Statutory Federalism and Criminal Law

72 Pages Posted: 10 Jul 2019 Last revised: 18 Mar 2020

Date Written: July 7, 2019


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 mediates the tension that would otherwise arise when regulations from different governments overlap.

This Article is the first to identify how rare meaningful use of dynamic incorporation is in criminal law and also how this scarcity affects 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 makes reforming criminal laws exceptionally difficult and the limited accountability officials face for their enforcement decisions.

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 ninety-three 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 congressional inertia in criminal law. What's 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 created a relationship that makes 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 can use this ability to, for example, worsen sentencing disparity. Dynamic incorporation rebalances power by giving state legislatures the opportunity to exercise greater oversight of enforcement discretion, enhancing enforcement accountability.

Federalism scholars have overlooked the most potent consequences of dynamic incorporation. Traditional federalism focused on identifying and defining the separate spheres of federal or state influence. And national federalism has focused on how states empower the federal government or shape policy by helping administer federal policies or programs. But this scholarship has missed the important consequences that occur when Congress enables states not only to administer federal programs or policies, but partly to define the existence and scope of those programs or policies—consequences that have particular potency in criminal law.

Keywords: federalism, national federalism, criminal law, sentencing, marijuana law

Suggested Citation

Divine, Joshua, Statutory Federalism and Criminal Law (July 7, 2019). 106 Va. L. Rev. 127 (2020). Available at SSRN:

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