Posted By: Tyler Jorgensen, Jinwoo Kim, Colleen Kinney, Daniel Klingenberg, Daniel Kolomitz and Robyn Krawchuk
April 2nd, 2015
In the aftermath of the recent high profile shootings involving police officers and unarmed black men in the United States, there have been mass demonstrations around the nation in which citizens have protested against racially biased law enforcement, racial profiling, and the lack of access to justice for African Americans in impoverished communities. There are several measures that could potentially be adopted by the President or Congress that would attempt to resolve these issues. Such measures include: prohibiting racial profiling; mandating a goal of having police departments mirror the racial and demographic profiles of the communities they serve; mandating community-based policing techniques designed to place a stable group of police officers in local community activities in order to build trust between the police and minority communities; mandating the use of an independent counsel or a prosecutor from a different jurisdiction in any investigation involving the excessive use of force or a homicide by a law enforcement officer; and mandating the release of evidence presented to the grand jury in any investigation and prosecution involving homicide or the excessive use of force by a law enforcement officer. The question considered here is whether the President or Congress has constitutional power to adopt such measures. For purposes of discussion, let us assume that President Obama proposes and Congress considers wrapping these various measures into a hypothetical proposed Grand Jury Reform Act in response to recent mass demonstrations aimed at the racial fairness of the law enforcement process. An actual bill with the same name has been proposed by one member of Congress based on the spending power but the hypothetical proposed Grand Jury Reform Act discussed here should not be confused with that much narrower legislation.
Constitutional challenges arise under the Tenth Amendment whenever Congress or the President attempts to mandate something that is actually within the reserved power of the states to mandate, and therefore the measures of mandating a goal of having police departments mirror the communities they serve, mandating community-based policing techniques, and mandating the release of transcripts or videotapes presented to a grand jury in a case involving excessive police force or homicide by a law enforcement officer likely cannot be implemented. On the other hand, prohibiting racial profiling may be a necessary measure to ensure equality under the Fifth Amendment and the Fourteenth Amendment. Mandating the use of independent counsel or a prosecutor from a different jurisdiction in cases involving police homicide may be acceptable only if the newly proposed Grand Jury Reform Act is not an overbroad use of Congress’s spending power or if the federal courts find that Congress does have the power to enact such a bill under Section 5 of the Fourteenth Amendment. However, the Grand Jury Reform Act will likely be found constitutional since it was written for the purpose of preserving substantial portions of the Fourteenth Amendment. The following article will further analyze the constitutional ability of the President or Congress to implement each of these measures.
(1) PROHIBITING RACIAL PROFILING
Although the Civil Rights Act of 1964 was passed over fifty years ago, there is still much debate over whether racial profiling still exists within our communities. Namely, the events in Ohio, New York, and Missouri have brought the issue of racial profiling to the forefront of public consciousness once again. Many wonder what can be done at the federal level to try and stop the alleged racial profiling and if there is any constitutionally proper role for either Congress or the President to play to prohibiting racial profiling on a national level. Racial profiling claims mainly concern the Fourth Amendment, which deals with unreasonable searches and seizures, and the equal protection clause of the Fourteenth Amendment. In July of 2012, the Congressional Research Service reported concerning findings on racial profiling. The report defined racial profiling as “the practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior.” (CRS Report). It reviews the constitutionality of profiling in unreasonable search and seizures (Fourth Amendment), equal protection under racially motivated arrests/stops (Fourteenth Amendment), and the selective enforcement of laws according to race (Fourteenth Amendment). In addition, the Department of Justice (DOJ) recently released its own report on Ferguson, Missouri’s alleged racial profiling claims. The DOJ found a “pattern and practice of discrimination against African-Americans” and cited as evidence the excessive use of force, unlawful arrests, and blatantly racist e-mails circulating within city departments. (Ferguson Missouri DOJ Report). In sum, the DOJ’s report found constitutional violations as defined by the CRS.
Since it appears that the United States does indeed have a problem with racial profiling, the question becomes whether Congress may act to prohibit it. The answer is yes. Section 1 of the Fourteenth Amendment states that, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In Section 5 it states that, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The Constitution clearly supports Congress creating laws in order to enforce Section 1 of the Fourteenth Amendment, which is concerned with equal protection of the laws and due process. In an attempt to ensure minorities receive equal protection of the laws, the 113th Congress has proposed the End Racial Profiling Act of 2013 (S. 1038/H.R. 2581). The purpose of this Act is to primarily monitor and correct problems within law enforcement agencies in order to end racial profiling, but it has not yet been passed.
