Issue 2

Prosecuting Federal Crimes in State Courts

May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is “yes.” From the Progressive era to the present, scholars have urged that state courts be allowed to entertain federal criminal prosecutions—prosecutions now within the exclusive jurisdiction of the federal courts. These proposals aim to alleviate pressures on the federal courts caused by Congress’s unabated federalization of ostensibly local crimes, by returning many such crimes to local courts for local enforcement. While scholars debate the utility of such proposals, this article focuses on a different and less well explored problem: whether such proposals are constitutional.

A close review of the evidence—including the Constitution’s framing and ratification, the early practices of Congress and the state courts, as well as more modern developments—suggests that there is far less support for the possibility of concurrent state court jurisdiction over federal crimes than is often assumed. In addition to these jurisdictional concerns, doubts would surround the question whether state prosecutors could be compelled or even authorized to exercise federal prosecutorial power, absent compliance with the Constitution’s Appointments and Take Care Clauses. Even assuming such compliance, cross-jurisdictional prosecutions also raise the question whether criminal defendants facing federal charges in state court would enjoy various constitutional protections still applicable only in federal courts, as well as questions respecting the operation of double jeopardy and the location of the pardon power. While the constitutional problems may not be insurmountable, this article concludes that they are sufficiently pervasive and difficult that proposals for state court prosecutions of federal crimes should be rejected.

Confusion and Coercion in Church Property Litigation

This Note argues that by allowing states to apply their own idiosyncratic common and statutory law to disputes over church property between supercongregational denominations and local parishes, the “neutral principles” approach that the Supreme Court validated in Jones v. Wolf inevitably creates inconsistency in the results of these disputes. This inconsistency in turn coerces denominations such as the Protestant Episcopal Church and the United Presbyterian Church into abandoning either their method of property management or traditional control over parishes. In effect, mainline supercongregational Protestant denominations are forced, in violation of their Free Exercise right to choose their own form of governance, to become either more “Catholic” or more “Baptist.” As a remedy to this problem, this Note proposes a novel solution—a federal statute to standardize and simplify the decision rules for church property disputes. Although such a statute would raise constitutional issues of its own, this Note concludes that such a statute would be within Congressional jurisdiction and permissible under both the Establishment Clause and the Free Exercise Clause.

Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency

First, the paper offers the first considered examination of the immigration constitution of the early Republic. We find, both in the text of the Naturalization Clause and in its early application, a strong commitment to norms of prospectivity, uniformity and transparency. These norms rule out retrospective changes in the law and foreclose the practice of case-by-case private legislation in the naturalization field.

Second, the paper shows that the framers perceived the rules of naturalization as tantamount to rules of immigration law. This identity followed from the close association of citizenship and the right to own land. In a pre-industrial economy, where travel to the new world was relatively expensive and almost invariably permanent, easy rules of naturalization translated into a liberal immigration policy. One finds recognition of the essential identity of naturalization and immigration in such varying sources as the naturalization grievance of the Declaration of Independence and the comments of James Madison on the nation’s first naturalization bill. This identity, in turn, suggests that limits on congressional power in the naturalization arena can readily apply to immigration law.

Third, we apply these norms of uniformity, prospectivity, and transparency to a range of problems in modern immigration and naturalization law. For example, we argue against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to individuals who have already arrived in this country. We also argue against Congress’s practice of adopting private legislation. These claims, in turn, provide the foundation for a criticism of the so-called public rights doctrine and its use to justify restrictions on the judicial role.

©Virginia Law Review Association. All rights reserved.