Posted by: J. Connor Matthews, Madeline Mayer, Bobby McCormick, Courtney McMinn,Marcus McGillivray, Brandon Millam, & Caitlyn Mitchell.

BlackLivesMatterBlack Lives Matter and Campaign Zero calling for reform within police departments.

On August 9, 2014, a police officer shot Michael Brown, a young African-American male, in Ferguson, Missouri. In the days and weeks that followed, major civil unrest erupted throughout the city. The unrest quickly spread, with violent riots and a wave of mass protests that emerged across the country. The media quickly reported and people learned that the shooting of Michael Brown was not an isolated incident. After strikingly similar incidents in New York, Maryland, and Texas, anti-discrimination movements became prominent, bringing the issue of racial discrimination in policing to the national forefront. As more instances of police brutality against minority citizens took place around the country, large movements like Black Lives Matter surfaced. Their calls for reform focus on the strained relationship between minority communities and law enforcement producing legislative campaigns such as Campaign Zero.

Campaign Zero calls for some of the following reforms: (1) The use of independent counsel during proceedings against police officers accused of police brutality; (2) Community representation, whereby the demographics of the police force better resemble the demographics of the community at-large; and (3) Enhanced freedom in filming police officers. These reforms are just several among many other proposals such as limiting the use of force, enhancing police training, increasing community oversight, and ending broken windows policing (i.e. enforcing crimes that do not affect public safety such as marijuana consumption or loitering). In campaigning for these reforms, the Black Lives Matter movement, through the legislative efforts of Campaign Zero, aims to reduce the tension between minority communities and their police departments. So we’ve asked ourselves, what role can Congress and the federal government play in these reforms that are largely state issues, and what sort of power does the federal government have to enact these legislative reform efforts?

Political challenges may arise with respect to the 10th Amendment and the reserved powers of the states. If Congress attempts to mandate the States in an area that is within the reserved power of the states, the 10th Amendment may prevent legislation from being passed. However, Congress has power and can encourage the states through the Spending Clause of the U.S. Constitution, so long as the funding offered to the states does not coerce them into accepting the funds. Although both the 14th Amendment and the Spending Clause may grant Congress the ability to pass legislation addressing these issues, the issue of state sovereign immunity of the 11th Amendment and the heated political rhetoric surrounding state’s rights may hinder Congress’ ability.

1) Independent Counsel. Appointing independent prosecutors for instances of alleged police misconduct.

Many media news stories have brought a major issue to the forefront of national attention— whether local prosecutors can effectively pursue justice in grand jury trials involving the alleged criminal activity of local police officers. Major public outrage exists regarding the failure of grand juries to indict police officers in several highly-publicized cases involving the use of deadly force against racial minorities. Some recent examples include the shooting of 12-year old Tamir Rice, the use of a lethal chokehold against Eric Garner, and the shooting of Michael Brown. Many within the Black Lives Matter movement are calling for reform by way of the federal government mandating the use of independent prosecutors in grand jury trials which involve killings committed by local police. Independent prosecutors are essentially prosecutors from a different jurisdiction than the police officers against whom an indictment is sought. Most recently, this issue received major attention in the South Carolina Democratic Party Debate. The host of MTV’s Decoded, Franchesca Ramsey, posed a question to candidate Sen. Bernie Sanders (I-VT) and said, “I believe there’s a huge conflict of interest when local prosecutors investigate cases of police violence within their own communities.” As this issue becomes increasingly politicized, it is important to understand both why some people believe that the current criminal procedure of these cases creates a conflict of interest and also what powers are available to Congress to remedy this conflict.

Our inquiry begins with a brief explanation of the potential conflict of interest created when local prosecutors indict local police officers. In a grand jury trial, prosecutors have a great amount of influence over the grand jury’s decision to indict a suspect. They control the evidence shown to the jurors, deciding what witnesses and testimony is included. Also, no judge or defense counsel is allowed into a grand jury trial, so the grand jury will only hear from the prosecutor and any witnesses called. Furthermore, local prosecutors work with their local police department constantly. Their ability to prosecute depends on maintaining a good professional relationship with the police because police do the investigative work on which prosecutors build their cases. Prosecutors may even develop personal relationships with members of the police force. Even if most local prosecutors do not allow their relationship with the police to interfere with their duty during these grand jury trials, the public still perceives this conflict of interest, heavily impacting their confidence in the system.

