Joshua M. Divine

Federal law regularly incorporates state law as its own. And it often does so dynamically so that future changes to state laws affect how federal law will apply. For example, federal law protects against deprivations of property, but states largely get to define what “property” is. So when a state changes its property law, it automatically influences the effect of federal law. This interdependence mediates the tension that would otherwise arise when regulations from different governments overlap.

This Article is the first to identify how rare meaningful use of dynamic incorporation is in criminal law and also how this scarcity affects that law. With some notable exceptions, Congress ordinarily acts alone in criminal law. But using dynamic incorporation more often would redress two problems: the political inertia that makes reforming criminal laws exceptionally difficult and the limited accountability officials face for their enforcement decisions.

Marijuana laws provide a compelling example. Federal law flatly prohibits all marijuana use. But forty-six states now have laws that conflict with federal law, and ninety-three percent of Americans believe that medicinal marijuana should be lawful. The only legislation Congress has managed to pass in response to this conflict makes heavy use of dynamic incorporation. This example and others suggest that dynamic incorporation reduces congressional inertia in criminal law. What’s more, dynamic incorporation creates additional flexibility that prevents these kinds of conflicts from arising in the first place.

Dynamic incorporation also furthers separation-of-powers values. Local and federal enforcement officials have created a relationship that makes local officials a critical part of federal enforcement. This relationship is efficient, but it also enables local officials to evade state law constraints. Local officials can use this ability to, for example, worsen sentencing disparity. Dynamic incorporation rebalances power by giving state legislatures the opportunity to exercise greater oversight of enforcement discretion, enhancing enforcement accountability.

Federalism scholars have overlooked the most potent consequences of dynamic incorporation. Traditional federalism focused on identifying and defining the separate spheres of federal or state influence. And national federalism has focused on how states empower the federal government or shape policy by helping administer federal policies or programs. But this scholarship has missed the important consequences that occur when Congress enables states not only to administer federal programs or policies, but partly to define the existence and scope of those programs or policies—consequences that have particular potency in criminal law.

Introduction

In the aftermath of an enormous expansion in federal reach, a system of dual federal and state regulation now governs most major issues. But in many areas, Congress has not preempted state law. It instead has engaged in a form of federalism—statutory federalism—that enables state law to influence how and when federal law applies. The tax code and the Social Security Act, for example, provide federal benefits for married persons, but state law primarily determines who is married.¹ 1.E.g., 42 U.S.C. § 416(b), (f), (h) (2012) (defining “wife,” “husband,” and “married” by referencing state law as construed by state courts).Show More Federal law protects against deprivations of property, but states largely define what “property” is.² 2.Akhil Reed Amar, Foreword: Lord Camden Meets Federalism—Using State Constitutions to Counter Federal Abuses, 27 Rutgers L.J. 845, 854–55 (1996) (“Property is often—though admittedly not always—a state law concept, and one that changes over time. Thus, the compensation clause will indeed vary from state to state and year to year as the state-law tinged concept of property itself varies.”); see also Murr v. Wisconsin, 137 S. Ct. 1933, 1944–45 (2017) (narrowly ruling that some undefined limits constrain the ability of states to redefine property).Show More Even bankruptcy law, which constitutionally must be “uniform,”³ 3.U.S. Const. art. I, § 8.Show More has enormous regional variance because state law determines whether a debt exists.⁴ 4.Michael C. Dorf, Dynamic Incorporation of Foreign Law, 157 U. Pa. L. Rev. 103, 144 (2008).Show More

In these and other areas, federal law depends on application of state law and thus “incorporates” state law. And this incorporation often is “dynamic”: federal law automatically changes as the incorporated state laws are amended. The Constitution, for example, protects against depriving persons of forms of property that are modern, not only those forms that existed when the relevant constitutional provisions were ratified.

Dynamic incorporation eases the tension that would otherwise arise when different governments issue regulations that overlap. Its critical importance becomes apparent from those instances where it is not used. Marijuana law provides a striking example. State and federal marijuana laws are in stark conflict precisely because Congress has not created interdependence between those laws. As states have passed competing laws, those laws—unlike statutes using dynamic incorporation—have had no effect on when or how federal law applies.

