Supreme Court of the United States

In Re: Pub.L. B.074 (The Police Reform Act of 2015)

Case No. 16–03, 100 M.S.Ct. 112

BSDDC, J. delivered the opinion of the Court, to which cmac__17, CincinnatusoftheWest, SancteAmbrosi, JJ., and the Chief Justice joined. taterdatuba, J. joins in part and dissents in part.

Before this Court is a question on the constitutionality of Public Law B.074, referred to as “The Police Reform Act of 2015” (hereinafter The Act). The Act includes several sections, and its overall goal is to “repair and enhance the relationship and views of the police officers and peacekeepers with the populace.” Petitioner has asked us to hold the law entirely or in part unconstitutional for violations of due process and for infringing on the sovereignty of the many states. See generally U.S. Const. amend. V, X, XIV.

The Act accomplishes its purpose by requiring police body cameras, the mandatory discharge of indicted officers, the creation of recommendations to decrease the rate of incidents with law enforcement officers, and coordinates the donation of retired military equipment. This it does unconstitutionally. Accordingly, we find for Petitioner.


Over a twenty year period, thousands of American citizens have died during incidents with law enforcement officers. Centers for Disease Control and Prevention, CDC WONDER Online Database, (last visited Feb. 24, 2016). These deaths have included justified and unjustified homicides alike. Id. In response to this unsettling state of affairs, Congress adopted The Act, which attempts to decrease the amount of homicides relating to police activities, and to repair the relationship between officers and those they serve.

The Act itself includes several sections. Section 1 creates a nonpartisan division within the Justice Department to set guidelines for law enforcement around the nation. Further, section 1(2) creates a group of “agents” to investigate cases of police misconduct. This regulatory body is responsible for the enforcement and regulation of the other sections of The Act.

Section 2 creates a nationwide system of police body cameras. The Act requires their use, and requires all departments to purchase these cameras. Exemptions are allowed by the regulatory body in section 1, but the states must adopt measures proposed by the regulatory body.

Section 3 provides for the regulation and disbursement of retired military equipment. Section 3(2)(4) notably allows for the possible donation of military aircraft. In contrast to this allowance, section 3(3) limits the use of special weapons attack teams (SWAT) to the most dire of circumstances, where a civilian life hang in the balance.

Section 4 regulates the prosecution of police misconduct. Section 4(2) requires that police officers under investigation by the division created in section 1 be suspended, and further that, if indicted, a police officer must be discharged. The remaining sections guide the release of information and the enactment of the law.

Petitioner has challenged the validity of The Act in part, or in whole, and guides us specifically to sections 1(1) and 4(2). Pet’r br. Having challenged the law in its entirety though, we examine the whole law for the challenges Petitioner has raised. Specifically, Petitioner challenges the law on two grounds. First comes a challenge against the law for the violation of the police officer’s due process rights. See generally, U.S. Const. V, XIV. Second, Petitioner argues that The Act violates the principles of federalism in the Tenth Amendment. Pet’r br. Respondent argues that the Commerce Power sustains The Act, and sends a return volley using our previous decisions as ammo. Resp’t Br.; Resp’t Reply Br.; see U.S. Const. art. I, sec. 8, cl. 3; see Garcia v. San Antonio Metro. Transit Authority, 469 US 528 (1985); see also Reno v. Condon, 528 U.S. 141 (2000). Because we decide the case on the lines of federalism, and therefore Congress did not have the power to promulgate The Act, we do not consider the due process arguments raised in this case.


The Tenth Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. Yet this text does not address what those powers are. Of course that which is not surrendered is retained, and in that sense the the Tenth Amendment “states but a truism[.]” United States v. Darby Lumber Co., 312 U.S. 100, 124 (1941). The Tenth Amendment thus only reflects a principle of latent federalism that was understood by the framers. We therefore turn to the historical understanding and practice enshrined in the structure of the Constitution. Printz v. United States, 521 U.S. 898 (1997).

