     Congressional Authority to Require the States to Lodge
                  Federal Pre-Trial Detainees

Congress has pow er to provide for the housing o f federal pre-trial detainees, whether by
 authorizing the construction o f federal facilities or arranging with the states to use state
  facilities; however, it does not follow that Congress could require unwilling states to
  house federal prisoners, particularly w here state reluctance stems from overcrowding in
 state and local detention facilities.
The Tenth Amendment limits Congress’ power to enact legislation w hich interferes with
  the traditional way in which local governm ents have arranged their affairs; moreover,
  principles of federalism limit Congress’ pow er to require state officers to perform
  federal functions.
Historically, Congress has been reluctant to require states to house federal prisoners,
  although it is not clear w hether this reluctance has been motivated by a belief that
  Congress lacked power to do so by political considerations.
A statutory scheme by which Congress would induce, rather than coerce, the states to
  house federal prisoners through exercise of its spending pow er is more likely to be held
 constitutional, although here too there are limits on Congress’ pow er to impose coer­
 cive conditions on the states’ receipt o f federal funds.

                                                                            May 18, 1981
                     MEMORANDUM OPINION FOR
                TH E ASSOCIATE ATTORNEY GENERAL

   This responds to your request for an opinion whether Congress
would have the authority under the Constitution to enact legislation
requiring state and local jail authorities to lodge federal pre-trial detain­
ees for a fee to be established either by regulation or agreement. We are
concerned that recent decisions of the U.S. Supreme Court make it
more likely than not that the courts would hold such legislation to be
too intrusive on the states’ sovereignty and therefore unconstitutional
under the Tenth Amendment. We suggest you consider devising a
legislative scheme which would induce, rather than coerce, the states to
offer their facilities to house federal pre-trial detainees.
   There is no question that Congress has the power under the Constitu­
tion to provide for the housing of federal pre-trial detainees—whether
by authorizing the construction of dentention facilities or arranging
with the states to use their facilities. E x parte Karstendick, 93 U.S. (3
Otto) 396, 400 (1876). Although this power is not expressly enumerated
in Article I, § 8 of the Constitution, the exercise of such power is
necessary and proper, under Article I, § 8, clause 18, to provide for an
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orderly federal system of criminal justice contemplated by several other
provisions of the Constitution. See, e.g., Art. II, § 3; Art. Ill, § 2, cl. 3;
Fifth Amendment; Sixth Amendment; Eighth Amendment. That power,
however, does not necessarily authorize Congress to require unwilling
states to provide facilities to house federal pre-trial detainees, because
the Supreme Court has recognized that Congress’ exercise of its consti­
tutional power is limited by the Tenth Amendment.
   The landmark case discussing the Tenth Amendment’s limitations on
Congress’ exercise of its constitutional powers is National League o f
Cities v. Usery, 426 U.S. 833 (1976). In National League o f Cities, the
Court addressed the question whether Congress, in exercising its power
under the Commerce Clause, could extend coverage of the Fair Labor
Standards Act to employees of the states and their political subdivi­
sions, thus requiring the states to adhere to minimum wage and maxi­
mum hour requirements previously applicable only to private employ­
ers. While recognizing that Congress has the power under the Com­
merce Clause to impose such restrictions on private employers, the
Court held that the Tenth Amendment limits the exercise of otherwise
plenary powers of Congress under the Commerce Clause when the
exercise of those powers would impermissibly intrude upon traditional
state governmental functions:
        It is one thing to recognize the authority of Congress to
        enact laws regulating individual businesses necessarily
        subject to the dual sovereignty of the government of the
        Nation and of the State in which they reside. It is quite
        another to uphold a similar exercise of congressional au­