To remedy this issue, Congress can use the Spending Power to create incentives for local governments to use independent prosecutors when investigating police officers. The Spending Power is found in Article I, Section 8, Clause 1 of the U.S. Constitution. It states “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excise, to pay the Debts and provide for the common Defence and general Welfare of the United States.” With this power, Congress can create incentives for state and local governments. Congress can give states increased federal funding for compliance with the provisions of congressional legislation; alternatively, Congress can limit already existing federal funding for non-compliance. However, the Supreme Court has established several requirements that Congress must satisfy for such spending to be a proper execution of their Constitutional power. First, the spending must promote the “general welfare.” Second, the conditions must be unambiguous. Third, the conditions must be related to the federal interest. Fourth, the conditions must not be coercive. Lastly, the legislation must be constitutional.

Using the Spending Power as a possible remedy, Rep. Steve Cohen (D-Tenn.) proposed legislation which could reduce federal funding to local law enforcement under the Omnibus Crime Control and Safe Streets Act of 1968. The bill would reduce funding by 20% if States do not use independent prosecutors in police deadly force cases. The proposed legislation would also require state police officers to undergo annual training on “ethnic and racial bias, cultural diversity, and police interaction with the disabled, mentally ill, and new immigrants,” or suffer a reduction in funding. The legislation hits on many issues Campaign Zero calls for.

The Cohen Bill will likely meet the five requirements of the Spending Power and be deemed constitutional. For the first requirement, the Spending Power gives broad discretion to Congress. An expansive interpretation has been adopted as to what constitutes the “general welfare of the United States.” The Cohen Bill meets the first requirement because incentives encouraging a non-discriminatory and well-trained police force promote the general welfare of communities throughout the United States. Furthermore, requiring independent prosecutors will increase the public’s trust in the justice system because prosecutors are more effectively holding these police officers accountable. The bill meets the second requirement because it is unambiguous. The bill clearly states the specific requirements that must be met for a state to comply with the bill, including hourly requirements for each officer’s annual training and a final compliance date for the states. The bill meets the third requirement because this bill is clearly related to federal interests in promoting public safety, stopping governmental discrimination, and ensuring just criminal proceedings for accused police officers.

If the conditions of the Cohen Bill are deemed not coercive to states, the bill will meet the fourth requirement. Though Congress can assert pressure by threatening to cut funding, the punishment for non-compliance cannot pass the fine line where “pressure turns into compulsion.” In Sebelius, the Supreme Court held that the Medicaid expansion portion of the Affordable Care Act (“Obamacare”) legislation was coercive. It required states to comply with many new obligations under Medicaid or lose all current federal Medicaid funding. The Court reasoned that this requirement was like putting a “gun to the head” of the states and asking them to choose. States had no real choice. States had become so reliant on the federal funding that if they did not accept the Medicaid expansion, their state’s Medicaid program would collapse. Alternatively in Dole, the Court held that it was not coercive to decrease a state’s federal highway funds by 5% if that state did not increase its legal drinking age to 21. The Court reasoned that Congress was offering mild encouragement. Applied here, the Cohen Bill proposes a 20% cut in federal funding for noncompliance, resting somewhere in the middle of these two cases, although leaning closer to the Dole case. Though a 20% cut in funding is a very significant amount of money (between 2009 and 2014, the federal government allocated about $18 billion in funds to state and local law enforcement programs), it probably does not go so far as to “place a gun to the head” of states. The State choice still remains intact. However, this analysis is highly dependent on the Court’s determination of states’ abilities to maintain an effective police force even in the event of a potential funding cut should they choose not to adopt the program.

The bill likely meets the fifth requirement, requiring constitutionality, because Congress is exercising an enumerated power under the Spending Clause. In light of the federal government subjecting states to rearrangement of their police departments, the States may try to argue that these attempts are in violation of the powers reserved to them by the 10th Amendment. The 10th Amendment states, “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.” More simply put, this amendment states that all powers not specifically granted to the federal government are reserved to the states or the people. Under the circumstances here, the Constitution does not specifically grant power to the federal government to police citizens. Therefore, the states may try to argue that policing citizens falls into the power of the States by default and Congress is not allowed to commandeer that state function.

