Issue 1

The Constitution’s First Declared War: The Northwestern Confederacy War of 1790–95

What counts as the first presidential war—the practice of Presidents waging war without prior congressional sanction? In the wake of President Donald Trump’s attacks on Syria, the Office of Legal Counsel opined that unilateral presidential war-making dates back 230 years, to George Washington. The Office claimed that the first President waged war against Native American tribes in the Northwest Territory without first securing congressional authorization. If true, executive war-making has a pedigree as old as the Constitution itself. Grounded in a systematic review of congressional laws, executive correspondence, and rich context of the era, this Article evaluates the claim that our first President waged war in reliance upon his constitutional authority. In fact, there is little that supports the bold claim. Congress authorized war against Northwestern tribes raiding frontier settlements. In other words, Congress exercised its power to declare war and did, in fact, declare war, albeit without using that phrase. Moreover, Washington and his cabinet repeatedly disclaimed any constitutional power to wage war without congressional sanction, making it exceedingly unlikely that he waged war of his own accord or in sole reliance on his constitutional powers. Washington’s abjurations of power should make executive-branch lawyers blush, for the Commander in Chief and his celebrated advisors, including Alexander Hamilton, Thomas Jefferson, and Henry Knox, consistently observed that Presidents could not take the nation to war and, therefore, could not sanction offensive measures, including attacks. The Constitution’s First War was a congressional war through and through, just as the Constitution requires. It was not a presidential war and cannot be cited as a long-lost precedent for presidential wars in Korea, Libya, or Iran.

Introduction

In January of 2020, the United States killed Qasem Soleimani.1 1.Merrit Kennedy & Jackie Northam, Was It Legal for the U.S. To Kill a Top Iranian Military Leader?, NPR (Jan. 4, 2020), https://www.npr.org/2020/01/04/793412105/was-it-legal-for-the-u-s-to-kill-a-top-iranian-military-leader [https://perma.cc/K5E6-8BZE]; Oona A. Hathaway, The Soleimani Strike Defied the U.S. Constitution, Atlantic (Jan. 4, 2020), https://www.theatlantic.com/ideas/archive/2020/01/soleimani-strike-law/604417/ [https://pe­rma.cc/2268-2TQX].Show More Soleimani was Iran’s second-most powerful leader and responsible for killing many American military personnel. The drone strike touched off praise and censure, including doubts about its constitutionality.2 2.Rand Paul (@RandPaul), Twitter (Jan. 3, 2020, 9:02 AM), https://twitter.com/­RandPaul/status/1213098238573723649 [https://perma.cc/8FXY-PK5P].Show More Could the President kill a foreign leader with no congressional authorization? Senator Rand Paul insisted that “[i]f we are to go to war [with] Iran the Constitution dictates that we declare war.”3 3.Risch Says Soleimani Was ‘Ratcheting Up’ Attacks on the U.S., PBS NewsHour (Jan. 3, 2020), https://www.pbs.org/newshour/show/risch-says-soleimani-was-ratcheting-up-attacks-on-the-u-s [https://perma.cc/XGD4-TDG3] (statement of Sen. James Risch). Although the Senator also cited the War Powers Act, the Act conveys no authority to order attacks. Id.; War Powers Resolution of 1973, Pub. L. No. 93-148, § 2, 87 Stat. 555.Show More Senator James Risch disagreed, arguing that “the president . . . has [war] powers under Article 2 of the Constitution.”4 4.Paul Kane & Mike DeBonis, Trump’s Order To Strike Iranian Commander Sparks Fresh Debate in Congress over War Powers, Wash. Post(Jan. 3, 2020), https://www.washington post.com/politics/trumps-order-to-strike-iranian-leader-sparks-fresh-debate-in-congress-over-war-powers/2020/01/03/c8921b82-2e47-11ea-9b60-817cc18cf173_story.html [https://perma.cc/7FH7-TX54].Show More He further noted that “[t]his debate [over war powers] started under George Washington.”5 5.April 2018 Airstrikes Against Syrian Chemical-Weapon Facilities, 42 Op. O.L.C. 1, 1 (May 31, 2018), https://www.justice.gov/sites/default/files/opinions/attachments/2018/05/­31/2018-05-31-syrian-airstrikes_1.pdf [https://perma.cc/8S83-CJZJ].Show More

The audacious attack was hardly unprecedented. In 2018, the United States launched a missile strike against Syrian chemical weapons facilities.6 6.Michael R. Gordon, Helene Cooper & Michael D. Shear, Dozens of U.S. Missiles Hit Air Base in Syria, N.Y. Times (Apr. 6, 2017), https://www.nytimes.com/2017/04/06/world/­middleeast/us-said-to-weigh-military-responses-to-syrian-chemical-attack.html [https://perma.cc/VUJ7-QTJ6].Show More And the year before, the military attacked a Syrian air base with targeted airstrikes.7 7.April 2018 Airstrikes Against Syrian Chemical-Weapon Facilities, supra note 6, at 1.Show More Again, no federal law sanctioned any of these earlier strikes. Rather, President Donald J. Trump relied upon his constitutional powers.

