Vol. 28 No. 5 – The Enforcement of Federal Laws by Local Law Enforcement


The question currently under discussion in many jurisdictions, throughout the country, focuses on whether states and local governments can be compelled to enforce federal laws? The answer would generally appear to be “no,” but the more appropriate answer might be, “it depends.”

The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights and was ratified on December 15, 1791, states that 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.”

The Tenth Amendment embodies the general principles of “federalism” in a republican form of government. The Tenth Amendment reserves to the states all powers that are not granted to the federal government by the Constitution, except for those powers that states are constitutionally forbidden from exercising.

For example, no state may enter into a treaty with a foreign government because such agreements are prohibited by the plain language of Article I to the Constitution. At the same time, nowhere in the federal Constitution is Congress given authority to regulate local matters concerning the health, safety, and morality of state residents. Those powers are known as local “police powers” and such authority is reserved to the states under the Tenth Amendment.

Federalism is defined as a principle of government that establishes the relationship between the central government at the national level and its constituent units at the regional, state, or local levels. Under this principle of government, power and authority is allocated between the national and local governmental units, such that each unit is delegated a sphere of power and authority only it can exercise, while other powers must be shared.

As the U.S. Supreme Court stated, in the case of South Carolina v. Baker, 485 U.S. 505 (1988), the Tenth Amendment has been interpreted “to encompass any implied constitutional limitation on Congress’ authority to regulate state activities, whether grounded in the Tenth Amendment itself or in principles of federalism derived generally from the Constitution.” Therefore, the issue which is frequently the subject of debate is whether a particular power was constitutionally granted to the federal government or retained by the states?

Power to the Feds

The U.S. Supreme Court’s expansive interpretation of congressional lawmaking power, exercised pursuant to the Commerce Clause, which gives Congress authority to regulate matters affecting interstate commerce, seemed to expand the interpretation of what powers were held by the federal government. In Gibbons v. Ogden, 22 U.S. 1 (1824), the Supreme Court ruled that the Commerce Clause power of Congress was “supreme (and) unlimited” and subject to “no limitations, other than those prescribed in the Constitution.”

More than a hundred years later Congress applied this power to regulate a farmer’s personal consumption of his own privately grown wheat, because Congress had found that the effects of such use, if done by all farmers, would have a substantial effect on prices in the national wheat market. The Supreme Court ruled that Congress had not exceeded the bounds of its authority under the Commerce Clause. Wickard v. Filburn, 317 U.S. 111 (1942).

In the case of Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court referenced theWickard decision and followed a similar theory regarding personal use and the Commerce Clause. “The parallel concern making it appropriate to include marijuana grown for home consumption . . . is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”

Following the September 11, 2001 terrorist attacks in New York City and Washington, D.C., the pendulum of federalism appeared to swing in the direction of allowing the federal government to more adequately address concerns over homeland security. An example of that would be issues surrounding immigration.

In 2012, in the case of Arizona v. United States, 132 S. Ct. 2492,the U.S. Supreme Court held that “the Federal Government’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to “establish an uniform Rule of Naturalization,” Art. I, § 8, and on its inherent sovereign power to control and conduct foreign relations. . . .”

As such, there is much discussion over whether or not the federal government can requirethe states to assist it in the enforcement of immigration laws. (See Client Alert Memo, February 19, 2013, Vol. 28, No. 3, “Secure Communities Program: Mandatory or Optional?”)

Once ICE determines a subject has previous serious criminal convictions, or is currently charged with a serious criminal offense considered to be a Level 1 offense, and is removable, ICE will lodge an Immigration Detainer (Form I-247) with the law enforcement agency (LEA).

The form contains several parts which inform the LEA what action has been taken by DHS regarding the inmate being held.  It is then “requested” that the LEA “accept this notice as a detainer” and to notify ICE “at least 30 days prior to release or as far in advance as possible.”

There are other “requests,” as well, but there is one paragraph which is informational, not a request. It states: “[F]ederal regulations (8 CFR 287.7)require that you detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays) to provide adequate time for DHS to assume custody of the alien.” (Emphasis added.)

In a letter, dated August 5, 2011, the ICE Director stated that participation in the program is not optional. “Once a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part.”

Therein lies the quandary – can the federal government require states to assist them in areas which were clearly delegated to the United States?

Power to the States

For a long period of time, the Supreme Court had not granted to the federal government power in decisions involving race relations.

In Dred Scott v. Sandford, 60 U.S. 393 (1856), the Court invalidated the Missouri Compromise, which was a federal law that outlawed slavery in the northern Louisiana Territory. The Court held that, under the Constitution, Congress was intended “to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from [it].”

Similarly, the Supreme Court deferred to the states in Plessy v. Ferguson, 163 U.S. 537 (1896), which upheld the constitutionality of Jim Crow laws that had created racial segregation in the South.

More recently, several key decisions were issued in the 1990’s which reinforced the finding that the federal government was limited in imposing laws on the states in other matters, as well.

In New York v. United States, 505 U.S. 144 (1992), the state of New York brought a suit challenging parts of the Low-Level Radioactive Waste Policy Amendments Act. The Supreme Court held that the act’s provision which required states to either regulate low-level radioactive waste according to congressional regulations or to take ownership of the waste, was unconstitutional.

The Court reasoned that the “take title” provision was outside the authority delegated to Congress under the Constitution and that the regulation was an attempt to “compel the States to enact or administer a federal regulatory program” Such attempts to compel state behavior, the Court said, violated the federal structure of the government as embodied in the Tenth Amendment.

In 1995, the Supreme Court, in United States v. Lopez, 514 U.S. 549 (1995), invalidated the Gun-Free School Zones Act which had made it a federal offense for any individual to knowingly possess a firearm in a place that the individual knew, or had reasonable cause to believe, was a school zone.

The Court ruled that Congress exceeded its authority under the Commerce Clause, since possession of a gun in a local school zone was not economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.Furthermore, the statute contained no jurisdictional element to ensure, through a case-by-case inquiry, that possession of firearm had any concrete tie to interstate commerce.

In still another gun case, Printz v. United States, 521 U.S. 898 (1997), a sheriff sought to enjoin provisions of the Brady Handgun Violence Prevention Act. The act had established a system of national instant background checks and local authorities were required to participate in the system by performing background checks on behalf of the federal government.  The Supreme Court ruled that Congress had no authority under the Commerce Clause to enlist local authorities to enforce the provisions of a federal law.


There appears to be significant concern among law enforcement officials as to whether or not the federal government could compel them to enforce federal gun laws, assuming they were adopted by Congress? From the research gathered regarding this issue, it would appear that such enforcement could not be imposed on local governments.

As noted above, the 10th Amendment to the Constitution reserves to the states those powers not constitutionally granted to the federal government, nor prohibited to the states. There does not appear to be any case law which held that powers regarding gun laws were constitutionally granted to the federal government and, therefore, it does not appear that enforcement of such federal laws could be imposed on the states.

Two key examples of that limitation would be the cases, set forth above, of United States v. Lopez, involving the Gun-Free School Zones Act, and Printz v. United States, dealing with provisions of the Brady Handgun Violence Prevention Act.

However, the cases also seem to hold that states may enforce such laws, if they so choose.

As always, it is imperative that you confer with your agency’s legal counsel for advice and guidance in areas of the law, especially in complex areas such as this. If you wish to discuss this in greater detail, please feel free to contact me at (714) 446 – 1400 or via email atmjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney – client relationship.