Though the Cohen Bill in its current form is likely constitutional, it is highly unlikely to pass given the current political climate. The policing issue has become increasingly polarized, with Democrats generally in favor of independent prosecutors and Republicans generally disfavoring federal interference with state law enforcement. As of recent, however, Republicans have increasingly come around to the idea of independent counsel as a remedy for these problems as well. Although, the Cohen Bill or a similar bill may have a better chance at passing if Democrats seize control of Congress in the upcoming election, national consensus is building on the issue of independent prosecutors.

Though this sounds like a plausible argument, it has limited bite power and is really just political rhetoric. This argument will not prohibit Congress from passing independent counsel provisions. Although the 10th Amendment reserves non-delegated powers, Congress has several grants of powers given to them through the Constitution; they can use these grants to achieve these independent counsel goals. Applied here, the Spending Power is an enumerated power and bypasses this concern. So long as Congress does not commandeer a State’s function (meaning forcibly mandate that they do something), Congress has an extremely strong argument around any political “state’s rights” or 10th Amendment claims.

If a more favorable Congress is receptive to the concepts of the Cohen Bill, precedent exists for federal regulation of State matters when States have failed to address recognized grievances of its minority citizens. The Voting Rights Act of 1965 gave the Attorney General and the Director of the Census unreviewable power to determine if a state or locality infringed on minority voter turnout. Congress based the Voting Rights Act on the 15th Amendment, which protects the right to vote for all citizens. Congress can create similar legislation to address discriminatory practices of local law enforcement, whether it is through the use of an independent counsel as suggested in the Cohen Bill, or some other review committee. Although policing is a state issue, federal intervention may be necessary when individual rights are repressed by the tyranny of a local governing majority. Under the 13th Amendment, specifically Section 2, Congress has the power to enforce legislation that will eliminate discriminatory practices and remaining “badges of slavery.” Discriminatory policing practices are certainly rational relics or “badges of slavery.” Consequently, under special legislation, Congress should be able to enact new laws requiring an independent review of discriminatory policing practices.

In conclusion, a bill akin to Rep. Cohen’s proposal has a few avenues that would work towards its passage and help it to survive constitutional challenges. Though there are arguments against such a measure, such as a states’ rights argument under the 10th Amendment, these sorts of arguments are limited in their bite power. Congress may also have a vehicle under the 13th Amendment’s Enforcement Clause to pass legislation as proposed.

MilitarizedPolice2) Community Profiling. Having local and state police forces demographically mirror the community they represent.

It has regularly been shown that minorities are more likely than whites to view law enforcement with suspicion and distrust. Additionally, minorities report that the police disproportionately single them out because of their race or ethnicity. (To read more about this issue, click here). In the wake of this problem, one technique that might be employed, and has been proposed by Campaign Zero, is to mandate that police departments reflect and are responsive to the cultural, racial and gender diversity of the communities they serve. “While white men represent less than one third of the U.S. population, they comprise about two thirds of U.S. police officers.”

The Washington Post supported this idea, commenting that “when cops do need to use force, the community is more likely to see it as one of their own using force to protect them than as an outside entity inflicting force on one of their own.” Likewise, the Washington Post added that “pulling cops from the community itself fosters empathy. That’s important not just in reducing the use of force, but in encouraging cooperation and trust during investigations, which makes it less difficult to solve crimes.” In fact, Connecticut recently implemented House Bill No. 7103 which reflects these very ideas. The bill encourages police departments to hire minorities. Not only that, but in communities that contain a relatively high concentration of minority residents, the police department is required to make efforts to recruit, retain, and promote minority police officers so that the racial and ethnic diversity of the unit is representative of that community.