In the wake of the 2018 Syrian strikes, the Department of Justice’s Office of Legal Counsel (“OLC”) opined that President Trump had constitutional authority to attack other nations.8 8.Id.at 7 (quoting Presidential Authority To Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 331 (1970)).Show More The OLC stressed that “[the President] as Commander in Chief, is authorized to commit . . . hostilities, without prior congressional approval.”9 9.Id.at 3.Show More Although the OLC opinion briefly gestured towards constitutional provisions, it actually relied almost entirely on practice. The claim was that President Trump could order the strikes because his predecessors on “dozens of occasions over the course of 230 years” had done the same.10 10.The administration provided a rather brief legal justification for the Soleimani strike, arguing that under Article II, Presidents could use force to, among other things, “protect important national interests.” White House, Notice on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (2020), https://foreignaffairs.house.gov/_cache/files/4/3/4362ca46-3a7d-43e8-a3ec-be02457­05722/6E1A0F30F9204E380A7AD0C84EC572EC.doc148.pdf [https://perma.cc/7CA7-NKAQ]. In a call with reporters, National Security Advisor Robert O’Brien cited both the President’s constitutional authority and the 2002 Iraqi Authorization for Use of Military Force (“AUMF”). Maggie Haberman & Catie Edmondson, White House Notifies Congress of Suleimani Strike Under War Powers Act, N.Y. Times (Jan. 4, 2020), https://www.nytimes.com/2020/­01/04/us/politics/white-house-war-powers-resolution.html [https://perma.cc/HK7E-9ELW].Show More In short, longstanding practices, not specific statutory authorization, set the metes and bounds of presidential war powers.11 11.This Article uses the terms “Native American” and “Indian” interchangeably. This is to acknowledge and respect the preferences that different indigenous people have. See Samantha Vincenty, Should You Use Native American or American Indian? That Depends on Who You Ask, Oprah Mag. (Oct. 30, 2020), https://www.oprahmag.com/life/a34485478/native-american-vs-american-indian-meaning/ [https://perma.cc/7GR4-4DXU]; Native Knowledge 360°: Frequently Asked Questions, Nat’l Museum of the Am. Indian, https://american­indian.si.edu/nk360/faq/did-you-know#:~:text=In%20the%20United%20States%2C%20Na­tive,preferred%20by%20many%20Native%20people [https://perma.cc/AU2N-SKRJ] (last visited Feb. 10, 2021).Show More

This confident claim, that Presidents have waged war on their own authority since the Constitution’s earliest days, rests on an unjustly obscure conflict: the Northwestern Confederacy War (or First War) conducted against several Native American12 12.The war goes by many names, including the “Northwest Indian War,” the “Little Turtle War,” and “President Washington’s Indian War.” In this Article, we will use either “Northwestern Confederacy War” or “First War.” We delve more deeply into the events infra Part II.Show More tribes north of the Ohio River.13 13.April 2018 Airstrikes Against Syrian Chemical-Weapon Facilities, supra note 6, at 6.Show More According to the OLC, “Presidents have exercised their authority to [wage war] without congressional authorization since the earliest days of the Republic.”14 14.Id.Show More Specifically, “President Washington [ordered] offensive operations against the Wabash Indians in 1790.”15 15.A number of scholars have helped establish the dominant view that the original Constitution left the decision to go to war to Congress, to be exercised by bicameralism and presentment. Here is a partial list: Michael D. Ramsey, The Constitution’s Text in Foreign Affairs, ch. 11 (2007); Louis Fisher, Presidential War Power 6–7 (2d ed. 2004); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3–4 (1993); Michael J. Glennon, Constitutional Diplomacy 80–84 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law 17–18 (2d ed. 1989); Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 Cornell L. Rev. 45, 48 (2007); William Michael Treanor, Fame, the Founding, and the Power To Declare War, 82 Cornell L. Rev. 695, 699 (1997); Raoul Berger, War-Making by the President, 121 U. Pa. L. Rev. 29, 36 (1972); Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672, 679 (1972).Show More And because Presidents since George Washington have authorized military attacks without legislative sanction, modern Presidents likewise enjoy the power to wage war without congressional approval.

If our first President waged war without congressional authorization, that fact undermines a common constitutional assertion—that Presidents cannot take the nation to war.16 16.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring).Show More Although many modern scholars and legislators insist that Presidents cannot wage war without congressional authorization, Washington apparently committed the very act that they regard as constitutionally verboten. Further, one might suppose that what was true for Washington must be no less true for Harry Truman, Barack Obama, and Donald Trump. Hence, as a matter of constitutional law, Presidents can wage war as they please against North Korea, Libya, Syria, or, for that matter, Canada.