Does the President also have a constitutionally appropriate means to act on prohibiting racial profiling? Yes, and he has already began to do so. Article II, Section 1 of the Constitution states that, “Before he enter on the execution of his office, he shall take the following oath or affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Section 3 of Article II states that, “He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; . . . .” Thus, the Constitution gives the President the executive power to suggest Congress or other departments act when he deems necessary. By sending the Department of Justice to Ferguson, Missouri to investigate the incident involving Michael Brown, President Obama exercised this power that he possesses. Although charges were not filed against the police officer involved in the shooting of Michael Brown, a report was made concerning the racial profiling and discrimination of African-Americans in that particular community and some changes in leadership have slowly been made because of the report. (CNN Ferguson Story).
(2) POLICE DEPARTMENTS MIRRORING RACIAL AND DEMOGRAPHIC PROFILES OF COMMUNITIES THEY SERVE
The question now to be considered is whether Congress or the President, consistent with the Constitution, would be able to mandate a goal of having police departments attempt to mirror the racial and demographic profiles of the community they serve. In short, the federal government most likely cannot exercise any control over state law enforcement agencies because the United States Constitution leaves the states the power to police their own citizens.
Understanding why the federal government cannot control state law enforcement agencies requires a look into how the Constitution establishes our laws. Broken down into three major articles, the Constitution grants specific powers to each branch of the federal government. Each article establishes a single branch (executive, judicial, legislative), and then lists the specific powers granted to that branch. However, the Framers of the Constitution understood that they could not account for every single law that would need to be written. Thus, when the First Congress created the Bill of Rights, the Tenth Amendment was created to be a catchall for any laws that the Framers could have missed. This amendment states that all powers not specifically granted to the three branches are reserved for the states. The importance of the Tenth Amendment is relevant to this topic, because the Constitution does not specifically grant any of the three branches the power to police citizens. Also, the Supreme Court has held that this power is reserved for the states, thus affirming the intent behind the Tenth Amendment. (For more on Supreme Court rulings relating to the reserved police power, click here).
Returning back to the original question, many have wondered if there is a potential solution to the apparent racial issues that have arisen with law enforcement in America. While Congress is able to pass any law that it desires, these laws still have to fit within the legal scope of the Constitution. Laws passed by Congress that conflict with the Constitution are ruled unconstitutional by the judicial branch.. If Congress were to pass a law mandating local police departments to mirror the racial and demographic profiles of the communities they serve, it seems likely that a court would find that law to conflict with the Tenth Amendment, because the Tenth Amendment reserves the power to police citizens (i.e. to make laws to provide for their general health, welfare, and safety) to the states, and passing a law that interferes with the States’ rights would violate the Constitution. (For more information on the Tenth Amendment’s police power click here). A state legislature could pass legislation and potentially mandate this within its own borders, but that would depend on that individual state’s constitution and laws. Overall, however, it is unlikely that Congress would be able to mandate this on a national scale.
The purpose of the Tenth Amendment is to limit the powers of the federal government, while still creating an outlet for change. Any powers not directly delegated to the federal government in the Constitution belong to the states or to the people. Of course, dozens of cases exist where the Supreme Court decides how far certain delegated powers can reach. Also, there are cases that further elaborate what actually is delegated by the Constitution. (For more information on reserved powers, click here). Therefore, because certain powers are reserved to the states, Congress cannot pass laws that conflict with these powers.
The police power is reserved to the states, and a law mandating demographic mirroring of state police departments appears to conflict with this reserved right. Therefore, the Supreme Court would likely not uphold a law of this nature. States are given the power to police their own citizens, which means they also have control over the demographics of their police forces. State legislatures can potentially create laws regarding racial and demographic mirroring of their law enforcement agencies, but this also depends on the individual state’s constitution.
In conclusion, it appears that neither Congress nor the President has a constitutionally appropriate means of mandating a goal of having police departments attempt to mirror the racial and demographic profiles of the community they serve, because the Tenth Amendment reserves the power to police citizens to the States. Through the system of checks and balances, both a congressional legislative act and an executive order would likely be struck down by the Supreme Court for being in violation of the Tenth Amendment of the Constitution.
(3) MANDATING COMMUNITY-BASED POLICING TECHNIQUES
Currently there are numerous community-based policing (CBP) programs throughout the country that have been implemented by cities and state police forces, from Maryland to California and Nebraska to Florida. CBP is a policing philosophy that emphasizes community involvement in the prevention of crime. It focuses on integrating the police force with the community to build trust and communication between the people and the police officers. (For further reading on the ins and outs of CBP programs, click here). CBP has been most called for and implemented when the police are criticized as being out of touch and unsupported by the community they serve (Gill et al. 2014). While there is question over the effectiveness of CBP programs, there can be no disagreement that trust and communication is required for a positive relationship in the community.
