Reading Room Document

Congressional Authority to Require the States to Lodge Federal Pre-Trial Detainees

Congress has power to provide for the housing of federal pre-trial detainees, whether by authorizing the construction of federal facilities or arranging with the states to use state facilities; however, it does not follow that Congress could require unwilling states to house federal prisoners, particularly where state reluctance stems from overcrowding in state and local detention facilities. The Tenth Amendment limits Congress' power to enact legislation which interferes with the traditional way in which local governments have arranged their affairs; moreover, principles of federalism limit Congress' power to require state officers to perform federal functions. Historically, Congress has been reluctant to require states to house federal prisoners, although it is not clear whether this reluctance has been motivated by a belief that Congress lacked power to do so by political considerations. A statutory scheme by which Congress would induce, rather than coerce, the states to house federal prisoners through exercise of its spending power is more likely to be held constitutional, although here too there are limits on Congress' power to impose coercive conditions on the states' receipt of federal funds. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/22646/download.

May 18, 1981