We often look to the practices of the first few Congresses of the United States for guidance on the historical understanding of the Constitution. Because the founders participated in the early governments, those early governments acted in furtherance of the compact they created. As we have previously noted, the early Congresses did not enact statutes to bind the law enforcement officials of the states. But, they did regulate state judges. Because the power was exercised in one category but not the other, that the latter power does not exist. Id. at 907 (“These early laws establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions…”).

We have previously found that the duty of state officials under federal law is “nothing more (or less) … [than] not to obstruct the operation of federal law.” Id. at 913; see The Federalist No. 27. The state’s officials may not be conscripted into a federal regulatory scheme. Id. These considerations work in favor of Petitioner.

Yet, history alone will not resolve our inquiry. We turn now to the structure of our governing document. Principles of dual sovereignty and the immense protections and benefits of federalism support our conclusion that The Act treads too far into the realm reserved to the many states.

Respondent argues that the Commerce Power sustains The Act. It is certain, that in the aggregate, police activity affects interstate commerce. Yet, the commerce power cannot expand indefinitely. There must be a limit; otherwise, all of the previous realms governed by the several states, such as family law, come within the purview of the Congress. This would render the enumeration of any limited power surplusage, and we decline to read the Constitution as doing so. And allowing the expansion here, which directly regulates the officers of the many states in their conduct and fundamentally changes the employment relationship of law enforcement officers, would obliterate the last vestiges of the state’s sovereign power. In fact, there is no better example of a power reserved to the states than “the police power, [of] which the Founders denied the National Government and reposed in the States.” United States v. Morrison, 529 U.S. 598, 618 (2000) (holding that 42 U.S.C. §13981 was unconstitutional because the regulation of noneconomic, violent, and criminal conduct was the sole power of the states). The many states surrendered their autonomy to the National Government. But they retained substantial influence, reflecting the notion that the state’s have an inherent and dual sovereignty which cannot be extinguished nor erased. See U.S. Const. Art. I, sec. 3, cl. 1, Art. II, sec. 1, cl. 2, Art. V. They retained “a residuary and inviolable sovereignty.” The Federalist No. 39.

Federalism preserves a portion of state authority, and in this repose we find virtue. The many states may experiment with a variety of policies. This encourages innovation! It allows social and economic changes to be tested state by state without involving the entire nation. The latent principles of federalism are built into the very structure of the National Government because of these benefits. Respondent has argued that the supremacy of federal power overrides the state authority, and argues that Gibbons v. Ogden provides adequate precedent. Resp’t reply br.; 22 U.S. 1 (1824). That, of course, holds true. But it is based on the premise that the underlying act is within the power of Congress. Therefore, for The Act to be supreme, and above the state regulations of police officers, it must “be within the scope of constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution.” McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (emphasis added).

Yet, the most significant protection of federalism is the political safeguards built into the structure of our government. Resp’t br.; Garcia, 469 U.S. at 554. They are, in most cases, a result of process and not of result. Id. However, the powerful principles of federalism, reflected throughout our governing document, must have a fundamental core which cannot be disrupted. On those grounds we have rejected using the states’ legislatures to regulate, New York v. United States, 505 U.S. 144 (1992), and we have held that when the Federal Government attempts “to impress into its service — and at no cost to itself — the police officers of the 50 states,” it has gone too far. Printz, 521 U.S. at 899 (emphasis added).

Respondent has urged us to uphold this law on the principle espoused in Garcia, arguing that “the federal system itself, rather than any ‘discrete limitation’ on federal authority protected state sovereignty.” Resp’t Reply br. (citing Garcia, 469 U.S. at 553). As mentioned before, the political safeguards of federalism typically do result in the correct protection of the state interests, and we would, in those cases, defer to Congress. However, this is not one of those cases. “This Court has long recognized as fundamental the principle that the States maintain a great deal of sovereignty in our federal system.” In re: The Definition of Marriage Act of 2015, No. 100 M.S.Ct. 105 (2015).

There are three categories of Congressional regulation regarding federalism. Congress can regulate (1) private individual activity directly, see Darby, supra, (2) individuals and states alike, National League of Cities v. Usery, 426 U.S. 833 (1976), and (3) the states in their regulation of individuals. Printz, supra. The first category of cases concerns the extent of the enumerated powers generally when they do not affect the state specifically. We have generally upheld the second category of cases, while our decisions of Printz and New York, have rejected the federal exercise of power over state law enforcement officers and legislatures alike.