Cities and towns are certainly able to implement these programs and the federal government encourages and helps fund such programs through the Department of Justice, Community Oriented Policing Services (COPS). The question being addressed here is whether there is any constitutionally proper role for either Congress or the President to mandate CBP programs.
In short, no. “The President shall be commander in chief of the Army and Navy, and of the militia of the several states when called into the actual service of the United States.” (Article II, Section 2, Clause 1). This clause grants the President the power to be Commander in Chief of the Army and Navy of the United States. The key words being “of the United States.” Community and state police forces are not in the actual service of the United States, but serve their communities or states. Therefore, the President does not have a constitutional power to mandate CBP programs in state and community police departments. However, the current system of training and funding CBP programs through the DOJ COPS program created by Congress appears to be constitutional insofar as there have been no challenges to this program to date.
Congress has encouraged and funded CBP programs, but can they do more?
Once again, no. There is nothing in Article I, Section 8 that says that the federal government has this power. Congress has the power to “to raise and support armies,” “to make rules for the government and regulation of the land and naval forces,” “to provide for calling forth the militia to execute the laws of the union, suppress insurrections,” but despite the growing militarization of state and local police forces, they are not armies for the purposes of the Constitution. Therefore, it rests with the states to protect health, safety, and welfare of the citizens.
The next place we turn to confirm that neither the President nor Congress has the power to mandate CBP is the Tenth Amendment. Any power that is not delegated by the Constitution is reserved to the states or to the people. There is no enumerated power within the Constitution that allows for federal government to dictate how local police forces are organized and run. Police power is left to the states, which means it is only the states that can dictate and direct police forces in order to protect the health, safety, and welfare of the citizens.
However, Article I, Section 8 also gives Congress the power to spend to “provide for the common Defense and General Welfare of the United States.” Under this power, Congress can spend on the general welfare by conditioning the receipt of the funds. In South Dakota v. Dole, 483 U.S. 203 (1987), the Supreme Court established that Congress can place a condition on receipt of federal funds by a state if the spending is in pursuit of the general welfare, and the condition is unambiguous, related to a specific federal interest, and non-coercive.
In Printz v. United States, 521 U.S. 898 (1997), the court stated, “The power of the Federal Government would be augmented immeasurably if it were able to empress into its service – and at no cost to itself – police officers of the 50 states.” In light of the events in Ferguson, Missouri, there is certainly a distance between the community and the police officers. States should encourage police forces to use the grants and training provided by Congress’s COPS to implement CBP programs and Congress should nudge states along by increasing funding conditioned on COPS or similar programs.
In conclusion, while mandating such programs is not constitutional because there is no federal police power and the power to protect the health, safety, and welfare of the citizens is an authority vested in the states, Congress may use its spending power to encourage CBP programs.
(4) MANDATING THE USE OF INDEPENDENT COUNSEL OR A PROSECUTOR FROM A DIFFERENT JURISDICTION
The lack of Grand Jury indictments in the police killings of Michael Brown and Eric Garner have led to accusations that local prosecutors are often unwilling to faithfully pursue claims against police officers within their own jurisdiction. Accordingly, many have called for the federal government to rectify this issue by mandating that states utilize independent or special prosecutors in cases involving excessive use of force or homicide by a law enforcement official. Congress likely possesses the constitutional power to mandate such a change, as Congress would only need to amend an existing act that provides federal aid to state and local law enforcement agencies (the Omnibus Crime Control and Safe Streets Act of 1968), in order to achieve the desired effect of the reform. In fact, a bill has already been proposed that would require state governors to appoint special and independent counsel in cases that involve police homicide, or else the states would be faced with the prospect of losing their Omnibus funding. According to the proposed bill, the special prosecutor would have the role of determining if there is probable cause to indict a defendant police officer, and would also present evidence on behalf of the state at any related hearing. Such a bill resembles the original Medicare provisions in the Affordable Care Act, as states can refuse to participate, but are thereby “punished” by the withdrawal of federal funding.
Importantly, states were fairly warned that such a suspension of funding could take place. Part E of the Act specifically mentions that federal funds may be suspended if the Attorney General files a civil lawsuit alleging discriminatory conduct on account of race against any state or local government. The Grand Jury Reform Act only adds that states must also abide by a certain protocol in the event of a police homicide in order to receive Omnibus funding. Opponents of the Reform Act would have to tread lightly to avoid eroding the constitutionality of the Omnibus Crime Control and Safe Streets Act of 1968; doing so would eliminate the federal funding that they are suing to keep. Therefore, any attack on the reform would be careful to attack only the Reform Act itself and not the Omnibus Act implicitly.
