In early summer, California Governor Jerry Brown and state corrections chief Jeffrey Beard were in great danger of being held in contempt by three federal judges for willful defiance of a court order requiring the administration to meet a Dec. 31 deadline for reducing the prison population in California. Brown had previously asked the federal government to back off on federal mandated prison requirements, “We can handle our own prisons,” he said.
Can he constitutionally say no to the federal government?
Yes, and he should.
Besides the obvious, that Californians do not want their convicts returned to society too easily, voiding the acts of juries and judges after they spent thousands of hours deciding what is just with respect to their crimes and their danger to society, federal enforcement of such is unconstitutional. The Constitution gives the federal government only 17 grants of power, listed in Article I, Section 8, and managing federal prisons is not one of them. Nor has that power been added to the Constitution by way of amendment. In fact, the Constitution names only four crimes that Congress has the power to penalize: counterfeiting (Article I, Section 8, Clause 6), piracy on the high seas, offenses against the law of nations (Art. I, Sec. 8, Cla. 10), and treason (Art. III, Sec. 3, Cla. 2). Outside these four crime areas there can be no federal law or crime without a new amendment. All other areas are entirely under state jurisdiction as per Amendment 10.
If the governor wished to follow the Constitution as designed, he could designate one or more facilities as being federal, move all prisoners that had committed crimes in the above four areas to that facility and be fully compliant with federal law. With respect to the other prisoners, he might notify the federal government again that “We can handle our own prisons” and that the federal government has exceeded its Constitution jurisdiction. This is a state function per the Tenth Amendment. He should publicize his constitutional arguments with his sister states and, if possible, enlist similar action on their parts. Some of us would love to assist a Democratic governor in leading the charge back to the Constitution.Details