Turning to the case before us, we begin our analysis by examining what the law intends to accomplish. With its regulatory scheme ascertained we can find which of the three categories of federalism cases this one belongs in. We conclude that Section 2, 3(3), and 4(2) fall into the third category, and as such, are likely impermissible.

The overall purpose of The Act is to regulate all law enforcement officers and peacekeepers in their conduct relating to the citizens they encounter throughout the country. Different sections of the law fall within, and outside of, state power. Section 2, for example, mandates that all “[p] olice officers and peacekeepers will be required to … have a visual and audio recording device.” The plain import of this language is that it is a direct regulation on all state law enforcement officials. The purpose for the regulation is to change how they conduct themselves while dealing with people they encounter. This direct regulation of conduct towards the people they encounter is analogous to an attempts in Printz to regulate state law enforcement officials in their regulation of individuals when it came to firearm permits. Section 3(3) limits the use of SWAT teams to only certain circumstances. Again, directly regulating how law enforcement officials interact with the people of the states. Section 4(2) fundamentally alters the employment relationship of police officers with the state. It demands their discharge upon any indictment. This is in contrast to Garcia, where the Federal Government only sought to enforce labour standards, and did not attempt to tell the states who to hire and fire.

While Respondent argues that this regulatory scheme is very similar to the situation in Reno v. Condon, supra, we cannot agree. In Reno, at issue was the sale of personal identifying information, and as such it fell within the scope of commerce. Id. at 141. Instead, we find The Act to be more analogous to the action in Printz. There the Federal Government sought to conscript the state’s officers directly into a national regulatory scheme, not regulate the sale of information. That regulation was found to be outside the bounds of the Federal Government’s power. The underlying purpose of The Act is to change how police officers conduct themselves around the people they are pledged to protect. There is no other action which could alter how the states regulate their own citizens than the conscription of the state’s entire police force. More importantly than all of these considerations, it must be noted that our case would fit into no other category than the third. The Act does not attempt to regulate private individuals. The Act does not attempt to regulate both private and public individuals. Therefore, it can only belong to the third category of cases. This is further confirmed by the very concept of a police force, as they are the are solely a public entity. Accordingly, our case falls into the third category of cases mentioned above.

If the states did retain their — aptly named here — police powers, as we have previously held, then surely the states retained the power to regulate their own law enforcement officials. Certainly, Congress may pass federal criminal laws, and those laws must not be obstructed by the states. But that is all the police must do. Printz. Petitioner urges us to strike The Act down based on the text of the Tenth Amendment. Yet, that amendment is but a truism. The states retained a residual concept of sovereignty, and so we must consider whether or not that sovereignty protects the states here.

Respondent has urged us to allow the political safeguards of federalism alone to protect the interests of the states. Here — and especially for our purposes — where Congress has attempted to chip away at a core principle of federalism, the simple political safeguards of federalism have demonstrably failed. Allowing Congress’s restraint to act as the outermost border of federal power would render the border non-existent. It is true, that in most respects, Congress receives deference when determining the appropriate balance of federalism. But where history reflects, as it does here, that power in question is one of the state’s police powers, the core concept of federalism pushes back and rejects the federal law as inconsistent with the spirit of the Constitution. See generally Printz, supra. In fact, we have previously said, “in general, a federal statute or regulation that commands a State or officer of a State to do a certain thing in their official capacity is void.In re: The Definition of Marriage Act of 2015 (emphasis added).

Further, and especially in cases of law enforcement regulation, we find the virtue of federalism encourages this protection. Allowing the states to retain a core and inviolable power allows for experimentation. It allows for a more direct and less disenfranchising government, which is more apt to respond to its constituents’ needs. This Court appropriately recognizes the issue of police misconduct in this country. However, it is not the place of the Federal Government to step in and directly regulate the police forces to alleviate misconduct. It may enforce its standard of justice and prosecute when police misconduct manifests itself. It may not attempt to conscript the entirety of the nation’s police force.