        thority directed, not to private citizens, but to the States
        as States. We have repeatedly recognized that there are
        attributes of sovereignty attaching to every state govern­
        ment which may not be impaired by Congress, not be­
        cause Congress may lack an affirmative grant of legisla­
        tive authority to reach the matter, but because the Consti­
        tution prohibits it from exercising the authority in that
        manner.
Id. at 845.
  The Court concluded that, since application of the Fair Labor Stand­
ards Act to employees of states and their political subdivisions would
“significantly alter or displace the States’ abilities to structure em-
ployee-employer relationships in such areas as fire prevention, police
protection, sanitation, public health, and parks and recreation,” id. at
851—areas in which the states have traditionally provided services to
their citizens—Congress lacked authority to extend the coverage of the
Act to such employees. In a concurring opinion, Justice Blackmun,
who joined the Court’s opinion and whose vote was necessary to form
the Court majority, appeared to temper the Court’s opinion by reading
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it to permit federal intrusion on state sovereignty “where the federal
interest is demonstrably greater and where state facility compliance
with imposed federal standards would be essential.” Id. at 856. Four
Justices dissented from the Court’s decision.
   In our view, regardless of whether the language of the Court’s
opinion is taken literally or whether the “balancing approach” as articu­
lated by Justice Blackmun is applied, the proposed legislation for man­
datory incarceration of federal pre-trial detainees in local detention
facilities would present serious problems under the Tenth Amendment.
The opinion focuses on interference with local government policies and
traditional state governmental functions and the displacement of local
policy decisions. It is clear that the administration of a jail is a tradi­
tional state governmental function. Wentworth v. Solem, 548 F.2d 773
(8th Cir. 1977). Cf. Johnson v. Avery, 393 U.S. 483, 486 (1969) (“There
is no doubt that discipline and administration of state detention facilities
are state functions. They are subject to federal authority only where
paramount federal constitutional or statutory rights supervene.”).
Meachum v. Fano, A ll U.S. 215, 229 (1976) (“The federal courts do not
sit to supervise state prisons, the administration of which is of acute
interest to the states.”).
   In reaching our conclusion, we recognize that it could be argued that
N ational League o f Cities is not applicable to the proposal in question
here because the proposed legislation, assuming that it would not also
direct the states in the administration of their pre-trial detention facili­
ties, would not directly usurp the decisionmaking functions of the states
in the administration of their prison facilities. We are not convinced,
however, that legislation must directly supplant state decisionmaking to
run afoul of the principles of National League o f Cities. It is clear from
the opinion that the Court was concerned primarily with the effect of
legislation on “the traditional ways in which the local governments
have arranged their affairs.” 426 U.S. at 849. If, as noted in your
request, this legislation is necessary because state and local governments
are refusing to continue contracting to house federal pre-trial detainees
because of overcrowding, a requirement that they provide facilities,
regardless of the overcrowding of state and local facilities, may force
the states, even with some statutory fee provided, to reallocate their
facilities or at worst either to detain fewer persons or to construct more
detention facilities.1 The proposed legislation might then be regarded as
interfering substantially, though arguably less directly than the legisla­
tion invalidated in National League o f Cities, with the states’ administra­
tion of their prison facilities.

   1 T he states, with already crowded facilities, would be placed in a particularly difficult position by
the proposed legislation because, unless they acted to relieve any overcrowding caused by housing
federal pre-trial detainees, they could be found by a federal court to have denied the detainees due
process and ordered to eliminate the overcrowding. See Campbell v. Cauthron, 623 F.2d 503 (8th Cir.
1980). See also Bel/ v. Wolfish, 441 U.S. 520 (1979).

