St. John's University Law Faculty Blog

The conflicts, cooperation, and competition between federal, state, and local power in substantive criminal law and punishments remains one of the most important balancing exercises of federalism in the modern American experiment. A unique expression of this diffusion of power is when federal collateral consequences—such as sentencing enhancements, reporting requirements, and even deportation—are based solely on state law criminal convictions. This underexplored interplay between the federal and state criminal justice system illustrates the passive exercise of federal power, which entirely defers the imposition of collateral consequences upon state and local law.

This Article examines this passive form of federalism, which presents practical problems by cutting against goals to promote uniformity and judicial economy. Passive federalism also runs afoul of many political goals of federalist governance to protect against centralized tyranny, increase democratic participation and accountability, and promote experimentation of sub-federal actors. While passive federalism does prove precarious, the malleability of federalism theory can help map a way out. This Article argues that designing active cooperative and competitive agreements that bring federal, state, and local actors together in the decision-making process to charge, convict, and later impose collateral consequences, can succeed where passive federalism has failed by providing an efficient diffusion of power that fairly and consistently regulates and punishes offenders.