The OLC’s argument could be understood in two different ways. First, the OLC could be asserting that because Presidents have enjoyed the power to wage war from the Constitution’s inception, this practice sheds light on the original meaning of “executive power,” “Commander in Chief,” and “declare war.” Second, the OLC could be advancing a different claim, namely that despite the original meaning of these phrases, practice from the government’s earliest days has layered a “gloss” on them,17 17.John C. Yoo & Robert J. Delahunty, Authority for Use of Military Force To Combat Terrorist Activities Within the United States 10 n.15 (Oct. 23, 2001), https://nsarch­ive2.gwu.edu/torturingdemocracy/documents/20011023.pdf [https://perma.cc/­4QEN-AF­WP]; Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327, 333 (2000).Show More meaning that whatever the original scheme, Presidents today enjoy the power to wage war. We believe the 2018 OLC opinion makes the first sort of claim. After all, dutiful and upright Washington would never deliberately violate the Constitution. If he took the nation to war, it would seem that, notwithstanding Congress’s power to declare war, the original Constitution truly sanctioned presidential wars. And it follows that the conventional view about war powers is misguided because Washington’s war refutes it.

The OLC’s recent invocation of the Northwestern Confederacy War is not exceptional. Other OLC opinions have cited the war, although none have given it the prominence and weight that the 2018 opinion does.18 18.Abraham D. Sofaer, The Power Over War, 50 U. Miami L. Rev. 33, 38–41 (1995); John Yoo, George Washington and the Executive Power, 5 U. St. Thomas J.L. & Pub. Pol’y 1, 19–20 (2010).Show More These opinions relied upon the work of scholars, most notably Abraham Sofaer and John Yoo, who drew constitutional lessons from the war.19 19.See Yoo & Delahunty, supra note 18, at 10 n.15; Authorization for Continuing Hostilities in Kosovo,supra note 18, at 333.Show More

Because the OLC has repeatedly cited the First War to justify the executive’s unilateral use of military force abroad,20 20.Federal Legislature, Phila. Gen. Advertiser, Jan. 4, 1793, at 3 (comments of Rep. Wadsworth).Show More it is necessary to carefully assess it. There is a considerable risk that an incomplete or mistaken understanding of the war may become embedded in the historical narrative and mislead politicians and scholars. The First War may become the sturdy keystone for a view that Presidents can take the nation to war because that is what Washington supposedly did only a year after the Constitution’s inception.

The OLC’s opinions, and the underlying scholarship, while rigorous in many respects, rely on incomplete evidence and fail to properly situate the conflict in its historical context. The historical record demonstrates that Congress in fact authorized Washington to start the Northwestern Confederacy War and repeatedly approved the war’s continuation. Far from inaugurating the practice of presidential wars, the First War marked the earliest exercise of Congress’s power to “declare war.”

Consequently, Washington laid no novel gloss on the “executive power” or the “Commander in Chief” Clauses. Claims to the contrary tether the first President to a flawed and anachronistic proposition he never once entertained—that Presidents enjoy constitutional authority to start wars. As we demonstrate, George Washington in fact publicly proclaimed exactly the opposite. He forcefully insisted that Commanders in Chief could not wage war unilaterally. He endorsed this principle categorically, applying it even in the wake of declarations of war issued by other nations. On this point, his cabinet fully agreed. The claim that Presidents could lawfully take the nation to war was so outside the mainstream that neither Washington nor anyone else voiced it, even to reject it. At the time, no one read the Constitution as the executive branch (mis)reads it today. The debate we have today simply did not exist during the Washington administration because no one at the time claimed that the Constitution authorized Presidents to start wars.

Resting on the first in-depth evaluation of primary materials, this Article corrects the record and sheds new light on the original War Constitution. In our telling, America’s First War teaches a number of vital lessons. First, Congress’s power to declare war encompassed authority to sanction military expeditions, including the power to authorize offensive measures. Second, despite serving as Commander in Chief and enjoying the “executive power,” the President clearly lacked such power. Third, Congress could exercise its authority to “declare war” without using the precise phrase or a formal declaration. Fourth, via its decisions over the army’s size and the delegation of authority to summon state militias, Congress regulated the President’s conduct of the First War.

The Northwestern Confederacy War witnessed a remarkable number of “firsts.” The war marked the first exercise of Congress’s power to declare war. As one critic said, it was “the war of the legislature.”21 21.By Particular Desire, Phila. Gen. Advertiser, Jan. 7, 1792, at 2.Show More As another detractor put it, the new government found the Indians in the Northwest “in a state of disquietude” and “declare[d] war against them, as a display of power.”22 22.Prakash, supra note 16, at 96, 105.Show More The war also marked the first major interplay between the Commander in Chief and Congress, with the latter guiding the former and the former acting under the auspices of legislative decisions. The Commander in Chief was under the command of Congress.

