A executive order mandating the nationwide abolition of cash bail would present a stark constitutional challenge to state and local governments. By compelling local courts and sheriffs to administer a federalized standard for pre-trial detention, such an order would trample upon fundamental principles of federalism and is, therefore, an unconstitutional exercise of federal power. Justice Antonin Scalia’s jurisprudence on the subject is clear: such federal intrusions are “fundamentally incompatible with our constitutional system of dual sovereignty.”
I. The Constitutional Framework of Dual Sovereignty
The Tenth Amendment reserves to the states all powers not delegated to the federal government. From this principle of dual sovereignty flows the anti-commandeering doctrine, which strictly prohibits the federal government from forcing states to enact or administer federal regulatory programs. This is no mere procedural nicety; it is a core structural protection of American liberty.
Justice Scalia understood this separation as essential to political accountability. Forcing state officials to carry out federal policy, he reasoned, blurs the lines of responsibility, leaving citizens unable to determine which government—state or federal—to hold accountable. This insulates federal officials from the political consequences of their own decisions. In his majority opinion in Printz v. United States, Scalia warned this would allow the federal government to “take credit for ‘solving’ problems without having to ask their constituents to pay for the solutions.” The structure itself is the protection; it is the “very principle of separate state sovereignty that such a law offends.”
II. The Scalia Doctrine in Printz v. United States
While the modern anti-commandeering doctrine was born in New York v. United States (1992), Justice Scalia’s majority opinion in Printz v. United States (1997) provides its most forceful and relevant application. There, the Supreme Court struck down provisions of the Brady Act that required local law enforcement to conduct federal background checks. Scalia’s reasoning was unequivocal.
Congress, he wrote, cannot “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” He then extended this logic from state legislatures to the executive officers of local government, stating, “The Federal Government may not compel the States to enact or administer a federal regulatory program, and… it is no more compatible with the independence and autonomy of the States to commandeer their officers.” This core reasoning was recently reaffirmed in Murphy v. NCAA (2018) and likewise animated the successful judicial resistance to federal attempts to coerce “sanctuary jurisdictions.”
III. The Unconstitutionality of a Federal Bail Mandate
A federal executive order on cash bail is a textbook example of the constitutional violation Justice Scalia dismantled in Printz. The administration of criminal justice—and particularly the function of pre-trial detention—is a quintessential attribute of state sovereignty. A federal directive that impresses local judges, court clerks, and sheriffs into service to administer a federal bail policy is constitutionally dead on arrival.
Applying Scalia’s logic, such a mandate would force local officials to implement a potentially controversial and expensive federal program at no cost to the federal treasury. This is precisely the kind of conscription the Constitution forbids. As Justice Scalia wrote, the federal government cannot “impress into its service—and at no cost to itself—the police officers of the 50 States.” By necessary extension, it cannot impress the judicial and ministerial officers of our counties and municipalities.
Local governments, therefore, would be under no constitutional obligation to comply. Such an order would face immediate and successful legal challenges on Tenth Amendment grounds. To quote Justice Scalia a final time, “It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect.”n