The scholarship has overlooked the importance of dynamic incorporation, both in federalism and in criminal law. Federalism scholarship has not yet understood the relationship created when Congress enables state legislatures to determine how and when federal law will apply. Indeed, as Professor Abbe Gluck points out, the incentives for dynamic incorporation have remained “almost entirely unrecognized.”⁵ 5.Abbe R. Gluck, Our [National] Federalism,123 Yale L.J. 1996, 2008 & n.45 (2014) [hereinafter Gluck, Our [National] Federalism].Show More Criminal law scholarship is similar. One scholar has discussed some drawbacks to federal reliance on state law.⁶ 6.Wayne A. Logan, Creating a “Hydra in Government”: Federal Recourse to State Law in Crime Fighting, 86 B.U. L. Rev. 65, 74, 84–101 (2006).Show More But criminal law scholarship has not yet recognized that meaningful use of dynamic incorporation is rare in federal criminal law—at least, it is rare in those statutes that are routinely enforced.⁷ 7.Some exceptions exist. Federal law considers state law for sentencing, but interdependence between the state and federal statutes that create substantive criminal liability rarely occurs for the statutes that are enforced. The one notable exception to this rule is the statute that bars people who have committed state felonies from possessing firearms. 18 U.S.C. § 922(g) (2018). But as this Article shows, even that exception employs only a weak, ineffective form of dynamic incorporation.Show More

This Article fills these gaps. It explains how dynamic incorporation expands upon the framework of “national federalism” often discussed by Professors Heather Gerken and Abbe Gluck—that is, statutory instead of constitutional federalism. It explains the consequential importance of dynamic incorporation and the incentives for using it. And then, focusing on criminal law, this Article establishes that Congress’s decision to enact criminal laws that overlap substantially with state law but not to create substantive interdependence between those regimes generates two serious problems. Greater use of dynamic incorporation would reform criminal law in two ways.

First, it would reduce the unique inertia that impedes reforming criminal law. In criminal law, political incentives ordinarily favor a one-way ratchet toward more criminal laws, making it more difficult than normal to reform or update older legislation.⁸ 8.See notes infra 125­–133 and accompanying text.Show More Dynamic incorporation curbs this inertia by giving each of the fifty states an opportunity to update federal law. What’s more, bills that use dynamic incorporation generally face less political opposition because their allowance for greater regional variability means they are less likely to inconvenience key stakeholders. This fact means that these bills are more likely to become enacted. Both these measures give Congress greater flexibility. And applied to criminal law, these measures help ease the inertia that makes reforming criminal laws exceptionally difficult.

Again, the conflict over marijuana laws illustrates this concept well. Federal law prohibits all uses of marijuana, but the vast majority of Americans support at least medicinal use, so most states have passed laws that permit what federal law unequivocally prohibits. This author, like most major medical associations, remains skeptical of medicinal use because marijuana has not undergone the kind of scientific studies required for other medicinal products.⁹ 9.See, e.g., Smart Approaches to Marijuana, https://learnaboutsam.org/the-issues/public-health-organizations-positions-on-medical-marijuana/ [https://perma.cc/VD97-3YR2] (com­piling the positions of national medical associations, such as the American Medical Asso­ciation); Alex Smith, As Missouri Voters Weigh Legalizing Medical Marijuana, Doctors Urge a Look at Its Health Risks, Nat’l Pub. Radio (Nov. 1, 2018), http://www.kbia.org/post/miss­ouri-voters-weigh-legalizing-medical-marijuana-doctors-urge-look-its-health-risks [https://­perma.cc/CZ3S-ZE2X] (explaining that many medical associations oppose modern medical marijuana initiatives because of a lack of evidence that marijuana operates in the way activists promise).Show More But regardless of the scientific debate, the conflict between state and federal law harms the rule of law and creates many collateral consequences.

Dynamic incorporation could have—and still can—mediate this conflict. The most robust form of dynamic incorporation is a federal statute that lets states create safe harbors against federal liability: if a person complies with state law, then they are not subject to federal enforcement. A federal law with this kind of provision would allow states to drag federal marijuana law slowly into conformity with public opinion, state by state. In fact, Congress has passed only one legislative response to this conflict, and it did so by enacting this kind of provision—albeit using a budget rider that is both temporary and narrow.¹⁰ 10.Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348, 444–45; United States v. McIntosh, 833 F.3d 1163, 1169 (9th Cir. 2016).Show More

Second, dynamic incorporation can strengthen separation of powers by providing state legislatures with greater opportunities to exercise oversight for enforcement discretion. Few realize that local police heavily influence federal prosecutions and thus can evade state law. Local police often are the information gatekeepers both for local and federal prosecutors. So local police often can avoid more defendant-friendly state sentencing laws, substantive laws, or procedures simply by shifting defendants to federal court. This forum shopping might be beneficial in some contexts. But the problem is that it is exercised with little or no external accountability.

Dynamic incorporation provides new opportunities to reinforce separation of powers by checking that discretion. By creating an interdependence between federal and state legislatures, dynamic incorporation opens the opportunity for fifty more legislatures to oversee how federal law is enforced. Because those legislatures shape federal law, they can narrow the circumstances in which local officials are able to evade the constraints of state law. More generally, the joint partnership between federal prosecutors and local police enhances the power of executive officials compared to legislatures, but dynamic incorporation restores some of that power to legislatures.