Part I reviews existing treatments of the Northwestern Confederacy War and recounts the First War. Part II discusses the power to declare war and what the Founders said of that power prior to 1789. Part III recounts the statutes that Congress passed to authorize and support the First War. Part IV discusses what Washington and his cabinet said about presidential power to wage war without congressional authorization. Part V draws concluding lessons from America’s first war.

Colorado River Abstention: A Practical Reassessment

When duplicative civil suits proceed simultaneously in both state and federal court, a waste of resources is bound to occur. Nevertheless, the Supreme Court has maintained that federal courts must typically retain jurisdiction over such concurrent litigation. Under the Colorado River abstention doctrine, only “exceptional circumstances,” beyond the mere pendency of a parallel state case, will permit a federal court to relinquish jurisdiction in favor of the state action. How have the lower federal courts responded to this mandate to take jurisdiction, given the inherent waste and confusion engendered by concurrent litigation? And is there a more coherent and efficient way to manage this symptom of our dual federal-state court system? This Note seeks to answer these questions by focusing on the practical application of Colorado River “on the ground” in the lower courts, a subject largely unexplored by the otherwise voluminous scholarship on federal abstention.

By surveying decades of cases involving Colorado River abstention in two federal courts of appeals and two district courts, this Note reaches a startling conclusion. Driven by a lack of guidance from the U.S. Supreme Court and a desire to rid their dockets of duplicative suits, the lower courts have taken wildly divergent approaches to Colorado River. The Second Circuit Court of Appeals, for example, has applied the doctrine rigidly, demanding that district courts retain jurisdiction in all but the most exceptional circumstances. Under pressure from this circuit precedent, judges in the Southern District of New York have frequently sought to “effectively” abstain via alternative means, simultaneously relinquishing federal jurisdiction and frustrating appellate review. When they instead attempt to proceed to judgement rather than effectively abstain, the result is typically (and unsurprisingly) a significant waste of judicial resources. On the other hand, the Seventh Circuit has taken a highly permissive view of Colorado River abstention, watering down the otherwise restrictive doctrine. Judges in the Northern District of Illinois have taken up this view with alacrity, abstaining pursuant to Colorado River in the vast majority of cases involving parallel state litigation, subject only to limited and deferential appellate review.

This inconsistent doctrinal development could hardly be described as desirable—a combination of informal abstention and judicial waste in the Second Circuit compared with virtually unfettered discretion to formally abstain in the Seventh Circuit. Thus, this Note concludes with a comprehensive proposal to bring greater structure and coherency to the doctrine while avoiding both of these negative results.

If you can think of a subject which is interrelated and inextricably combined with another subject, without knowing anything about or giving any consideration to the second subject, then you have a legal mind.1 1.Thurman Arnold, Fair Fights and Foul: A Dissenting Lawyer’s Life 20–21 (1965) (quoting Professor Thomas Reed Powell).Show More

Introduction

Of the numerous complexities inherent in the United States’ dual federal-state court system, the potential for concurrent litigation is one of the most anomalous and vexing. Concurrent litigation, as it will be discussed in this Note, occurs when adverse parties simultaneously litigate the same or similar claims in both federal and state court.2 2.See Josue Caballero, Note, Colorado River Abstention Doctrine in the Fifth Circuit: The Exceptional Circumstances of a Likely Reversal, 64 Baylor L. Rev. 277, 279–80 (2012) (describing this phenomenon in the state-federal context). Concurrent litigation can also arise between two federal courts, two state courts, or even within a single state court system. Allan D. Vestal, Repetitive Litigation, 45 Iowa L. Rev. 525, 525 (1960) [hereinafter Vestal, Repetitive Litigation]. These other forms of concurrent litigation are beyond the scope of this Note.Show More Because the subject-matter jurisdictions of these dual judicial systems are largely concurrent,3 3.Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507–08 (1962) (citing Clafin v. Houseman, 93 U.S. 130, 136 (1876)); Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame L. Rev. 1347, 1350 (2000) [hereinafter Redish, Intersystemic Redundancy].Show More this phenomenon is not uncommon. Though seemingly at odds with the U.S. Supreme Court’s insistence that the state and federal courts “are not foreign to each other, nor to be treated by each other as such, but as courts of the same country,”4 4.Howlett v. Rose, 496 U.S. 356, 367 (1990) (quoting Clafin, 93 U.S. at 137).Show More parallel state-federal litigation is nonetheless permitted, and duplicative cases are generally allowed to proceed in both courts simultaneously.5 5.Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (“Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’” (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910))).Show More Notwithstanding the inherently wasteful nature of such litigation,6 6.James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L. Rev. 1049, 1064 (1994) (describing concurrent litigation as “patently wasteful”).Show More the ability of a federal court to decline jurisdiction over a case that is duplicative of an ongoing state proceeding is, at least in theory, extremely narrow.7 7.Colo. River, 424 U.S. at 817–19 (explaining that federal courts should only defer to concurrent state court proceedings in “exceptional” circumstances and that “[o]nly the clearest of justifications will warrant dismissal”).Show More