Instead, we find this law incompatible with a core principle of latent federalism; we hold Congress may not directly conscript the law enforcement officers of the several states and regulate their actions directly. Congress may encourage the states to adopt these standards through federal incentives, it may not regulate police standards directly. We find sections 2, 3(3) and 4(2) to be unconstitutional.


Our final inquiry is whether we can sustain the remaining sections of the act without disrupting what Congress intended. We find, in the text of the act, no severability clause indicating that Congress’s intent was that the law stands and falls as a whole. This is not dispositive, but it weighs against severability.

Looking at Section 1, it creates a regulatory body to administer and investigate police standards. These standards would obviously include the regulations of section 2, 3(3) and 4(2), and as such it appears to be the enforcement mechanism of The Act. In fact, this conclusion is further supported by the utter lack of any other enforcement mechanism to bring about the stated regulations in Sections 2, 3(3), and 4(2). This would mean that Congress intended section 1 to be a method of executing the aforementioned unconstitutional provisions. The text of The Act supports this conclusion. Section 2(1)(1) allows exemptions by the regulatory body of section 1. In section 4(2) the body is the actor which triggers suspension, and it appears from the section, indictment and thus discharge. By removing the other sections, the purpose and intent of section 1 is thus demonstrably undermined, and therefore is not severable.

As section 3(1) and (2) both explicitly rely upon this regulatory body established in section 1 for their enforcement they also cannot stand. Section 4(1) speaks to an “independent committee,” but does not state under which authority this committee will act. Without any independent authority noted in the section other than the section 1 regulatory body, it follows that the committee was also dependent on section 1. Therefore, section 4(1) cannot stand.

Section 5 speaks to the release of information, requiring, “[u]pon the request of an individual unclassified documents must be made available.” This section is entirely vague. What constitutes a request? To whom must the request be made? What documents are included by this section — all documents held generally, or only specifically government documents? We must assume it refers to documents of the section 1 regulatory body and its investigations. Every other section depended on this body for some degree of enforcement, surely the same would hold true here, and as such it cannot stand. If, on the other hand, it does not depend on section 1, then it is entirely without meaning, and would be void and equally unenforceable. Section 6 speaks to enactment, and we do not need to consider it here.

In sum total, we find that the linchpin of the regulatory scheme was undermined by sections 2, 3(3), and 4(2), and as such the remaining legislation cannot stand. Congress intended the law as part of a holistic reform of law enforcement nationwide. The failure of the aforementioned sections, not to mention the lack of demonstrated severability, weighs towards total invalidation. As such, we find the entire law must fall necessarily.


Our holding today should not be read to reject previous decisions regarding federal power, but instead to merely reaffirm them. The Act hits the outermost bound of Congressional power, and attempts to conscript the law enforcement officers of the many states into its regulatory scheme. It gives neither choice nor compensation to the states for this encroachment. And so, it does this unconstitutionally. The Act cannot stand. We hold Public Law B.074, The Police Reform Act of 2015 unconstitutional entirely, and as it is repugnant to the Constitution it is void.

It is so ordered.

taterdatuba, J. dissenting in part.

One of the threads of thought we had to discuss in deciding this case was the idea of judicial surgery. What exactly does judicial surgery mean? It is the process by which the Court must parse out what it feels is constitutional and unconstitutional in a challenged law. That which passes constitutional muster cannot be struck down by this Court. When laws are stricken in their entirety it is due to the fact that the law was interdependent on the several sections contained within. This means that there may have been constitutional sections to a given law that were predicated upon unconstitutional thought processes and rules as set by the law it was contained. In this situation, it must be unfortunate but necessary that the Court strike down constitutional sections of laws with their unconstitutional foundations.

I have joined in the Court’s reasoning that there are unconstitutional sections to this law, however there are constitutional sections to this law that are not so entirely dependent on the unconstitutional sections that warrant striking this law in its entirety. This Court must have exercised their precise surgical hand and took the time to make that distinction of what was and was not constitutional.