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   Moreover, under Justice Blackmun’s balancing test, the intrusion may
be less justifiable than the intrusion held to be impermissible in National
League o f Cities. The federal interest served by the proposed legislation
appears to be primarily that of saving the cost to the federal govern­
ment of constructing and administering pre-trial detention facilities for
its detainees. In cities where there are relatively few federal detainees,
it would obviously be more efficient to use existing state facilities than
to construct new federal facilities. That interest, however, does not
seem to be “demonstrably greater” than the state interest in avoiding
further overcrowding of its facilities so as to justfy the intrusion.
   There is also a line of cases decided prior to National League o f Cities
which suggests that this proposal could be considered as far more
intrusive than imposing wage and hour restrictions on state govern­
ments because it imposes an affirmative obligation on the states and
their subdivisions to perform a federal function. In Prigg v. Pennsylva­
nia, 41 U.S. (16 Pet.) 539, 615-16 (1842), and more clearly in Kentucky
v. Dennison, 65 U.S. (24 How.) 66, 107 (1860), the Supreme Court held
that, while Congress may delegate the performance of federal functions
to state officers, the principles of federalism deprive Congress of the
power to require state officers to perform such functions:
       Indeed such a power would place every State under the
       control and dominion of the General Government, even
       in the administration of its internal concerns and reserved
       rights. A nd we think it clear, that the Federal Government,
      under the Constitution, has no power to impose on a State
      officer, as such, any duty whatever, and compel him to
      perform it; for if it possessed this power, it might overload
       the officer with duties which would fill up all his time,
       and disable him from performing his obligations to the
       State, and might impose on him duties of a character
       incompatible with the rank and dignity to which he was
       elevated by the State.
65 U.S at 107-108 (emphasis added). While the Court has implicitly
recognized exceptions to this principle when a specific federal power in
the Constitution was clearly intended to intrude upon state sovereignty,
Fitzpatrick v. Bitzer, A ll U.S. 445, 456 (1976) (Fourteenth Amendment);
City o f Rome v. United States, 446 U.S. 156, 178-80 (1980) (Fifteenth
Amendment), the general principle has not been expressly disavowed




                                    145
by the Court 2 and continues to be regarded by commentators 3 and
lower courts as still viable.
   In a series of court of appeals decisions criticizing regulations pro­
mulgated by the Environmental Protection Agency (EPA) which
would have required states to enact statutes and to administer and
enforce EPA programs, three circuit courts criticized those regulations
as intruding upon state sovereignty in violation of the Tenth Amend­
ment. In District o f Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975),
the court emphasized that the EPA could not, consistent with the
Tenth Amendment, “commandeer the regulatory powers of the states,
along with their personnel and resources, for use in administering and
enforcing a federal regulatory program against the owners of motor
vehicles.” Id. at 992. See also Brown v. EPA, 521 F.2d 827, 841 (9th Cir.
1975) citing Dennison and Prigg; M aryland v. EPA, 530 F.2d 215 (4th
Cir. 1975). The Supreme Court granted certiorari to review these cases
but did not render an opinion on the merits because the Government in
its brief conceded the need to modify its regulations. EPA v. Brown, 431
U.S. 99 (1977).4
   Finally, there is some historical evidence, which is far from conclu­
sive, that the first and subsequent Congresses may have believed that
they were not empowered by the Constitution to require unwilling