As courts of limited jurisdiction, the federal courts possess only the jurisdiction conferred by the Constitution and congressional statute.8 8.Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).Show More While it is traditionally accepted that Congress retains plenary power to control the jurisdiction of the lower federal courts,9 9.Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671, 671–72 (1997) (“The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction.”). The canonical citation for that view (also known as the “traditional” view) is Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). Velasco, supra, at 674–75.Show More whether those courts are required to exercise the jurisdiction given them is less certain.10 10.For examples of the differing views on this topic, compare Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984) [hereinafter Redish, Separation of Powers] (arguing that federal courts have little discretion to decline jurisdiction conferred by Congress), with David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985) (arguing for greater judicial discretion over jurisdiction).Show More Where state and federal courts enjoy overlapping jurisdiction, the answer to that question is governed partially by the abstention doctrines.11 11.See Leonard Birdsong, Comity and Our Federalism in the Twenty-First Century: The Abstention Doctrines Will Always Be with Us—Get Over It!!, 36 Creighton L. Rev. 375, 376 (2003).Show More Federal abstention law comprises a series of “judge-made” doctrines12 12.Zwickler v. Koota, 389 U.S. 241, 248 (1967); see also Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 824–25 (2008) (describing the abstention doctrines as examples of federal common law).Show More that “identify the circumstances in which federal courts deem it appropriate to refrain from adjudicating a case to permit some other body—typically a state court—to adjudicate it first.”13 13.Barrett, supra note 12, at 824; see also Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (“The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”).Show More

It is the most recently developed of these doctrines,14 14.The three earlier-developed abstention doctrines are also named after the cases in which they were first articulated. Pullman abstention, a relative of the doctrine of constitutional avoidance, governs situations in which a federal court can abstain to allow a state court to answer unsettled questions of state law that are relevant to the federal case and that may obviate the need to decide a difficult constitutional question. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). Burford abstention permits federal courts to decline jurisdiction to avoid disrupting a complex state regulatory scheme. See Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943). Finally, Younger abstention prevents federal courts, absent a showing of bad faith or harassment, from enjoining ongoing state criminal or quasi-criminal proceedings. See Younger v. Harris, 401 U.S. 37, 54 (1971).Show More known as Colorado River abstention, that governs a federal court’s limited ability to refrain from exercising jurisdiction over cases involving concurrent litigation.15 15.Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817–19 (1976). Though the Supreme Court declined to describe the doctrine promulgated in Colorado River as a form of abstention, see id. at 817, there seems to be no principled basis for this distinction. Given that most lower court judges and several Supreme Court Justices have referred to the Colorado River doctrine as a version of abstention, for the sake of simplicity I will refer to it as such. See 17A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 4247, at 471 nn.77–78 (3d ed. 2007) (collecting cases referring to the doctrine as Colorado River abstention).Show More As described by the Supreme Court in the eponymous case of Colorado River Water Conservation District v. United States,16 16.424 U.S. 800 (1976).Show More this doctrine is a carefully circumscribed exception to the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.”17 17.Id. at 817.Show More The Court acknowledged that considerations of judicial economy and efficiency could indeed permit a federal court to decline jurisdiction in this context, but it emphasized that “the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention” under the other abstention doctrines.18 18.Id. at 817–18. Note that declining jurisdiction in this context could constitute either a stay or dismissal of the federal case, because when a district court abstains pursuant to Colorado River it is assumed that there will be no further proceedings in the federal court except perhaps application of res judicata upon the state court’s resolution of the controversy. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983).Show More

Since its promulgation in 1976, Colorado River abstention has been the subject of significant scholarly commentary, both favorable and critical.19 19.It would be both impossible and unproductive to attempt an exhaustive survey of the literature on Colorado River abstention here. For representative examples of generally positive commentary, see Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013); Gene R. Shreve, Pragmatism Without Politics—A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767 (1991); Ann Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035 (1989); Shapiro, supra note 10. For more critical views, see Martin H. Redish, Judge-Made Abstention and the Fashionable Art of “Democracy Bashing,” 40 Case W. Res. L. Rev. 1023 (1989) [hereinafter Redish, Judge-Made Abstention]; Donald L. Doernberg, “You Can Lead a Horse to Water . . .”: The Supreme Court’s Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 Case W. Res. L. Rev. 999 (1989); Linda S. Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Geo. L.J. 99 (1986); Redish, Separation of Powers, supra note 10.Show More Though the academy has been quick to take sides on the propriety and usefulness of the doctrine, commentators have devoted scant attention to its function in practice. Most discussion of the topic has been theoretical, and there has been virtually no effort to systematically analyze how the doctrine is applied by the lower courts.20 20.Though a few such analyses have been undertaken, the vast majority considered the reaction of the lower courts in the immediate aftermath of the Court handing down Colorado River and hence are seriously outdated. See, e.g., Mullenix, supra note 19, at 128–49. For an example of a rare, recent attempt, see Caballero, supra note 2, at 277–79 (surveying cases in the Fifth Circuit and concluding that “[a] decision [by a district court] to abstain under Colorado River practically guarantees reversal” (footnote omitted)).Show More Without a picture of the practical import of Colorado River abstention, it is difficult to validate much of the scholarly commentary, both positive and negative. Given that the Supreme Court has scarcely addressed the topic in more than three decades,21 21.See infra notes 60–68 and accompanying text.Show More and hence the bulk of the doctrinal development has occurred in the lower courts, this gap in the literature is all the more significant.

