The founders’ allocation
In the federalism the founders envisioned, Bob Zadek says, the police power—which he calls a term of art—rests with the states and their political subdivisions: cities, counties and townships. At the federal level, he says, none of those powers would exist except for three original federal crimes: treason, counterfeiting and piracy. The result was almost no federal criminal law and no federal police force. Zadek frames criminal law as special because violating it means being locked up, which he calls the denial of the most fundamental of fundamental rights, liberty. He argues it is unjust for Americans to be denied their liberty unless they know they are breaking a law and are doing what everyone acknowledges to be a bad act. “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015)
Brian Walsh agrees that most power to enforce criminal laws and punish inherently wrongful conduct was intended to reside in the states, listing murder, rape, robbery, assault, battery, arson and kidnapping as things everyone knows are fundamentally and inherently wrongful. He allows an exception where someone takes another across state lines for kidnapping, or similar cases where there is a federal interest or, as lawyers say, a federal nexus. Zadek says he is not willing to concede that point and proposes debating it another day. Walsh adds that criminal law is different from every other species of law because it is the greatest power government routinely uses against its own people, and because of the stigma of being deemed a felon, of losing personal liberty, and in extreme cases and in some states, the death penalty. He says it should be used in a very narrow set of cases, primarily for inherently wrongful conduct—things no one has to be instructed are wrongful. “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015)
Fear as a tool and the ratchet
Elizabeth Nolan Brown tells Zadek there is zero evidence for the image of sex trafficking drawn from the movie Taken—women handcuffed in shipping containers, or, as Trump had recently been saying, duct-taped and shipped in mass across borders. She says even people at the State Department have said that is not how it is happening, and that their actual reports contain no evidence for it. She cites Operation Cross Country, an annual FBI sweep joined by Homeland Security in which hundreds of federal agents and police take part, and says they find about three people to arrest on Mann Act charges, which she describes as just crossing state lines again. Violence does occur in this sphere, she says, but it looks more like domestic violence, or like foster care kids who run away and get caught up in the wrong group because they need to get by on the streets—ordinary problems for which an existing criminal law structure already exists. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Brown compares the panic to the 1990s fear about preschools abusing children and satanic lessons, which she says never existed, and to terrorism, where one security failure at the World Trade Center produced a trillion-dollar infrastructure and profoundly altered everyone’s life—so that the police power is more involved in everyday life every time you fly. She calls fear an incredibly potent tool government can use to acquire power, and asks whether anyone has ever said of an extraordinary regulation that the problem went away and the statute should be repealed. It is a ratchet, she says: more federal law, no more problem. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Brown traces the history: the first federal anti-sex-trafficking law passed in 2000, every state has since passed its own, and the federal law has been reauthorized every few years. Most of the conduct was already criminalized under federal law—forcing someone into prostitution was already a crime—but when officials could not find the people they said they needed to find, they expanded what the terms meant. Advertising now counts as sex trafficking, and purchasing sex from someone counts, with no knowledge of the person’s age expressly not a defense: even with a fake ID suggesting the person is 18, a buyer could be charged as a sex trafficker even where the cops freely admit there was no way to have known. She says each reauthorization bill, often around 50 pages, carries civil liberties violations that nobody notices, while politicians get to say they are doing something about trafficking. Elizabeth Nolan Brown on the War on Sex Workers (2019)
Pretrial detention as an exercise of police power
Rachel Barkow describes a system in which almost half a million people are detained for no good reason, producing negative public safety effects, tearing lives apart, falling disproportionately on the poor and on people of color, and costing a fortune. The political environment, she says, makes no one want to be responsible for the one person who commits a violent crime while released pre-trial, so everyone is detained out of fear of that one. Zadek stresses that the alleged perpetrator is, in the eyes of the law, as innocent as everyone listening—suspected, not convicted—and calls it heinous to deprive someone of liberty on suspicion, something we should all be ashamed of. rachel_barkow_on_fixing_the_fundamentals_of_crimi
