Dual Sovereignty and Preventive Commandeering

Why the Federal Immunity Statute Cannot Preempt State Prosecutions

This note analyzes whether the federal immunity statute may forbid states from prosecuting state crimes when the violation of state law was discov-ered through federally immunized testimony. Early cases dealing with the immunity statute held that federal immunity could not bar subsequent state prosecutions, but during the Warren Court era, the Supreme Court changed course, holding that federal immunity does bar subsequent state prosecutions.In Printz v. United States, the Supreme Court held that commandeering a state’s executive branch violates the constitutional principle of dual sov-ereignty. This note applies the Printz rationale to the federal immunity statute, reasoning that a bar on state prosecutions based on federally immunized testimony would be a form of commandeering. It is preventive commandeering because the federal government prohibits state officials from enforcing state law.To remedy the problem of preventive commandeering, states should amend their immunity statutes to bar state prosecutions based on federal-ly immunized testimony. This solution applies the theory of cooperative federalism, illustrating that it is sometimes more efficient for states to work with the federal government in areas of concurrent jurisdiction.

The full text of this Note is available to download as a PDF.