The purpose of this Note is to begin closing that gap by analyzing the degree to which lower federal courts fulfill their “virtually unflagging obligation” in practice. To do so, I reviewed all opinions that referenced Colorado River abstention over the course of ten years, 2008–2018, in two federal district courts, the U.S. District Court for the Southern District of New York and the Northern District of Illinois. I did the same with twenty-five years of opinions, 1993–2018, issued by the appellate courts to which cases from those districts are appealed, the U.S. Courts of Appeals for the Second and Seventh Circuits.22 22.A few notes on methodology and scope will be helpful before proceeding. First, to find these cases, I searched both Bloomberg Law and Westlaw for the terms “Colorado River” and “abstention.” To ensure no cases were missed, I cross checked those results against the American Law Reports’ database of Colorado River abstention decisions, 193 A.L.R. Fed. 291. Second, the temporal scope of the court of appeals research was limited to cases decided between January 1, 1993, and January 1, 2018. Likewise, the district court research was limited to cases that met the following three criteria: (1) the case was filed in or transferred to either the Southern District of New York or the Northern District of Illinois on or after January 1, 2008; (2) the district court decided a question of Colorado River abstention prior to January 1, 2018; and (3) the case was not transferred to another district court. Third, the cases included in my analyses were limited to those in which the district court actually decided a question of Colorado River abstention. Cases in which Colorado River was provided as an alternative holding or was denied in dictum (e.g., after the court had already dismissed the case for failure to state a claim) were included and noted as such. On the other hand, cases in which the parties raised a question of Colorado River abstention but the court did not specifically address it were excluded. Likewise, cases which were ultimately decided under the more flexible doctrine of Brillhart/Wilton abstention—which governs a federal court’s discretion to decline jurisdiction over a declaratory judgment action in favor of a pending state proceeding—were excluded. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). Finally, except where specifically noted, cases resolved under the doctrine of so-called “international comity” abstention, in which a federal court abstains in favor of concurrent litigation in the courts of a foreign nation, were also excluded. See, e.g., Freund v. Republic of France, 592 F. Supp. 2d 540, 565–66 (S.D.N.Y. 2008).Show More

Various factors informed my choice of both the courts and timeframe for analysis. With respect to courts, I chose the Southern District of New York and the Northern District of Illinois for three reasons. First, each handles a high volume of civil litigation and hears a wide variety of civil cases.23 23.In 2017, the Northern District of Illinois had the third largest civil docket among the federal district courts, while the Southern District of New York ranked fifth. See U.S. Courts, Statistical Tables for the Federal Judiciary, at tbl.C-1, U.S. District Courts—Civil Cases Filed, Terminated, and Pending During the 12-Month Period Ending June 30, 2017, https://­www.uscourts.gov/­sites/default/files/data_tables/stfj_c1_630.2017.pdf [https://perma.cc/RY­46-XXDT].Show More Second, the decisions of these courts are appealed to two different courts of appeals, enabling an investigation of differences in doctrinal development and application between circuits. Third, and most importantly, they appear to have heard the highest number of requests to abstain under Colorado River over the applicable timeframe.24 24.This was determined by searching both the published opinions and dockets of the federal district courts for four sets of terms related to Colorado River abstention and concurrent litigation. Each court was then ranked according to the combined number of results between opinions and docket for each search term. The Southern District of New York ranked first in every search, while the Northern District of Illinois ranked second, third, or fourth in each.Show More Thus, focusing on these two courts was intended to enable an analysis of a diversity of Colorado River cases decided by judges relatively familiar with the doctrine. The temporal scope was chosen partially for simple administrative feasibility and to capture the most recent doctrinal developments. Furthermore, as a portion of the research involved analyzing the time between a case being filed and reaching judgment,25 25.See infra note 119 and accompanying text.Show More it was essential that the analyzed cases be governed by a relatively consistent pleading standard. Therefore, the starting date was chosen so as to fall after the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly,26 26.550 U.S. 544 (2007).Show More which announced the heightened “plausibility” pleading standard for federal suits.27 27.Id. at 556–57.Show More

Analysis of these cases reveals stark trends. By and large, the application of Colorado River abstention in the lower courts is a story of confusion and unpredictability. Struggling with a paucity of guidance from the Supreme Court, the courts of appeals and their corresponding district courts have taken divergent approaches to the issue. Federal cases involving parallel state court litigation can expect wildly different treatment if filed in the Southern District of New York versus the Northern District of Illinois. Moreover, though they take nearly opposite approaches, neither court’s methodology has furthered the goals of either Colorado River abstention’s critics or its supporters. Indeed, it could be said that the worst fears of both sides of the argument have been realized—the doctrine as currently applied promotes judicial waste, creates uncertainty for judges and litigants alike, and often results in the parties being denied access to a federal forum without a sufficiently clear (or any) rationale.