Barkow calls the movement on cash bail the good news, and the solutions sometimes the bad news. California, she says, is getting rid of cash bail while keeping a detention model based instead on a risk assessment tool—an algorithm to predict dangerousness—and she warns such tools are controversial because they must be designed well and sometimes are quite flawed, and because they may target any possible offending rather than the violence the public actually fears. She points to New Jersey, which eliminated cash bail and used a narrowly defined, validated instrument, resulting in an incredible reduction in the number of people detained pre-trial without an increase in crime, saving the state money and giving people the liberty they deserve until conviction. She says the presumption should be release, with the government bearing the burden. rachel_barkow_on_fixing_the_fundamentals_of_crimi
Asked by Zadek on what constitutional authority government may lock up someone merely believed to have committed a crime—or, he asks, someone who might offend in the future, invoking Minority Report—Barkow answers that it is part of the police powers, because the Supreme Court has told us it is not deemed punishment but the state’s exercise of its police powers to prevent harm, done in a regulatory, preventive way. She notes that civil commitment already allows detention of someone shown to be a danger to themselves or others, with a high burden on the government, and that such a mechanism can make sense for people in mental health crises if the hurdle is serious and the use limited. Pre-trial detention, she says, is nothing like that: the federal system has no cash bail but carries a presumption of dangerousness for drug traffickers, so that roughly 75 to 77 percent of people in federal court are detained pre-trial. She adds that risk tools can become self-fulfilling for people in heavily policed neighborhoods, where repeated stops for trespass or other reasons make a person high risk even though he is not a danger to anyone. rachel_barkow_on_fixing_the_fundamentals_of_crimi
Federal police power in the field
Zadek tells Pat Eddington that CBP stops 100 miles from the border would violate the First and Fourth Amendments if conducted by a police force, and that they are performed under the protective umbrella of an ill-advised Supreme Court decision Eddington had explained. He describes this as the nose getting under the tent, with a federal government spending its time 24/7, 365 looking for ways to expand federal power in contravention of the Bill of Rights. He calls the phenomenon mission creep—almost too modest a term—and asks where the country stands in the arc of federal power’s growth, noting that police power is probably the area where government and citizens interact most frequently, witness Portland. The “Ratchet Effect” in Real Time (2020)
The episode’s summary describes Zadek and Eddington discussing the deployment of federal agents in Portland as a test case for expanded federal police power, along with the historical erosion of local criminal law, the mission creep of the Department of Homeland Security, and the 100-mile border zone granting federal agents broad search and seizure powers over a majority of the U.S. population. The “Ratchet Effect” in Real Time (2020)
On the pandemic, Zadek observes that no one has raised a structural complaint about Washington being unable to enforce national stay-at-home laws, and that people have been willing to accept the neutering of federal power over the virus, content to leave it to their governors. Frank Buckley offers a cynical explanation: those who ordinarily want more federal power realize that today it would mean more power in President Trump, which they do not like. He calls the situation a great argument for federalism—states initially going their own way on stay-at-home orders and now experimenting with relaxing them—and notes extremes between Michigan, which he calls very repressive, and Florida, much less so. Did California Just Declare Itself a Nation-State? (2020)
Across episodes: the same question, differently argued
The same underlying question—whether the power to police belongs to the states or to Washington—runs through these episodes, but the treatment shifts with the subject. In 2015 Brian Walsh and Zadek argue the founders’ allocation as a matter of criminal law and inherent wrongfulness; in 2019 Elizabeth Nolan Brown traces how federal sex-trafficking statutes ratcheted outward from a 2000 law; later in 2019 Rachel Barkow supplies the doctrinal answer that pretrial detention rests on the police powers because it is deemed regulatory rather than punitive; and in 2020 Pat Eddington and Zadek examine federal agents in Portland and the 100-mile border zone, while Frank Buckley frames the pandemic as an argument for federalism. The excerpts show no single development so much as the same allocation argued from different directions.
What the sources do not cover
The excerpts do not state the holding or name of the Supreme Court decision Zadek invokes for the border-zone stops, nor the specific statutes or bills behind the sex-trafficking reauthorizations. They do not give the legal citations for the federal bail provisions Barkow describes, nor the outcome of the Portland deployment. Several excerpts break off mid-sentence or mid-exchange, and nothing here resolves the debate Zadek proposes to postpone with Walsh over the federal nexus.