    2 Recently, the Supreme Court, in discussing the legislative history of 42 U.S.C. § 1983 in MonelJ v.
New York City Dept, o f Social Services, 436 U.S. 658, 676 (1978), suggested in dictum that a line of
cases which included Dennison and Prigg had not survived as precedent. It is not clear what, if any,
w eight should be given to that dictum , however, because the Court cited E x parte Virginia, 100 U.S.
(10 O tto) 339, 347-48 (1879) as support—a case which held Dennison inapplicable because the
Fourteenth Amendment expressly gave Congress the authonty to interfere with and compel action by
state officers in matters covered by the Amendment.
    3 See Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev 489, 515-17 (1954)
(“T aney’s statement [in Dennison] can stand today, if w e except from it certain pnm ary duties of state
judges and occasional remedial duties of other state officers. Both exceptions, it will be observed,
involve enforcem ent through the orderly and ameliorating forms o f the judicial process. In any event,
experience with the exceptions does little to bring into question the principle of the rule.")
    4 Recently, a district court in Mississippi declared unconstitutional provisions in the Public Utility
Regulations Policies A ct of 1978 (PU RPA ), Pub. L. No. 95-617, 92 Stat. 3117, which required state
regulatory authorities to implement, when appropriate, certain federal standards against utilities.
Federal Energy Regulatory Commission v Mississippi, No. J. 79-212(c) (S.D. Miss. February 27, 1981).
F E R C and the D epartm ent of Energy filed a joint notice of appeal to the Supreme Court on March
 13, 1981. As pointed out in the Jurisdictional Statement filed by the Solicitor General in this case and
earlier by an opinion o f this Office (Memorandum from Deputy Assistant Attorney General Mary C.
Law ton to Assistant Attorney General John H. Shenefleld dated November 9, 1978), Titles I and III
o f PU R PA permit the states to choose whether to implement the federal standards and, therefore, do
not impermissibly intrude on the states’ sovereignty. Title II o f PURPA is closer to the proposed
legislation because it requires state regulatory authorities to implement rules promulgated by FER C,
albeit allow ing such authorities considerable discretion in deciding how to implement the rules. The
Solicitor General argues in his Jurisdictional Statement that, because discretion is permitted in the
implementation o f the rules, any intrusion on the states’ sovereignty is minimal and, in any event,
justified by the paramount federal interest in dealing with the energy crisis. Appellant’s Jurisdictional
Statement at 21-23, F E R C v. Mississippi, No. 80-1749 (October Term, 1980). Although PURPA is
different in several respects from the legislation proposed here, Supreme Court review of PURPA
may shed some light on the question o f what if any obligations to enforce federal law may be imposed
on the states. [N o t e : In FERC v. Mississippi, 456 U.S. 742 (1982), the Supreme Court held that Titles I
and III o f PU R PA w ere not unconstitutional on T enth Amendment grounds, finding that they “simply
condition continued state involvement in a pre-emptible area on the consideration of federal propos­
als.” 456 U.S. at 765. Ed.]

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states to house federal detainees.5 When the federal government was
founded, it presumably would have been prohibitively expensive for the
new government to provide its own prison facilities to house federal
prisoners scattered throughout the original 13 states. Congress dealt
with this problem not by requiring the states to make their facilities
available to the federal government, but by adopting a joint resolution
on September 23, 1789, recommending “to the legislatures of the several
States to pass laws, making it expressly the duty of the keepers of their
gaols, to receive and safe keep therein all prisoners committed under
the authority of the United States” and authorizing payment to the
states for the use of their jails. 1 Stat. 96-97 (1789). The joint resolution
passed both Houses of Congress without any recorded debate.6 Thus,
we do not know whether the decision by the first Congress to recom­
mend to the states that they permit the federal government to use their
prison facilities, rather than requiring them to provide the facilities, was
motivated by a belief that Congress lacked the power to require the
latter or that the former was merely politically more acceptable.
   Congress’ action in 1821, however, when some states apparently
refused to permit the federal government to continue to use their prison
facilities, lends some support to the inference that the early Congresses
believed that they lacked the power to require the states to provide
facilities. From a joint resolution adopted by Congress in 1821,7 it
appears that some states, having followed Congress’ recommendation in
1789 to permit the use of their prison facilities by the federal govern­
ment, subsequently decided to withdraw their permission. Congress
responded to that withdrawal, not by requiring the states to make their
facilities available to the federal government, but by authorizing the
marshal, in those states that had withdrawn their permission, to “hire a
convenient place to serve as a temporary jail, and to make the neces­
sary provision for the safe keeping of prisoners committed under the
authority of the United States, until permanent provision shall be made
by law for that purpose.” 3 Stat. 646-47 (1821). See also 4 Stat. 118
(1825) and 4 Stat. I l l (1835) (authorizing the courts to order execution