This Note addresses these issues and considers their resulting implications in four parts. Part I provides necessary background. It briefly reviews the types and causes of concurrent state-federal litigation. It then traces the historical development in the lower federal courts of what would come to be known as Colorado River abstention. This Part concludes with an overview of the doctrine itself as promulgated by the Supreme Court in Colorado River and subsequent cases. Part II presents the findings of my lower court research. It summarizes the relevant doctrinal development in each circuit then analyzes, both quantitatively and qualitatively, the application of that doctrine in the district courts. Part III synthesizes the conclusions of the lower court research and proposes an alternative framework under which questions of Colorado River abstention could be decided. Given the unsatisfactory nature of the doctrine as currently applied, the purpose of this proposal is to create greater theoretical coherence and decisional consistency while simultaneously maximizing efficiency and conserving judicial resources. Part IV concludes by briefly addressing and rebutting potential objections to the proposal offered in Part III. In sum, this Note offers a practical reassessment of what could be a valuable doctrine of federal courts law but what currently represents little more than another source of needless litigation over jurisdiction.

  1. * J.D., University of Virginia School of Law, 2019. I am indebted to Professors John C. Jeffries, Jr. and Caleb Nelson for their helpful comments and discussions. Special thanks are also due to the members of the Virginia Law Review who assisted in the editing and preparation of this piece, including Nick Carey, Julian Kritz, Laura Toulme, Edward Wixler, and many others. Any errors are my own. ↑
  2. Thurman Arnold, Fair Fights and Foul: A Dissenting Lawyer’s Life 20–21 (1965) (quoting Professor Thomas Reed Powell). ↑
  3. See Josue Caballero, Note, Colorado River Abstention Doctrine in the Fifth Circuit: The Exceptional Circumstances of a Likely Reversal, 64 Baylor L. Rev. 277, 279–80 (2012) (describing this phenomenon in the state-federal context). Concurrent litigation can also arise between two federal courts, two state courts, or even within a single state court system. Allan D. Vestal, Repetitive Litigation, 45 Iowa L. Rev. 525, 525 (1960) [hereinafter Vestal, Repetitive Litigation]. These other forms of concurrent litigation are beyond the scope of this Note. ↑
  4. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507–08 (1962) (citing Clafin v. Houseman, 93 U.S. 130, 136 (1876)); Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame L. Rev. 1347, 1350 (2000) [hereinafter Redish, Intersystemic Redundancy]. ↑
  5. Howlett v. Rose, 496 U.S. 356, 367 (1990) (quoting Clafin, 93 U.S. at 137). ↑
  6. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (“Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’” (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910))). ↑
  7. James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L. Rev. 1049, 1064 (1994) (describing concurrent litigation as “patently wasteful”). ↑
  8. Colo. River, 424 U.S. at 817–19 (explaining that federal courts should only defer to concurrent state court proceedings in “exceptional” circumstances and that “[o]nly the clearest of justifications will warrant dismissal”). ↑
  9. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). ↑
  10. Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671, 671–72 (1997) (“The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction.”). The canonical citation for that view (also known as the “traditional” view) is Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). Velasco, supra, at 674–75. ↑
  11. For examples of the differing views on this topic, compare Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984) [hereinafter Redish, Separation of Powers] (arguing that federal courts have little discretion to decline jurisdiction conferred by Congress), with David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985) (arguing for greater judicial discretion over jurisdiction). ↑
  12. See Leonard Birdsong, Comity and Our Federalism in the Twenty-First Century: The Abstention Doctrines Will Always Be with Us—Get Over It!!, 36 Creighton L. Rev. 375, 376 (2003). ↑
  13. Zwickler v. Koota, 389 U.S. 241, 248 (1967); see also Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 824–25 (2008) (describing the abstention doctrines as examples of federal common law). ↑
  14. Barrett, supra note 12, at 824; see also Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (“The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”). ↑
  15. The three earlier-developed abstention doctrines are also named after the cases in which they were first articulated. Pullman abstention, a relative of the doctrine of constitutional avoidance, governs situations in which a federal court can abstain to allow a state court to answer unsettled questions of state law that are relevant to the federal case and that may obviate the need to decide a difficult constitutional question. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). Burford abstention permits federal courts to decline jurisdiction to avoid disrupting a complex state regulatory scheme. See Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943). Finally, Younger abstention prevents federal courts, absent a showing of bad faith or harassment, from enjoining ongoing state criminal or quasi-criminal proceedings. See Younger v. Harris, 401 U.S. 37, 54 (1971). ↑
