recently heightened awareness and anxiety over crime has shifted the balance of power towards the federal end by spurring a new wave of federal crime law concerning conduct traditionally left to the states to control.⁵ However, the case law from recent Supreme Court decisions such as United States v. Lopez and Printz v. United States shows a movement on the part of the Justices to check this new trend of "federalizing" crime.

The Gun-Free School Zones Act of 1990, challenged in the Lopez case, made it a federal crime for "any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone."⁶

The respondent challenged the constitutionality of the Act, claiming that it exceeded Congress' power under the Commerce Clause. The government based its defense of the law on the precedent set by Perez v. United States, which allows federal regulation of those intrastate activities which are found, in the aggregate, to affect interstate commerce.

However, the Court invalidated the law on the grounds that not only was gun possession not an activity which substantially affected interstate commerce, but it, in fact, was not a commercial activity at all:

The Court's second objection to the Act concerned its lack of any jurisdictional element "which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce."⁸

In other words, the Act allowed federal prosecution of cases even where that particular firearm possession had no impact whatsoever upon interstate commerce.

The Lopez decision opened the door for challenges to other previously settled laws.⁹ For example, by establishing family law as "a paradigmatic example of lawmaking power beyond the constitutional competence of the federal government,"¹⁰ it is hardly surprising that "in light of Lopez, a number of district courts have heard challenges" to such legislation as the Child Support Recovery Act of 1992.¹¹ However, it must be noted that for all its significance, Lopez is not at all a deviation from previous Commerce Clause jurisprudence: "[The] Court did not reject the 'substantial effects' test. Rather the Court supplemented the test with a requirement that the regulated activity have a commercial or economic nature."¹²

In fact, examining the reasons behind the Court's finding in Lopez suggests that, had Congress (1) included a jurisdictional element to limit the scope of the legislation to those cases of an interstate nature, or (2) formally shown an impact "upon interstate commerce of a gun in a school zone,"¹³ the legislation might have been upheld.

Printz v. United States concerned itself with the Brady Handgun Violence Prevention Act, which required the Attorney General to institute a national system of background checks for prospective handgun owners, and also compelled the "chief law enforcement officer" (CLEO) of each locality to conduct the check until the national system became operative. ¹⁴ CLEOs from Montana and Arizona challenged the law's constitutionality, objecting to "being pressed into federal service."¹⁵

The Court's decision considered history, the structure of the Constitution, and prior jurisprudence to decide on the law's constitutionality. Historically, while the federal government was permitted to compel "state judges to enforce federal prescriptions," there is no indication that the federal government was ever allowed to impress the state executives.¹⁶

Further, the Constitution "incontestib[ly] . . . established a system of 'dual sovereignty,'"¹⁷ under which "the local or municipal authorities form distinct and independent portions of the supremacy, no more subject . . . to the general authority than the general authority is subject to them."¹⁸ In such a system, "a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."¹⁹

This idea of "double security" would be undermined, said the Court, "if it [the federal government] were able to impress into its service -- and at no cost to itself --the police officers of fifty states."²⁰

Finally, previous case law shows an unwavering stance against the states being compelled to implement federal policy, as manifested in decisions such as EPA v. Brown (1977), FERC v. Mississippi (1982), and New York v. United States (1992). Thus, the provision of the Brady Act which compelled CLEOs to implement background checks was struck down as unconstitutional.

Yet at the same time, the Court declined to rule on the Brady Law as a whole, confining its findings to the particularly problematic provision of compelling CLEOs to administer federal statutes:

By leaving the question of the Brady Act's severability (and salvageability) open, the Court made clear that, far from ruling against federal crime law as a whole, this decision was made against one specific clause in one specific law. Thus, although the Printz decision reestablishes limits on what the federal government may do to enforce its criminal code, it does not rule that crime law is outside the federal domain.

But enacting legislation is only one way in which the federal government has sought to "federalize" crime. Another method is bringing federal charges upon criminals in addition to the standard state prosecution, as in the case of the four L.A.P.D. officers acquitted in the state Rodney King beating trial. After a state trial acquitted the officers, the United States Department of Justice decided to file a federal civil suit. The American Civil Liberties Union objected strongly, condemning the federal prosecution as "a violation of double jeopardy."²²

In United States v. Lanza, the Supreme Court ruled that the Double Jeopardy Clause -- "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"²³ -- does not preclude federal and state prosecution for the same offense because of the idea that dual sovereignties may have concurrent jurisdiction: "An act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each."²⁴ Subsequent cases involving dual sovereignty such as Herbert v. Louisiana, Abbate v. United States, Bartkus v. Illinois, United States v. Wheeler, and Heath v. Alabama, have all upheld the Lanza decision.

But a conflict between dual sovereignty and double jeopardy presupposes that the prosecutions deal with the same offense, pursuant to the Blockburger test which questions whether one crime "requires proof of a fact which the other does not."²⁵ Clearly, in the case of the L.A.P.D. officers, the charges were substantially different:

Thus, even discarding the dual sovereignty precedent, a retrial of the police was still "entirely proper under prevailing double jeopardy doctrine"²⁷ because federal charges differed from the state's under the Blockburger test.

In addition to the long-standing precedent on the matter, there is a strong public-policy-oriented reason for the dual sovereignty exception to double jeopardy: Double prosecutions have proven instrumental in securing governmental interests. In fact, there is a striking parallel between the King incident and the 1964 murder of Lt. Col. Lemuel Penn. Penn, a black man, was shot and killed by Georgia Ku Klux Klan members who, despite strong evidence to the contrary, were acquitted by the state. The Supreme Court's decision in United States v. Guest²⁸ allowed the federal government to reprosecute, and the murderers were subsequently convicted. In light of such cases, Heath v. Alabama²⁹ clearly allows governmental interests of justice to outweigh double jeopardy considerations:

Thus, because of jurisprudence regarding the dual sovereignty doctrine, because the charges against the officers were different under the Blockburger test, and because of the policy-related considerations, the retrial of the L.A.P.D. officers in the Rodney King trial was indeed in accordance with constitutional principles.

In conclusion, the recent movement to federalize crime has resulted in such legislation as the Gun-Free School Zones Act, which lacked provisions crucial to establishing constitutionality, and the Brady Handgun Violence Prevention Act, which compelled state officers to implement federal measures. Though the Court struck down both these laws, and while the decisions paved the way for critical inquiry into the constitutionality of other laws, the judicial precedent set is such that there is much room for federal crime legislation, so long as there is a clear link to constitutional principles such as the Commerce Clause and the Necessary and Proper Clause. With respect to double prosecutions, the Court has long supported the idea that as dual sovereigns with concurrent jursidiction, both the federal and state governments may prosecute criminals, even for the same offense.

Thus, while case law indicates hostility towards measures which attempt to consolidate federal power at the expense of states, the Court supports proceedings such as double prosecution, wherein federal and state sovereignties remain intact.