Federalism and the Federal Prosecution of State and Local Corruption

72 Pages Posted: 7 Dec 2003

See all articles by Peter J. Henning

Peter J. Henning

Wayne State University Law School


The Article considers the application of federalism to determine the constitutionality of federal statutes used to prosecute corruption of state and local officials. The question of the federal government's role in enforcing criminal laws against state and local officials has become especially relevant since the Supreme Court's decisions in United States v. Lopez and United States v. Morrison, which invalidated federal statutes because they exceeded congressional authority to regulate in areas already subject to the police power of the states. The Court relied in part on the principle of federalism embedded in the constitutional structure to limit Congress' power to regulate certain types of conduct, specifically crimes of violence.

Federal prosecution of state or local officials for crimes such as bribery raises questions about the propriety of one sovereign's seeking a criminal conviction of a person acting under the auspices of a different sovereign. Do prosecutors representing the federal government invade the province of the states, not only by prosecuting a crime already subject to prosecution by local authorities, but perhaps more importantly, by policing another government's representatives and employees? Invoking federalism as an independent principle to limit the federal government's authority to prosecute public corruption at the state and local level has a superficial appeal. Lopez and Morrison refer to a seemingly inviolable realm of state authority that appears to include control - perhaps to the exclusion of the federal government - over the prosecution of local crimes. The Court's federalism analysis gives the impression of separate spheres of control over criminal law, a scheme that relegates Congress to legislating only in those areas that are obviously national in scope.

The notion of mutually exclusive spheres advanced in Lopez and Morrison - at least with respect to criminal statutes - overstates the role of federalism in demarcating the authority of the national and state governments. At least with regard to prosecutions involving corrupt officials, the authority of the federal government to prosecute such crimes advances rather than undermines the principle of federalism. The Constitution reflects the deep concern of the Founders with preventing corruption - what I term the Constitution's Anti-Corruption Legacy - a concern that supports congressional power to reach misconduct by officials at all levels of government for the misuse of public authority. My thesis is that the Anti-Corruption Legacy of the Constitution supports a broad view of the federal government's power to prosecute public corruption at all levels of government. Federal prosecution of corruption does not invade the sovereignty of the states because corruption undermines the balance established by federalism, and the national government must protect the integrity of both sides of the federalism equation. The constitutional design to eliminate corruption demonstrates the Framers' intent to guard against the threat to liberty from the misuse of public authority. My analysis rejects the position taken by some lower federal courts that federalism limits the authority of Congress or federal prosecutors to target corruption involving state and local officials. This issue will be argued before the Supreme Court this term in Sabri v. United States. The use of federalism to curtail corruption prosecutions is misguided because the individual liberty afforded by federalism is enhanced when the integrity of government is protected through federal prosecution. If the Constitution grants Congress the authority to adopt a statute that can be used to prosecute corruption, then state and local officials charged with corruption should not be empowered to argue that their conduct somehow falls outside the federal government's power because of some form of "as-applied" federalism.

Keywords: federalism, criminal law, corruption

JEL Classification: H70, K14, K42

Suggested Citation

Henning, Peter J., Federalism and the Federal Prosecution of State and Local Corruption. Available at SSRN: https://ssrn.com/abstract=476241 or http://dx.doi.org/10.2139/ssrn.476241

Peter J. Henning (Contact Author)

Wayne State University Law School ( email )

471 West Palmer Ave.
Detroit, MI 48202
United States

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