In theory, implementing similar laws nationwide like Connecticut’s approach may help to reduce racial tensions; Congress may be able to implement such laws using a 14th Amendment argument. The 14th Amendment offers a potential avenue of reprieve to minorities being repressed by local government conduct. Section 5 of the 14th Amendment gives Congress the power to enact legislation that specifically addresses the rights granted to all persons under Section 1 of the amendment. Under Board of Trustees v. Garrett, the Supreme Court held that Congress must demonstrate a pattern of irrational state discrimination to uphold a cause of action under the 14th Amendment. The racial makeup of police departments being so disproportionate to the communities they serve could be argued as an irrational practice. If minority communities distrust predominately-white law enforcement officials and racial tensions continue to grow, it would be irrational for police departments to continue on hiring under the old practices that led to the current racial gap in police diversity. Additionally, under City of Boerne v. Flores, the Supreme Court required that “there must be a congruence between the means used and the ends to be achieved.” Although the Flores test is arguably subjective (arbitrary and flabby, according to the late Justice Scalia), it is not hard to see how a Congressional act requiring that police departments be more reflective of the communities they serve would be a congruent means to an end. It would promote racial equality, helping to uphold due process rights. Rights are guaranteed to all citizens, regardless of race, under Section 1 of the 14th Amendment.

Even if the Supreme Court finds that Congress’ legislative actions are constitutional in regards the implementation of community representation programs, another potential hurdle exists for those actions—the 11th Amendment. The Supreme Court has all but enshrined state sovereign immunity in its recent 11th Amendment rulings, most notably in its Seminole Tribe case. There, the Court reasoned that the 11th Amendment protects states from being sued in their corporate capacity directly. However, an exception does exist to this state sovereign immunity doctrine—the In ex Parte Young doctrine. The doctrine allows state officials to be sued and courts may issue injunctive relief (meaning that the Court can compel action) for claimants seeking the enforcement of federal law. Applied here, claimants negatively affected by a state’s failure to implement the racial mirroring legislation will not be able to sue the state directly. For example, if the federal government provides funds to the program and the state of Florida does not implement the program, the 11th Amendment prevents private citizens from suing the state directly. However, an individual may take those state officials to court who are in charge of implementing those programs. If a high-ranking state police officer is tasked by the Florida Governor Rick Scott to implement the program and fails to do so, both that police officer and the Governor may be sued directly. The Court may then issue injunctive relief, compelling the state officials to implement the program or face legal consequences, such as being fined or held in contempt of court.

(3) Cameras. Filming the police both through body cameras on individual police officers and independent citizens.

The Black Lives Matter movement has called for the use of body cameras on police officers. Their plan would require that all police officers wear body cameras, have a dash camera in every police cruiser, and ensure protection for those who film police during arrests. Video evidence has illuminated the police brutality issue. In a report on filming police, police officials noted that the use of body cameras reduced police brutality incidents because they enhanced the professionalism of the officer wearing the camera. One police chief noted, “everybody is on their best behavior when the cameras are running.” After implementing a body camera program, the Rialto Police Department in California found a 60% reduction in use of force incidents and an 88% reduction in citizen complaints. The Mesa Police Department in Arizona, in conjunction with researchers at Arizona State University, found that officers not wearing body cameras had three times the number of complaints compared to those wearing the body cameras. The Police Chief of the Surprise Police Department in Arizona also noted that video footage of police encounters reduces complaints, benefiting both the police force and the community at large. For example, they experienced a racial profiling complaint that was later disproven because the entire incident was filmed, demonstrating benefits for both the public and the police departments themselves. Approximately one-third of all U.S. Police Departments have implemented the use of body cameras for their police officers, but questions of cost have arisen. At the same time, a few states such as Illinois, Arizona, and Texas have tried to criminalize citizen filming of police interactions. In light of the costs associated with body cameras, current non-use by two-thirds of all police departments, and attempted criminalization of police filming by citizens, should Congress act? How should it act? And lastly, can it even legally act at all?

Sen. Brian Schatz (D-HI) proposed an amendment to the Omnibus Crime Control and Safe Streets Act of 1968 in order to alleviate the cost issue associated with body cameras via a pilot study. Under this amendment, the Attorney General would be able to provide grants to police departments to use body cameras. To receive funds from the federal government and assist with the substantial cost investment of body cameras, the grant would have several conditions attached. The receiving body must collaborate with the local community to ensure for the safe and secure handling of taped data and to periodically review that handling protocol. Some protocols include creating complaint mechanisms for abuse of the footage and ensuring that the footage is only used to investigate misconduct by the law enforcement agencies. The bill then uses this pilot program to conduct studies. The Assistant Attorney General must then create a report and submit it to Congress within a designated timeframe. For Congress to enact such legislation, they would need to understand fully their legislative powers under the Spending Clause.

