Prosecutorial Limits on Overlapping Federal and State Jurisdiction

Abstract

Historically, debates over the wisdom of expanding the reach of federal power have reflected the tension between competing notions: the idea that responsibilities for the business of government can be allocated neatly into fixed federal and state spheres, and the idea that the federal government, including the federal courts, must have the flexibility to expand its reach to respond to changing national problems and concerns. In recent years, Congress has enacted several statutes expanding the criminal jurisdiction of the federal courts into areas previously the sole responsibility of the states. This article argues that three such expansions—the Violence Against Women Act, the Freedom of Access to Clinic Entrances Act, and the Child Support Recovery Act of 1992—fit within a traditional rationale for exercises of federal jurisdiction. In addition, this article suggests that, as a practical matter, these expansions do not signal an attempt to supplant state authority but, rather, are an effort to supplement state authority by invoking federal power and applying federal resources in strategic, limited ways. The wise allocation of federal resources in areas of overlapping state and federal jurisdiction depends on the selective exercise of federal prosecutorial discretion.