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Since the and , there has been widespread interest in the problems of racism in American policing.

Whether of police departments, there appears to be substantial appetite for change. Just past the first anniversary of George Floyd’s killing, .

But as a , I have seen how essential local and state reform efforts are, because the federal government has limited power to regulate policing.

With few notable exceptions, the Constitution state or local government agencies. In accordance with that underlies the organization of American government, expressly provided to it in the Constitution.

Dollars And Change

For example, to oversee the federal government, levy taxes and spend money, and declare war. Other powers not listed in the Constitution are “,” giving them broader responsibility for governance.

The , which has been passed by the U.S. House of Representatives and is under discussion in the Senate, offers the possibility of significant policing reforms. But for those looking to the federal government to solve what’s wrong with policing in America, the legislation can’t ensure that every police department will make meaningful changes.

That’s because the bill reflects the hard reality that over state and local police departments.

Although , the federal government’s ability to address it is limited. promises equal treatment of all racial groups by government agencies and officials – local, state and federal. in response to violations of the Equal Protection Clause, such as the Voting Rights Act of 1965.

But the Supreme Court has held that the equal protection guarantee bans only intentional race discrimination by governmental bodies and officials. Policies and practices that have a disproportionate effect on a racial group do not necessarily violate the Constitution. So the Supreme Court would likely conclude that the Constitution does not allow the federal government to bar state and local police policies and practices simply because they have a disproportionate racial impact.

Seeking Influence

That means that the federal government’s primary tool for influencing American policing is its spending power. Congress has wide latitude for policy changes at the state and local levels by attaching conditions to federal grants. For example, Congress .

Congress can make the adoption of certain policies and practices a condition for getting federal grants – . States and localities must remain free to decline federal funds. So, if a state or locality declines a federal grant, it doesn’t have to comply with the grant program’s conditions.

Within the limits that the Constitution sets, the George Floyd Justice in Policing Act of 2021 aims to assert some federal influence on local and state policing practices.

The bill’s most significant direct regulation of state and local police departments would be . Although federal courts have repeatedly concluded that , the bill would make the prohibition explicit and expand its definition.

The bill would also indirectly regulate state and local police departments by where a plaintiff alleges that a law enforcement officer violated their constitutional rights.

Under the qualified immunity doctrine, courts dismiss claims when there is no prior case with a highly similar set of facts where a government official’s conduct was ruled unconstitutional. Government officials, including police officers, therefore sometimes escape liability .

If qualified immunity is unavailable, police officers and departments will arguably be less likely to violate someone’s rights because they will expect to be liable for their misconduct.

Further, the bill would expand the U.S. Department of Justice’s , and would make it easier to prosecute police officers for federal civil rights violations.

Conditions On Grants

Most significantly, if enacted, the George Floyd Justice in Policing Act would attach stringent new conditions to two programs that together funnel hundreds of millions of dollars to local and state police departments every year, the and the .

To take just a few examples, both . to states and localities whose use-of-force policies bar the use of deadly force unless it is necessary.

to states and localities that ban the use of no-knock warrants in drug cases. Recipients of COPS grants would be required to certify that they will use at least 10% of their grants to support efforts to end racial and religious profiling.

These provisions divide activists who decry the current state of policing. Some , while .

If the George Floyd Justice in Policing Act is enacted, some of America’s would readily accept its conditions and the federal dollars they unlock. Others would likely sue, arguing that the federal government is attempting to coerce them into adopting policy reforms they do not need or want.

Speaker Nancy Pelosi has said the George Floyd Justice in Policing Act “.” But states and localities have to want to change and accept federal grants, with strings attached, for that vision to become reality.

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