In order to defeat the constitutionality of the Grand Jury Reform Act, its opponents of would have to argue that Congress is not granted the power to legislate such a bill under Section 5 of the Fourteenth Amendment (granting Congress the power to enforce the Fourteenth Amendment through legislation). Such an argument is weakened by the fact that the Grand Jury Reform Act is written in the interest of preserving substantive portions of the Fourteenth Amendment, as police homicides involve situations in which a state might “deprive any person of life, liberty, or property, without due process of law.” Alternatively, opponents of the bill could argue that revoking Omnibus funds is an overly broad use of the Spending Clause, as seen in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1983), which held that Congress cannot “surprise states” with retroactive conditions that affect their funding. Proponents of the bill could counter that the language of the Omnibus Act disqualifies the Pennhurst argument, as the federal ability to suspend funding on the basis of alleged discrimination is clearly contained in the language of the original Omnibus Act.
Accordingly, if the Grand Jury Reform Act is passed, it likely could allow for the constitutional appointment of independent prosecutors in cases of police homicide.
(5) MANDATING RELEASE OF EVIDENCE PRESENTED TO GRAND JURY
The next possible solution is related to the improvement of the transparency of the grand jury system by providing the public more information about the grand jury decisions in the cases involving the excessive force or killing by the police officers. For example, House Representative Hank Johnson of Georgia, in his actual Grand Jury Reform Act proposal, wants to substitute the current format of the secret grand jury hearing with an open format of a public hearing process. Similarly, the Chief Judge of the New York Court of Appeals, the Honorable Jonathan Lippman, called the current grand jury system as “a medieval institution” and offered his own proposal that included a judge-driven grand jury process and full public disclosure of the information from the proceedings. (For more information about the various reform proposals after the Michael Brown shooting in Ferguson, Missouri, and the Eric Brown chokehold case in New York City, New York, click here.)
Most of these proposals are in the early stage of development, but they will certainly encounter a number of constitutional challenges from the conservative camp. First, the U.S. Supreme Court consistently has recognized that the proper functioning of the grand jury system heavily depends on the secrecy of the proceedings. (United States v. Procter & Gamble Co., 356 U.S. 677 (1958); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979)).
According to the Supreme Court, the assurance of confidentiality helps prospective witnesses to come forward without fear of retribution or retaliation, and also protects those who are accused, but not indicted, from public scorn. Under this view of the Supreme Court, a proposal for an unconditional release of the grand jury material or a proposal to convert the grand jury process into public hearing would most likely be considered unconstitutional.
Second, some proposals apply a special treatment to the high-profile cases that concern excessive force or killing by police officers, and demand the full public disclosure of the information when the grand juries fail to indict the accused officers. This approach should be examined carefully for whether it violates the due process rights of the law enforcement officers under the Fifth Amendment, which guarantees the accused officers the right to fair grand jury proceedings.
Third, the federal mandate of a particular grand jury reform act, e.g. the mandatory release of the transcripts of the hearings, will surely become a successor of the perennial debate over the reach of the federal power into the states. The grand jury system is determined on a state-by-state basis under state constitutions because the grand jury clause in the Fifth Amendment has not been incorporated and made applicable to the state government yet. Thus, any pressure from the federal government, e.g. the proposed withholding of federal funding in Rep. Hank Johnson’s Reform Act proposal, may be considered unreasonable just like the mandatory Medicaid expansion in the Affordable Care Act, which was removed for applying retroactive conditions to federal spending.
An interesting event to monitor is the recent decision of the New York court on the petition to release the materials from the grand jury proceedings for Eric Garner’s chokehold death case. New York has been one of the states that closely follows the federal system with strict applications of the secrecy rule on the grand jury process (even though the chief of its court system has a different opinion as mentioned above). The prosecutors are opposing the release of the records because it would set a bad precedent and scare the witnesses for future cases. The petitioners argue that some measure of transparency is required to serve the public interest where the stake is so high after the nationwide growth of the police killings last year. Also, they argue that the secrecy requirements can be waived in this case because the public already knew the identity of the accused police officer and the concern about the witnesses and juror’s identity could be addressed by redacting the sensitive information from the transcripts. The court’s rationale behind its decision is important to understand because it gives us a good opportunity to take a quick guess on the direction the Supreme Court would take eventually.
The Supreme Court of New York court denied releasing the grand jury records for the Garner case, as expected. In his 12-page opinion, Judge Garnet first emphasized the importance of secrecy in grand jury proceedings, and decided that the petitioners failed to establish a “compelling and particularized need” for the release of information. The petitioners said they would appeal the decision. Will this appeal go all the way up to the highest court, in the hands of Chief Judge Lippman?
In general, the federal government does not have the constitutional power to mandate state policies. However, there are ways for Congress and the President to influence and encourage state policies in order to address the problems facing the United States today.