I must also take a few moments now and make a brief statement about the due process we are given in the United States Constitution. Due process is one of the hallmarks of the history of judicial rights in Western Civilization. It is one of, if not the, most important judicial civil rights given to us by our mutual agreement under that noble contract that is the Constitution. I must reproach any Court that does not take its esteemed position of authority and trust placed by the people of these United States and use that authority to scold the legislative and executive branches when they are derelict in their duties to protect the judicial and civil rights of the people. This law passed a legislature and the executive’s desk with a provision abrogating the due process rights of police officers. If they had lost their positions as a result of conviction, meaning that due process took its due course of action, then it would have been fine, but the termination was due to being indicted, where due process has just begun. You may be thinking why I am taking the time to discuss this when I agreed with that section to be struck down. I am taking this time because the Court should have addressed the fact that a law was passed that attempted to deny the due process rights of uniformed officers of the law. When that occurs, it does not matter if we decide it is wrong on the lines of federalism, we must address due process violations at every opportunity. These arguments about federalism will mean nothing if we aren’t even going to address the fact that two branches of government decided to wipe its behind with the Constitution. That is how important due process rights are to the functions of the American judiciary; to the American system of government, both state and federal.

Digressing from that point, I now move to my dissention on the fact that Congress can mandate how state’s utilize Special Weapons and Tactics Teams (SWAT Teams) if those units utilize federal equipment and training. Since the federal equipment and training is funded by taxpayer dollars and by law of Congress, the federal system nor the rights of states are not endangered to tyranny if Congress dictates how states use federal equipment and training. I would argue that this would protect the rights of states to operate how they wish without assistance from the federal government. If their SWAT Teams can operate without federal equipment and training, then it is fine that they can operate in any manner they wish. But due to the fact that the federal government is also charged with securing the common defense, they can mandate when and how federal equipment and training is used. It is preposterous to argue otherwise as that would be kin to allowing my friends access to my vehicle, a very large all-terrain SUV, without restrictions on where and how they can drive it. If I allowed my friends free reign with an all-terrain SUV, they will be tempted to drive in dangerous manners in dangerous places. This is not making the federal government a nanny state, this is protecting the states from potential liability and unconstitutional behavior while protecting and serving the people of the various states from individual and departmental misconduct and innocent mistake. Since the SUV is mine and I paid for it with my salary, I get to dictate how and when it is used by others just as federal military equipment is paid for by the federal government from taxpayer dollars that were levied by the federal government. They can mandate its usage and thus the behavior of the people that use it. If a state is going to utilize federal equipment and training, then the federal government can dictate how it can and cannot be used. This Court speaks so much of federalism, but then you are wanting to take equipment from the federal government and let states and their officers operating under the auspices of that state free reign with that equipment. Federalism is a two-way street; it is not in place just to benefit the states. We must remember that the states have limitations too. It is a system of checks and balances on both the states and the federal government.

With all that being said, the federal government also has an interest, according to the Preamble of the Constitution, in providing for the common defense and the general welfare of its citizens. If the individual states and the officers operating under its auspices are derelict in those duties, then there is valid reason within the framework of the Constitution and the operating philosophy of the Social Contract for the federal government to provide that promise. I believe the Founders were not so afraid of tyranny and big bad central government that they decided to neuter it. They still gave it power because they knew the states could become just as tyrannical and derelict in its duties as any centralized government and that they must act as check and balance to the states.

The federal government can also create regulatory commissions to its heart’s desire just as long as its heart’s desire is not trampling the Constitution or using it as toilet paper. In respect to carrying out the constitutional mandates of the federal government, it should create regulatory bureaucracy where necessary. Bureaucracy exists as a necessity for the execution of the law and mandates of the federal government but it can become burdensome, so that is fact that must also remain in mind.

In conclusion, there is no reason that this law should have been struck down in its entirety. There is good reason to believe that there are constitutional sections to this law that can stand without the support of the unconstitutional sections of the law and it is the responsibility of this Court to make those precise decisions. We must also remain steadfast in our vigilant defense of the rights of the people and we must, in that defense, be always prepared to address and reproach those laws and decisions made that attempt to abdicate civil and judicial rights and liberties.

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