Summary: How Federalism Built the FBI, Sustained Local Police, and Left Out the States

George Floyd’s death at the hands of a police officer in May 2020 set off protests throughout the country, and we continue to reckon with a long history of police abuse and violence and the lack of accountability of responsible officers and police departments. Federalism is often blamed for this failure. Law enforcement has been a local matter since the colonial era and, still today, police departments remain largely resistant to federal oversight, especially on matters concerning racial justice. For its part, the U.S. Justice Department’s infrequent use of its statutory authority to investigate police agencies that engage in a “pattern or practice” of constitutional violations and of conditional grants to push police reform reveals a lack of political will to encroach on local domains.Yet, federalism doesn’t explain why the states themselves have not supervised the police more. While direct federal control of police officers would violate the constitutional system of dual sovereignty according to Printz v. United States, 2 states do have the power to regulate the police but, for the most part, have chosen not to. The limited, too often lacking, responses of governors to police shootings make this point all too clear. Moreover, doctrinal accounts of federalism that maintain clear boundaries between local and federal spheres do not explain a paradoxical development in American law enforcement over the twentieth century: the remarkable growth of the Federal Bureau of Investigation (FBI or Bureau3) amid the persistence of localism. This history is especially puzzling given that, during the Bureau’s first fifty years or so, from 1908 to 1960, it devoted a significant portion—in many years a lion’s share—of its caseload to investigating one particular crime: auto theft.4 What were the implications of the federal government’s sustained involvement in the pursuit of theft, a traditionally local matter?