Creating a 'Hydra in Government': Federal Recourse to State Law in Crime Fighting
44 Pages Posted: 20 Sep 2005
Traditionally, U.S.-state criminal justice relations have been conceived in two-dimensional terms, with concern primarily dedicated to U.S. usurpations of state authority. As this Article makes clear, however, U.S.-state relations are in significant measure also multi-dimensional and synergistic: rather than being solely engaged in a zero-sum power competition with states, the U.S. in actuality often defers to state laws and outcomes, despite the highly variegated normative positions they embody. As a consequence of this deference, the U.S. at once increases the scope, content and effect of its own criminal justice enterprise, and elevates (not reduces) the sovereign authority of states. The Article examines this interaction and explores its many important ramifications. These include, inter alia, the creation of major variability and arbitrariness in the application of federal (national) law and the blurring of federal political accountability, transparency and democratic representativeness. The Article concludes with an overview of the implications of this alternate form of federalism for pending possible changes in the U.S. criminal justice system, prompted by the Supreme Court's recent landmark decisions in Booker and FanFan and congressional initiatives.
Suggested Citation: Suggested Citation