Over the past few years, several high-profile police-involved shootings and alleged instances of excessive force have generated congressional interest in state and local policing. Congressional interest in policing reform revolves primarily around the public's confidence in the police and accountability for excessive use of force. What role should Congress play in facilitating efforts to bolster confidence in the police? Should Congress seek to improve law enforcement's accountability regarding the excessive use of force? These questions are bounded by limits of congressional authority.
Limits of Congressional Authority
The federalized system of government in the United States limits the influence Congress can have over state and local law enforcement policies.
The U.S. Constitution established a federal government of limited powers. A general police power is not among them. That authority is largely reserved for the states. The Constitution, however, does vest Congress with legislative powers under the Spending, Commerce, Territorial, and Necessary and Proper Clauses, as well as under the enforcement sections of the Civil War Amendments. Congress has exercised this authority in the past to enact legislation that relates to law enforcement matters. Yet even here, its authority is not boundless.
Congress may spend for the general welfare and thereby encourage states to take or refrain from various activities. In doing so, however, the encouraged state action must relate to the purpose for which federal funds are spent. Moreover, state action may be encouraged, not commandeered or compelled. Commandeering and compulsion are also beyond the scope of the Commerce Clause, which otherwise empowers Congress to regulate the flow, instrumentalities, and substantial impacts of interstate and foreign commerce. Congress may enact model legislation for federal enclaves, but its reach there is geographically limited. The Necessary and Proper Clause permits implementing legislation, but only to the extent this legislation reasonably relates to powers that the Constitution elsewhere grants to the federal government. Finally, each of the Civil War Amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments—conveys the power to enforce its provisions by appropriate legislation, but that power is cabined by the terms of the amendment and by judicial interpretation of its breadth.
Tools Available to the Federal Government to Promote Law Enforcement Reform
If Congress wants to influence local policing, it can hone at least three items in the federal criminal justice toolkit: policing-related data collection by the U.S. government, federal processes to investigate local police misconduct, and the relationship between the Department of Justice (DOJ) and police throughout the United States.
Federal Data Collection Efforts on Police Use of Force
The federal government collects and disseminates limited data on the use of force by state and local police. Several programs gather this kind of information, but none collects data on every use of force incident in the United States.
Investigating Law Enforcement Misconduct
The federal government has several ways to ensure that state and local law enforcement practices and procedures adhere to constitutional norms. The first is criminal enforcement brought directly against an offending officer under federal civil rights statutes. Section 242 of Title 18 makes it a federal crime to willfully deprive a person of his or her constitutional rights while acting under color of law. Similarly, Section 241 of Title 18 outlaws conspiracies to deprive someone of his or her constitutional rights.
More broadly, a key federal statute focuses on the civil liability of law enforcement agencies as a whole, rather than the wrongdoing of individual officers. Section 12601 of Title 34 prohibits government authorities or their agents from engaging in a "pattern or practice of conduct by law enforcement officers ... that deprives persons of rights ... secured or protected by the Constitution or laws of the United States." It authorizes the Attorney General to sue for equitable or declaratory relief when he or she has "reasonable cause to believe" that such a pattern of constitutional violations has occurred.
The Influence of DOJ on Policing
DOJ and its component agencies, such as the FBI, can help shape policing in the United States. Such influence can be seen in at least four roles that DOJ and its components play on this stage:
Law Enforcement Reform Efforts in the Current Congress
Despite limits on congressional power to shore up trust and accountability within local policing contexts, legislation introduced in the116th Congresses seeks to influence police practices. Such legislation would attempt to (1) better understand and track use of force by law enforcement; (2) reform how investigations of police-involved deaths are conducted; (3) require law enforcement agencies to provide more training on issues such as implicit bias or racial profiling to their officers; (4) promote diversity in police hiring; and (5) expand the use of body-worn cameras. Much of the legislation introduced in this Congress focuses on altering existing federal tools historically used to shape local policing.
Policy Options
There are several options policymakers might examine should they choose to play a role in facilitating better police-community relations and accountability for excessive use of force, including the following: