	Introduction

Several protests around the country regarding the actions of local law enforcement officers have sparked a discussion about local law enforcement and judicial practices. In response, several Members of Congress have formulated a number of proposals designed to promote accountability and deter discrimination by state and local law enforcement and judicial officers. However, because the "[s]tates possess primary authority for defining and enforcing criminal law," the imposition of federal restrictions on such entities raises important constitutional issues: namely, the extent to which the Constitution permits the federal government to regulate the actions of state and local law enforcement and judicial officers. Many proposals condition the receipt of federal funds by local law enforcement agencies on the adoption of certain policies, for example by
establishing a federal grant program providing funds for local law enforcement agencies to acquire body-worn cameras; promoting the use of special prosecutors in cases of police-related shootings or fatalities by requiring recipient of federal funds to establish procedures to appoint them; directing law enforcement agencies that receive federal funds to conduct racial bias training for employees; providing that law enforcement officers in agencies that receive federal funds who engage in conduct constituting a crime of violence be punished for the offense under federal law; conditioning the receipt of federal funds by local law enforcement agencies on the adoption of polices that prohibit racial profiling; ending the receipt by local law enforcement of military-type weapons and equipment; and authorizing the formation of task forces to deter discrimination in local law enforcement agencies. Constitutional Limits on Congress's Power

		Federalism and Enumerated Powers

The federal government possesses only limited powers. Pursuant to these foundational guidelines, current proposals to address local law enforcement issues at the federal level must be enacted consistent with a constitutionally enumerated power or powers supplemented by the Necessary and Proper Clause; otherwise such authority is reserved to the states. At least three constitutional provisions are likely to be relied upon for support by some of the current proposals, as they are often invoked to support similar provisions in current federal law. Pursuant to this authority, Congress may disperse funds to states contingent on compliance with specific conditions. These conditions can include the adoption of policies that Congress could not otherwise directly impose on states. Spending power legislation must be directed to the "general welfare," and conditions attached to the receipt of federal funds must be (1) "unambiguous[]" as to the "consequences of [a state's] participation," (2) related "to the federal interest in particular national projects or programs," and (3) not barred by a separate constitutional provision. Commerce Clause

While most proposals to regulate local law enforcement appear to do so under the Spending Clause or Congress's power to enforce the Fourteenth Amendment, legislation found to exceed Congress's authority in those areas might instead be supported by the Commerce Clause. The Constitution does, however, grant Congress the power to regulate foreign and interstate commerce. First, Congress may regulate the "channels" of interstate commerce. Third, Congress may regulate activities that have a "substantial relation to interstate commerce" and intrastate economic activity that substantially affects interstate commerce in the aggregate. Without a tether to federal funds, such legislation might be supported by Congress's power under Section 5 of the Fourteenth Amendment. First, Congress may regulate only state and local governments under this authority, not private persons. As mentioned above, however, Congress would need to show a history of constitutional violations in order to support prophylactic legislation in this area. Consequently, a narrow remedy is more likely to be considered proportional to the constitutional violation at issue.
Several protests around the country regarding police use of force and a perceived lack of accountability for law enforcement officers have sparked a discussion about local law enforcement and judicial practices. In response, several Members of Congress have formulated a number of proposals designed to promote accountability and deter discrimination at the state and local levels. However, because the enforcement of criminal law is primarily the responsibility of state and local governments, the imposition of federal restrictions on such entities raises important constitutional issues: namely, the extent to which the Constitution permits the federal government to regulate the actions of state and local officers. Proposals include imposing restrictions on the receipt of federal funds as well as banning certain practices independently of a tether to federal money.
The federal government possesses limited powers. Current proposals to address local law enforcement issues at the federal level must be enacted consistent with a constitutionally enumerated power or powers supplemented by the Necessary and Proper Clause; otherwise such authority is reserved to the states. At least three constitutional provisions are often invoked to regulate state and local government under current federal laws and are likely to be relied upon by some of the current proposals.
Legislation that ties conditions to the receipt of federal funds, such as H.R. 1680, H.R. 429, and S. 1056, would likely be supported by Congress's power under the Spending Clause to provide for the general welfare. Pursuant to this authority, Congress may disperse funds to states contingent on compliance with specific conditions. These can include the adoption of policies that Congress could not otherwise directly impose on states. Conditions attached to the receipt of federal funds that regulate state and local governments must be unambiguous; relate to the federal interest in particular programs; not be barred by another constitutional provision; and not be so coercive as to compel states into participation.
In contrast, federal proposals that impose restrictions on state and local governments without a connection to federal money, such as H.R. 1933 and H.R. 2052, might be supported pursuant to the Commerce Clause or under Section 5 of the Fourteenth Amendment. Congress possesses the power to regulate foreign and interstate commerce. This includes the regulation of the channels and instrumentalities of interstate commerce, as well as activities that have a substantial relation to interstate commerce. Congressional proposals to regulate local governments passed pursuant to this power must likely be directed at economic activity that has a substantial relation to interstate commerce or be limited in application to regulating the channels or instrumentalities of interstate commerce.
Congress also possesses power to enforce the provisions of the Fourteenth Amendment and may enact "prophylactic legislation" intended to deter violations by proscribing a broader scope of conduct than barred by the Constitution. However, such legislation must be congruent and proportional to the injury to be remedied. In order to support legislation imposing restrictions on local law enforcement under this authority, Congress must likely show a widespread history of violations of the constitutional right to be protected.