   5 If such a belief were expressed clearly, which il is not, it would be considered a contemporaneous
construction of the Constitution, followed since the founding of the government, and entitled to great
weight in determining the scope o f Congress’ power. Cf. E x parte Quirtn, 317 U S. 1, 41-42 (1942),
Williams v United States, 289 U S. 553, 573-74 (1933)
   6 1 Debates in Congress, 86, 938 (Gales & Seaton eds 1789).
   7 Resolved by the Senate and House o f Representatives o f the United States o f America, in Congress
assembled. That where any state or states, having complied with the recommendation of Congress, in
the resolution of the twenty-third day of September, one thousand seven hundred and eighty-nine,
shall have withdrawn, or shall hereafter withdraw, either in whole or in part, the use of their jails for
prisoners committed under the authority of the United States, the marshal in such state or states, under
the direction of the judge of the district, shall be, and hereby is, authorized and required to hire a
convenient place to serve as a temporary jail, and to make the necessary provision for the safe keeping
of prisoners committed under the authonty of the United States, until permanent provision shall be
made by law for that purpose; and the said marshal shall be allowed his reasonable expenses, incurred
for the above purposes, to be paid out of the Treasury of the United States. Act of March 3, 1821, 3
Stat. 646-47 (1821).

                                                  147
of prison sentences in state prisons where “the use of which shall be
allowed and authorized by the legislature of the state for such pur­
poses.”); 13 Stat. 74-75 (1864) (authorizing the Secretary of the Interior
to contract with state authorities for the use of prison facilities for
persons convicted of federal crimes in the territories); 13 Stat. 500
(1865) (authorizing courts to order execution of prison sentences longer
than 1 year in state prisons where use of the prison is authorized by the
state legislature). Again, there is nothing in the legislative history to
indicate that Congress believed that it lacked power to require the
recalcitrant states to make their facilities available to the federal gov­
ernment; Congress may have been merely reluctant to exercise this
power. Thus, we cannot conclude on the basis of this history that the
Tenth Amendment precludes such a requirement, but we believe it
provides some insight into the sensitive manner with which this issue
has been treated by Congress since the founding of our government.
   Therefore, while we cannot be certain that the proposed legislation
would be unconstitutional, we believe that it would raise a serious
question under the Tenth Amendment whether Congress, on enacting
such legislation, had impermissibly intruded upon the states’ sover­
eignty. We suggest that you consider, as an alternative, a statutory
scheme which would induce, rather than coerce, the states to cooperate
in making their detention facilities available to the federal government.
Congress, by invoking its power under the Spending Clause, could
condition the availability of some grant program to individual states on
the cooperation of the states in providing detention facilities for federal
pre-trial detainees. Such legislation should, however, be carefully for­
mulated because the Court has recently reaffirmed its warning that
“[t]here are limits on the power of Congress to impose conditions on
the States pursuant to its Spending Power.” Pennhurst State School and
H ospital v. Halderman, 451 U.S. 1, 17 n. 13 (1981).8 However, if the
legislation is not coercive and would contemplate that the states would
receive benefits reflecting the incremental costs (including costs attrib­
utable to administrative and capital costs) of housing the federal detain­
ees in state facilities, the burden and coercive effect on the states should
not be considered excessive and such legislation would probably be
upheld. I would imagine that there are already federal subsidies to state
prison facilities, and it might be feasible to condition receipt of a
portion of such subsidies on the willingness to provide facilities (for
compensation) for federal pre-trial detainees. If you would like to




  8 F or example, statutory inducements cannot be used as “ weapons of coercion, destroying or
impairing the autonomy of the states.” Steward Machine Co. v. Davis, 301 U.S. 548, 586 (1937)

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consider such an approach, we will be happy to assist further with the
formulation of such legislation.

                                         T h e o d o r e B. O lson
                                       Assistant Attorney General
                                        Office o f Legal Counsel




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