Concurrent Jurisdiction in Practice

Concurrent Jurisdiction in Practice

The preceding sections asked two questions about any criminal prosecution. The first is whether the sovereign that wrote the offense had power to write it, which Congress answers by pointing to an enumerated grant and a State answers by pointing to the general authority the Tenth Amendment reserves to it.¹ The second is whether the court hearing the case has power to adjudicate it. That answer differs by system, because the federal courts rest on Article III while the state courts rest on the Constitution and each State's own laws.² Each question has its own source of authority, so settling one never settles the other, and a single act can satisfy both questions twice, once for each government. This section runs the two together, shows how a collision between the two sovereigns' laws is resolved, and closes with the order in which to take the steps. The first task is to see why one act may be punished by two governments at once.

Overlapping Power to Proscribe

The federal government and the States can both punish the same conduct because each has its own source of power and neither source depends on the other. The federal government possesses only limited powers, and the States and the people retain the remainder.³ A State therefore needs no constitutional authorization to punish street crime, since the Constitution is not the source of its power, while Congress must trace every federal offense to a grant such as the commerce power.⁴ Because the two sources are independent, a single act can fall inside both. The Framers built the system that way: state and federal governments exercise concurrent authority over the people, each with its own direct relationship to them, and neither acts on the people by way of the other.⁵ They also saw the division as a double security for individual rights, because the power surrendered by the people is divided first between two governments.⁶

Robbery of a bank is the standard illustration. A State punishes the robbery under its own robbery law, and the federal government separately punishes robbery of a federally insured institution; the same pairing appears with car theft, which a State punishes as theft and Congress reaches when the stolen vehicle is transported across state lines.⁷ The two statutes protect different interests. The State protects the property and safety of the people within its borders, and Congress protects the federal interest that supplies its hook, which is the insured institution in one case and the interstate movement in the other. The defendant has broken the law of two sovereigns, and each may proceed under its own law.

Overlap with a State's police concerns does not by itself make a federal crime invalid. In United States v. Darby the Court sustained federal regulation of goods shipped in interstate commerce and explained that a regulation of interstate commerce is not a forbidden invasion of state power merely because its exercise is attended by incidents similar to the police power of the States.⁸ The overlap does have limits, and they follow the source of power. In Corfield v. Coryell, Justice Washington, sitting as circuit justice, accepted that some acts on a State's navigable waters, such as throwing ballast into a river or otherwise impeding navigation, may be punished by both the United States and the State. He held, however, that the power to regulate a State's fisheries and to punish those who violate the regulations belonged exclusively to the States and was not surrendered by the grant of admiralty jurisdiction to the federal courts.⁹ Obstructing navigation implicates interests the national government may protect, while taking oysters out of season fell within the State's reserved authority and no federal grant reached it. The decision shows both poles: where a federal hook exists, both sovereigns may punish, and where none does, the State alone may.

Displacement by Conflict

Concurrent power does not mean concurrent supremacy. When a State's law and a valid federal law collide, Article VI makes the Constitution, the laws made in pursuance of it, and treaties the supreme law of the land and binds the judges in every State to follow them over any contrary state law.¹¹ Two filters sit inside that rule. The first asks whether the federal act falls within Congress's enumerated powers, because a federal law outside those powers has no priority over state action.¹² The second asks whether Congress intended its policy to supersede the State's, since Congress often acts without any intent to preempt and federal and state policies may coexist.¹³ The first filter exists because only federal acts that accord with the constitutional design are supreme, and without it Congress could erase a State's reserved criminal power by pointing to a statute it had no authority to pass.¹⁴

The second filter sorts most overlapping criminal laws. Preemption, the displacement of state law by federal law, takes three forms in the Court's account. Congress may displace state law expressly in a statute, may occupy a whole field through a framework so pervasive that it leaves no room for States to supplement it, or may create a conflict, either because compliance with both laws is impossible or because the state law stands as an obstacle to the full purposes and objectives of Congress.¹⁵ Courts also begin from a presumption that the historic police powers of the States are not superseded unless that was the clear and manifest purpose of Congress.¹⁶ The presumption protects the reservation to the States. If every federal statute on a subject ousted state law, each new federal crime would shrink the State's reserved power and leave gaps wherever Congress's narrower reach stopped.