  16. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817–19 (1976). Though the Supreme Court declined to describe the doctrine promulgated in Colorado River as a form of abstention, see id. at 817, there seems to be no principled basis for this distinction. Given that most lower court judges and several Supreme Court Justices have referred to the Colorado River doctrine as a version of abstention, for the sake of simplicity I will refer to it as such. See 17A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 4247, at 471 nn.77–78 (3d ed. 2007) (collecting cases referring to the doctrine as Colorado River abstention). ↑
  17. 424 U.S. 800 (1976). ↑
  18. Id. at 817. ↑
  19. Id. at 817–18. Note that declining jurisdiction in this context could constitute either a stay or dismissal of the federal case, because when a district court abstains pursuant to Colorado River it is assumed that there will be no further proceedings in the federal court except perhaps application of res judicata upon the state court’s resolution of the controversy. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983). ↑
  20. It would be both impossible and unproductive to attempt an exhaustive survey of the literature on Colorado River abstention here. For representative examples of generally positive commentary, see Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013); Gene R. Shreve, Pragmatism Without Politics—A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767 (1991); Ann Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035 (1989); Shapiro, supra note 10. For more critical views, see Martin H. Redish, Judge-Made Abstention and the Fashionable Art of “Democracy Bashing,” 40 Case W. Res. L. Rev. 1023 (1989) [hereinafter Redish, Judge-Made Abstention]; Donald L. Doernberg, “You Can Lead a Horse to Water . . .”: The Supreme Court’s Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 Case W. Res. L. Rev. 999 (1989); Linda S. Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Geo. L.J. 99 (1986); Redish, Separation of Powers, supra note 10. ↑
  21. Though a few such analyses have been undertaken, the vast majority considered the reaction of the lower courts in the immediate aftermath of the Court handing down Colorado River and hence are seriously outdated. See, e.g., Mullenix, supra note 19, at 128–49. For an example of a rare, recent attempt, see Caballero, supra note 2, at 277–79 (surveying cases in the Fifth Circuit and concluding that “[a] decision [by a district court] to abstain under Colorado River practically guarantees reversal” (footnote omitted)). ↑
  22. See infra notes 60–68 and accompanying text. ↑
  23. A few notes on methodology and scope will be helpful before proceeding. First, to find these cases, I searched both Bloomberg Law and Westlaw for the terms “Colorado River” and “abstention.” To ensure no cases were missed, I cross checked those results against the American Law Reports’ database of Colorado River abstention decisions, 193 A.L.R. Fed. 291. Second, the temporal scope of the court of appeals research was limited to cases decided between January 1, 1993, and January 1, 2018. Likewise, the district court research was limited to cases that met the following three criteria: (1) the case was filed in or transferred to either the Southern District of New York or the Northern District of Illinois on or after January 1, 2008; (2) the district court decided a question of Colorado River abstention prior to January 1, 2018; and (3) the case was not transferred to another district court. Third, the cases included in my analyses were limited to those in which the district court actually decided a question of Colorado River abstention. Cases in which Colorado River was provided as an alternative holding or was denied in dictum (e.g., after the court had already dismissed the case for failure to state a claim) were included and noted as such. On the other hand, cases in which the parties raised a question of Colorado River abstention but the court did not specifically address it were excluded. Likewise, cases which were ultimately decided under the more flexible doctrine of Brillhart/Wilton abstention—which governs a federal court’s discretion to decline jurisdiction over a declaratory judgment action in favor of a pending state proceeding—were excluded. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). Finally, except where specifically noted, cases resolved under the doctrine of so-called “international comity” abstention, in which a federal court abstains in favor of concurrent litigation in the courts of a foreign nation, were also excluded. See, e.g., Freund v. Republic of France, 592 F. Supp. 2d 540, 565–66 (S.D.N.Y. 2008). ↑
  24. In 2017, the Northern District of Illinois had the third largest civil docket among the federal district courts, while the Southern District of New York ranked fifth. See U.S. Courts, Statistical Tables for the Federal Judiciary, at tbl.C-1, U.S. District Courts—Civil Cases Filed, Terminated, and Pending During the 12-Month Period Ending June 30, 2017, https://­www.uscourts.gov/­sites/default/files/data_tables/stfj_c1_630.2017.pdf [https://perma.cc/RY­46-XXDT]. ↑
  25. This was determined by searching both the published opinions and dockets of the federal district courts for four sets of terms related to Colorado River abstention and concurrent litigation. Each court was then ranked according to the combined number of results between opinions and docket for each search term. The Southern District of New York ranked first in every search, while the Northern District of Illinois ranked second, third, or fourth in each. ↑
  26. See infra note 119 and accompanying text. ↑
  27. 550 U.S. 544 (2007). ↑
  28. Id. at 556–57. ↑

Statutory Federalism and Criminal Law

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). ↑
©Virginia Law Review Association. All rights reserved.