In "Federal building codes Part III," an allusion was made to the problem of a federal and state armed robbery statute applicable to one set of facts.
The federal Hobbs Act is an armed robbery statute applicable to armed robberies affecting interstate commerce. It is simply a fact that all armed robberies affect interstate commerce. And it is simply a fact that all states have armed robbery statutes or rules.
So, if an armed robbery occurs, what determines if someone is prosecuted under state law or federal law?
This is a reasonable and significant question because there could be great deal of difference in the application of the two laws. For example, evidence admissible in federal court may be inadmissible in state court under the state court's interpretation of the state constitution. There may also be differences in sentencing, etc.
This is not about going soft on armed robbers; it's about equal protection: if two people commit the same offense, why are they treated differently?
The only thing we know about how the decision is made to federally prosecute an armed robber is what we see on Law And Order. Jack goes down to the US Attorney's Office and begs the US Attorney to let New York prosecute the case. The US Attorney has the final decision and there is no appeal.
But the defendant was not invited to this meeting where his life and liberty are being decided. And procedural due process requires that any person whose life, liberty, and property are being affected by government actions be given certain rights: notice, opportunity to be heard, representation by counsel, record of the proceedings, etc.
When the US Attorney decides to prosecute, what is he or she really deciding? He or she is deciding to preempt or nullify state law in this particular case. That is, according to the Supremacy Clause, if the federal armed robbery law is a constitutional exercise of the commerce clause, conflicting state laws are preempted. How can any law be more conflicting than one which is applicable to the very same set of facts? If the state armed robbery laws are preempted, how is it that the states are still prosecuting people for committing armed robberies affecting interstate commerce under state law? Under what law are the states prosecuting? The preempted statute?
The clear statement doctrine cited in "Federal building codes Part III" says that congress may alter (preempt) the historical relationship between the states and the central government by clearly and unambiguously stating that as its purpose. With respect to the federal armed robbery statute, the Hobbs Act, congress has not expressed any intent with respect to the state armed robbery law.
The only way the current state of affairs can be interpreted is that congress has delegated to an executive officer, the US Attorney, the power to express its intent on a case-by-case basis. It is obvious that the expression of legislative intent is a purely legislative function.
Because preempting state armed robbery laws changes the historical relationship between the states and central government, it is not the type that can be delegated to an executive officer. But even if it could be delegated to an executive officer, it must be delegated with standards for its exercise. But even if it was delegated with standards, it must be exercised in a forum and manner according the person subject to it due process.
Suppose there are defendants A and B. Both have robbed the same store for the same amount of money. Suppose the US Attorney chooses to prosecute B but leaves A to be prosecuted by the state. Further suppose B is a member of a minority group. At what point and where would B challenge the federal prosecution of being discriminatory?
When charged with discrimination, the US Attorney can simply point out that the robbery affected interstate commerce and the US Attorney can prosecute under the Hobbs Act. But that's true of every armed robbery and the US Attorney does not prosecute every armed robbery. If all armed robberies are prosecutable under the Hobbs Act, how is the selection made?
A charge of discrimination would highlight the fact that there is no record of the reasons for the US Attorney's decision. Some might say that such blatant discrimination could not possibly happen. But isn't that prejudicial as well? That is, if there is no evidence one way or the other, how can one conclude there is no discrimination? In short, if I had a client subjected to selective federal prosecution, you can believe I would be making these allegations because there is no evidence that they cannot be true. What are we supposed to rely on, the fact that US Attorney so-and-so is a good person and wouldn't do that?
(For those contending that it's prosecutorial discretion, that's another subject for another day.)
The problem as I see it involves the rights of state citizenship. Prior to the 14th Amendment, there was no national definition of state or US citizenship. Citizenship was defined by legislatures. If only citizens had constitutional rights and only legislatures could say who was a citizen, legislatures could say who did and did not have rights. In other words, even slave states could honestly claim that there was no discrimination of their citizens.
The purpose of the 14th Amendment was to put an end to the citizenship shell game:
Senator Howard, who sponsored the Amendment in the Senate, thus explained the purpose of the clause:
"It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. . . . We desired to put this question of citizenship and the rights of citizens . . . under the civil rights bill beyond the legislative power . . . ." Cong. Globe, 39th Cong., 1st Sess., 2890, 2896 (1866).
AFROYIM v. RUSK, 387 U.S. 253 (1967)
Another important provision was the requirement that states treat everyone within their jurisdiction as a state citizen. It was important because states might be tempted to discriminate against people within their jurisdiction because he or she was not a citizen of that state.
So after the 14th Amendment, every person had rights under the federal constitution as a US citizen and rights under the state constitution in the state where they were whether or not they were a citizen.
Consider prosecution under the Hobbs Act in light of the rights of state citizenship. Suppose under the state supreme court's interpretation of the state constitution certain evidence of the armed robbery is inadmissible. In a state prosecution for armed robbery, that defendant would have the right not to have such evidence admitted against him. If it were, that defendant would be denied equal protection of the law under the 14th Amendment – the decision to admit it would necessarily be arbitrary.
However, if that defendant is one of the select few the US Attorney chooses to prosecute under federal law, he apparently does not have the right not to have that evidence admitted against him because no such right is recognized under federal law. What happened to it? If any US Attorney is ever called on to explain what happened to that right under the state constitution accorded to almost all armed robbery defendants, the only possible answer is that the federal law preempt state law.
Is this not a repeat of what was happening before the 14th Amendment only worse? Then, legislatures were defining who was or was not a citizen; now we have a single person, the US Attorney, defining citizenship and who is or is not entitled to rights of citizenship.
Moreover, how is the US Attorney's decision not a redefinition of state citizenship? The impetus behind the 14th Amendment was to forever put the question of citizenship and the rights of citizenship forever beyond the reach of the legislature. If the federal legislature cannot redefine state citizenship and the rights of state citizenship, how can it delegate that authority to a federal executive officer?
I am not saying that under the current interpretation of the commerce clause, the federal legislature cannot pass the Hobbs Act. I am saying that if they pass something like the Hobbs Act state law has to be preempted in all cases. Federal authorities have to investigate and prosecute every single armed robbery case. To do otherwise, as we do now, necessarily gives the US Attorney the arbitrary power to deny equal protection to those he chooses to prosecute.
Do you know how the federal authorities investigate cases now? They wait for the local authorities to spend their time and money to do all the legwork and then "adopt" the case for federal prosecution. (As far as I have found, this concept of "adoption" is totally made-up.)