Where displacement does occur, it follows from the reach of the federal scheme. In Hines v. Davidowitz Pennsylvania had its own alien registration law, and the Court held that where Congress, in a field touching foreign affairs, had enacted a complete scheme for registering aliens, the States could not curtail or complement the federal law or enforce additional or auxiliary regulations.¹⁷ The same opinion observed that concurrent state power in that field is restricted to the narrowest limits, which marks it as a field of unusually dominant federal interest and places it at the opposite end from an ordinary robbery statute.¹⁸ In Arizona v. United States the Court applied the same preemption principles to the question whether federal law permitted Arizona to enforce state-law provisions, including a state misdemeanor that added a state-law penalty for conduct federal alien-registration law already proscribed.¹⁹

Supremacy works the same way in criminal procedure. A federal court may issue a writ of habeas corpus ad prosequendum, which directs a custodian to produce a prisoner for federal prosecution, and a State holding that prisoner cannot refuse, because the habeas statute is a valid federal measure that overrides any contrary state preference.²⁰ Students lose this issue when they treat the existence of a federal statute on the same conduct as enough to defeat the state offense, since displacement requires an express provision, an occupied field, or a real conflict.²¹

Overlapping Courts

Separate power to proscribe carries a separate forum with it. The federal district courts have jurisdiction over all federal crimes, which rests on Article III federal-question jurisdiction and on the Article III grant covering cases to which the United States is a party, and 18 U.S.C. § 3231 makes that jurisdiction exclusive.²³ Exclusivity depends on a statute, because Congress has power under Articles I and III to restrict state courts' jurisdiction over a few categories of cases, and patent infringement under 28 U.S.C. § 1338(a) is the familiar example.²⁴ State offenses are tried in the courts of the State that wrote them. Each State has its own court system alongside the federal one, which yields fifty-one systems in all,²⁵ and the state systems carry most of the work, since over 90 percent of criminal prosecutions are brought in them.²⁶ The proportion tracks the difference in reach, because the state police power covers far more conduct than any federal hook does.

The two systems meet at federal questions. A state judge is bound by Article VI and must decide a federal defense raised in a state prosecution, and the Supreme Court may review the state court's decision of that federal question. Martin v. Hunter's Lessee established that review, and Cohens v. Virginia carried it into criminal cases, where the Court upheld Virginia's prosecution of lottery-ticket sellers while asserting authority to review state criminal proceedings.²⁷ As the discussion of Supreme Court review explained, the federal question supplies that jurisdiction, so a judgment resting wholly on state law stays with the state courts. Federal habeas review is a further point of contact: the federal district courts may review final criminal convictions from the state courts under 28 U.S.C. § 2254 and from the federal courts under § 2255, and these actions are statutory substitutes that Congress crafted for common-law habeas corpus.²⁸ Habeas review rests on the same idea as Supreme Court review, which is that a federal court can check a state judgment for federal constitutional error.

Working Sequence

Because the two questions are independent and the supremacy filters depend on the validity of the federal law, the order of analysis matters. Taking power before conflict, and conflict before forum, prevents the common error of resolving a collision between statutes when one of the two sovereigns had no power to enact its law. The steps are these:

Steps two through four are the ones students most often run together. Power is a question about the sovereign that wrote the law, conflict is a question about two laws that are both valid, and forum is a question about the court, so an answer to one does not carry over to another. Step three is a reminder that having power does not end the inquiry. Congress may not command state executive officers to administer a federal regulatory program.³⁰ The people of each State also deprived their States of certain powers, as Article I, section 10 shows.³¹ The last step records the premise on which a later reading builds: each sovereign's law operates on the individual independently, and that later reading addresses prosecution by a second jurisdiction.³²