Congress can use their Spending Power to create incentives for local police departments. Congress can match funding of grants given to the local police departments, which will aid the departments in obtaining the necessary funds to purchase cameras. The Spending Power states “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excise, to pay the Debts and provide for the common Defence and general Welfare of the United States.” With this power, Congress can create incentives for state and local governments by giving states increased federal funding for compliance with the provisions Congress creates. There are a few requirements that Congress must satisfy in order for such a condition to be a proper execution of their Constitutional power: (1) The spending must promote the “general welfare;” (2) The condition must be unambiguous; (3) The condition must be related to the federal interest; (4) The condition must not be coercive; and (5) The bill must be constitutional.

Sen. Schatz’s amendment would promote the general welfare. As demonstrated above, studies have shown that police wearing body cameras altered their behavior to the benefit of the community. Further, the study submitted to Congress using this pilot program would serve the general welfare because better and more concrete evidence would be made available, further documenting the value of body cameras. Second, the conditions listed are not ambiguous; they are listed out concretely. The amendment calls for collaborative work between police and the community to protect the information stored on body cameras and to create standards adhering to the conditions set forth in the amendment. As to the third requirement, ensuring fairness in police interactions is clearly related to a federal interest. Fourth, the conditions set forth are not coercive because the funding is new funding and not funding that is being either withheld or limited. The bill gives 50% of the allotted funds at the outset, and then upon meeting the conditions grants the additional 50% of funds. The Federal Government will match up to 75% of the funds for police department’s body cameras. And finally, it is likely constitutional; the program provides tremendous aid to a problem faced by many police departments with the cost of the cameras being so expensive.

HandsUpDon'tShootIt is likely that Sen. Schatz’s Amendment would survive a Spending Power challenge under the conditions above because unlike Sen. Cohen’s Bill, which cuts funding, Schatz’s bill grants new funding. The Court held in Dole that a mere 5% reduction in federal funding was not coercive, concluding that it was a small engagement. Here, Schatz’s bill calls for absolutely no reduction in spending in order to receive the funds. The bill would likely be successful because many police departments want the body cameras due to their demonstrable benefits. Some of these benefits include that now police departments will have evidence to use in cases of alleged racial profiling, reduced administrative costs associated with citizen complaints, an ability to hold officers to higher standards, and an ability to review police officers in the field. The cameras also benefit the community at-large. The community can be confident in knowing that if they are discriminated against or if there is some form of brutality committed in their community, they are not left to speculative inquiry about what happened. Instead, they will have documented visual evidence informing them of exactly what happened, whether it is negative on the police department or a false claim.

With the Spending Power no longer an issue, the real question then becomes whether such a bill would pass in Congress given the current political climate. There is an extreme divide over the root of these police incidents, with individuals on the right and left disagreeing as to their causes. A Republican-controlled Senate may find difficulty in passing this bill. This editorial opinion, however, posits that maybe the Republican Party is moving in a direction where such a measure would be acceptable legislation; if true, then we can assume that over time a bill like this will be properly reviewed on its merits.

Although the body cameras have aided in reducing the number of overall complaints and successfully disproven illegitimate complaints, legislation in Illinois, Arizona, and Texas has tried to criminalize independent citizens from filming police interactions. In light of the pushback by these states, other states may argue that these sorts of congressional attempts are in violation of the powers reserved to them by the 10th Amendment. However, as previously noted, that argument has limited bite power. The argument is political in nature and likely to be unsuccessful. Although the 10th Amendment reserves the policing power to the states, congressional powers specifically granted by the Constitution allow Congress the means to get around a potential 10th Amendment argument. Congress would be able to implement body cameras under the Spending Clause, an enumerated power, and thus bypass this issue. So long as Congress does not commandeer a State’s function, Congress will overcome the pushback from states using the 10th Amendment reserved powers argument.


In summary, Congress has multiple ways to enact legislation and combat the issues of discrimination against racial minorities while not directly interfering with the state police powers. Congress does not have the power to mandate the states policing policies under the 10th Amendment, but through the Spending Power and Enforcement Clauses, it can encourage the states to act on the issues that the Black Lives Matter movement is pushing to address under Campaign Zero. The three measures specifically addressed above would have tremendous impact on tensions between racial minorities and police in their communities, and would serve to aid Campaign Zero and Black Lives Matter’s goal of reducing these tensions.