This Article proceeds in four parts. Part I explains why dynamic incorporation is one of the most potent tools of modern federalism. This Part describes the concept of dynamic incorporation and classifies those kinds of statutes into four categories. This Part then explains the scholarship on “national federalism,” which studies how the modern Congress entrusts states to implement federal programs, and explains that federalism scholars have not yet appreciated that dynamic incorporation is a potent tool Congress can use to enable state legislatures to help Congress obtain national ends. This Part then explains what the limited scholarship on dynamic incorporation in criminal law misses.

Part II reveals how dynamic incorporation can mitigate the problem of inertia in criminal law. Using the conflicting state and federal laws on marijuana as an illustration, this Part explains how dynamic incorporation can remove the political barriers unique to criminal law that make it harder to reform or update anachronistic criminal statutes. And it explains why dynamic incorporation prevents conflicts like the conflict over marijuana law from occurring in the first place.

Part III then explains that dynamic incorporation reinforces separation of powers by providing greater accountability over enforcement discretion. This Part first exposes the relatively invisible contributor to unchecked enforcement discretion. When Congress greatly expanded the scope of federal criminal law, it did not proportionately increase the federal police force. Local enforcement officials fill that gap, serving as information gatekeepers for federal prosecutors. That new role enhances the power of both local and federal enforcement officials—at the expense of other officials. Dynamic incorporation checks this discretion because it multiplies the number of institutions that can oversee the power of executive officials and rebalances the power to shift some influence away from enforcement officials to legislatures.

Part IV responds to objections. It explains why problems applying the Armed Career Criminal Act do not weigh against dynamic incorp­oration. Although that statute uses dynamic incorporation, the provisions that lead to extensive litigation are precisely those provisions that do not use dynamic incorporation. More dynamic incorporation in fact would resolve the difficulties with that statute. This Part also explains that the relative scarcity of dynamic incorporation in federal criminal law is not due to any determination by Congress that dynamic incorporation would not serve its purposes. Finally, this Part explains that dynamic incorporation does not amount to unlawful delegation, and that possible concerns about decreasing uniformity do not counsel against using dynamic incorporation.

1. * Yale Law School, J.D. 2016. All views are my own. I am grateful to Professors Heather Gerken, Abbe Gluck, Derek Muller, Michael Dorf, and Wayne Logan, and also to Krista Perry, Madeline Lansky, James Durling, John Ehrett, and Andrew Nussbaum for their insightful comments about this project. ↑
2. E.g., 42 U.S.C. § 416(b), (f), (h) (2012) (defining “wife,” “husband,” and “married” by referencing state law as construed by state courts). ↑
3. Akhil Reed Amar, Foreword: Lord Camden Meets Federalism—Using State Constitutions to Counter Federal Abuses, 27 Rutgers L.J. 845, 854–55 (1996) (“Property is often—though admittedly not always—a state law concept, and one that changes over time. Thus, the compensation clause will indeed vary from state to state and year to year as the state-law tinged concept of property itself varies.”); see also Murr v. Wisconsin, 137 S. Ct. 1933, 1944–45 (2017) (narrowly ruling that some undefined limits constrain the ability of states to redefine property). ↑
4. U.S. Const. art. I, § 8. ↑
5. Michael C. Dorf, Dynamic Incorporation of Foreign Law, 157 U. Pa. L. Rev. 103, 144 (2008). ↑
6. Abbe R. Gluck, Our [National] Federalism, 123 Yale L.J. 1996, 2008 & n.45 (2014) [hereinafter Gluck, Our [National] Federalism]. ↑
7. Wayne A. Logan, Creating a “Hydra in Government”: Federal Recourse to State Law in Crime Fighting, 86 B.U. L. Rev. 65, 74, 84–101 (2006). ↑
8. Some exceptions exist. Federal law considers state law for sentencing, but interdependence between the state and federal statutes that create substantive criminal liability rarely occurs for the statutes that are enforced. The one notable exception to this rule is the statute that bars people who have committed state felonies from possessing firearms. 18 U.S.C. § 922(g) (2018). But as this Article shows, even that exception employs only a weak, ineffective form of dynamic incorporation. ↑
9. See notes infra 125­–133 and accompanying text. ↑
10. See, e.g., Smart Approaches to Marijuana, https://learnaboutsam.org/the-issues/public-health-organizations-positions-on-medical-marijuana/ [https://perma.cc/VD97-3YR2] (com­piling the positions of national medical associations, such as the American Medical Asso­ciation); Alex Smith, As Missouri Voters Weigh Legalizing Medical Marijuana, Doctors Urge a Look at Its Health Risks, Nat’l Pub. Radio (Nov. 1, 2018), http://www.kbia.org/post/miss­ouri-voters-weigh-legalizing-medical-marijuana-doctors-urge-look-its-health-risks [https://­perma.cc/CZ3S-ZE2X] (explaining that many medical associations oppose modern medical marijuana initiatives because of a lack of evidence that marijuana operates in the way activists promise). ↑
11. Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348, 444–45; United States v. McIntosh, 833 F.3d 1163, 1169 (9th Cir. 2016). ↑