Nadia Banteka (Florida State University College of Law) has posted Cross-Sovereign Policing and the Constitutional Crisis of Accountability on SSRN. Here is the abstract:
A quiet transformation in American policing has produced a constitutional rupture that has escaped judicial recognition and democratic control. Through federal deputization and joint task forces, police officers wield overlapping federal and state authority under broad delegations often operationalized through informal executive agreements with limited public oversight. These arrangements empower local officers to enforce federal priorities and place local personnel and operations under federal supervision without clear lines of public attribution and accountability. A deputized city officer may participate in a federally directed raid yet be insulated from constitutional tort liability, criminal prosecution, civilian oversight, and departmental discipline. Conversely, a federal agent embedded in a local police department may carry out arrests using city credentials and infrastructure yet remain beyond the reach of state law and municipal accountability. This enforcement regime, which this Article terms “cross-sovereign policing,” has emerged as a persistent lapse in the law’s remedial and oversight frameworks.
This Article provides a comprehensive account of cross-sovereign policing, showing how this trend has unraveled the doctrinal, institutional, and democratic foundations of public control over government-sanctioned force. It demonstrates how cross-sovereign policing can fracture attribution, foreclose legal remedies, and displace democratic governance. This intervention unfolds on three levels: conceptual, doctrinal, and institutional. Conceptually, the Article shows how cross-sovereign policing destabilizes attribution, eroding crucial guardrails that make improper exercises of public authority visible and actionable. Too often, officers act under overlapping authority with no sovereign held to account. This result subverts federalism’s “double security” function and can turn a system meant to restrain power into one that shields this authority from meaningful oversight. Doctrinally, this collapse undermines the civil remedies and state criminal-enforcement tools meant to check unlawful coercion. Courts have denied relief under § 1983, the primary civil remedy for constitutional violations by state officials, by concluding that deputized officers act under federal law. Courts have rejected Bivens claims in these settings as a new context outside the shrinking scope of the implied federal cause of action. And Supremacy Clause immunity, originally a shield for federal officers against state interference, has been invoked and applied in cross-sovereign contexts to displace state prosecutions based on asserted federal authority. Institutionally, cross-sovereign partnerships can circumvent internal and civilian oversight by displacing or narrowing the application of local legal constraints on police conduct.
In response to these shortcomings, this Article advances the “accountability-federalism framework” to reconstruct police accountability across sovereign lines. Doctrinally, it advances a functional attribution test for § 1983; a new federal cause of action for constitutional violations committed under color of federal law; and a historically grounded narrowing of Supremacy Clause immunity. Institutionally, it recommends fiduciary disclosure duties, public registries of deputized officers, conditional-cooperation statutes, interstate compacts, and state constitutional-tort regimes. Together, these reforms seek to rebuild the constitutional and legislative architecture necessary to restore legal and democratic responsibility for cross-sovereign policing.
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