Circuit splits have the effect of treating people in America differently with regards to the law depending on where they live, due to differing interpretations of the same statute. Some of these differing interpretations involve what seems like major questions of rights that such as in these cases about warrentless seizures of a person based on suspicion of the person having committed a misdemeanor.

Would it pass constitutional muster for the U.S. code to enact de jure laws that have these de facto effects, i.e. a law that says in Texas police have this power and in Florida they do not, etc.?

If not, is there any legal scholarship arguing that whatever legal principle would prevent the law from being made intentionally should also preclude the de facto situation being allowed to stand rather than having some forcing mechanism for resolution, whether through congress or the Supreme court? I know this obviously isn't the case now as circuit splits do exist and have these effects, just wondering if anyone in the Academy is putting forth arguments against it.


2 Answers 2


(The original title of your question suggested you might think that federal circuit precedent binds state courts: it generally does not, even on matters of federal law.)

But regardless, Congress would not be able to legislatively lower the constitutional floor. If a certain police act is prohibited by the Constitution, Congress cannot legislatively allow that act, whether in a single state or uniformly across all states. That means that if the Fifth Circuit has decided that the use of some new investigatory tool is a search under the Fourth Amendment, no law that Congress passes could affect that holding.

When congress creates laws that result in different effects for different people (e.g. people in Texas vs. people in Florida, as in your hypothetical), the distinction must be rationally related to a legitimate government purpose. Many of the enumerated powers allow for local distinction, some prohibit it. Some examples where Congress has distinguished between states include: localized agricultural programs, time zones, voting rights protections, and various others listed in ohwilleke's review. Some distinctions between states could also intrude on principles of federalism and state sovereignty (e.g. the Supreme Court has said that the Voting Right Act does this).

Maybe I am unimaginative, but I cannot think of a legitimate federal government purpose that would call for the powers that police have against the people to vary from state to state. Any such variation would have to come from the states themselves: from their state constitutions, or legislative choices to provide heightened protections.

Discord between circuits is problematic (see a list of examples of existing splits), and this is why the Supreme Court of the United States will often hear an appeal where there is a circuit split on a question of constitutional rights.

  • I suppose my big headscratcher is how this doesn't get challenged under equal protection grounds (Someone getting detained in one jurisdiction where they wouldn't in another).
    – Alan
    Commented Feb 2, 2023 at 14:30
  • @Alan probably because the US is a federal system.
    – RonJohn
    Commented Feb 2, 2023 at 17:22
  • 1
    @RonJohn That would explain the state vs federal distinction, but not the federal vs federal (Immigration/etc.)
    – Alan
    Commented Feb 2, 2023 at 18:26
  • @Alan if a ruling by the 9th Circuit (the Left Coast) held for people in the 5th Circuit (God's Country), then the 9th Circuit court of appeals would have the same power as the Supreme Court. Nine separate conflicting courts, each with jurisdiction over the whole country would really be chaos.
    – RonJohn
    Commented Feb 2, 2023 at 19:04
  • @Alan as it is now, lawyers for an appellant in God's Country can mention Left Coast Appeals Court ruling, and hope they stick. If they don't, they appeal to the SCOTUS.
    – RonJohn
    Commented Feb 2, 2023 at 19:06

Generally speaking, Congress does enact uniform federal laws, and there may be some constitutional boundaries and limitations on enacting local laws (as noted below with respect to bankruptcy court costs). But there isn't a hard and fast rule permitting federal law to be different in different states or on some other geographic basis. The United States Congress has some authority to pass "local" laws.

For example, the extent to which mineral rights belong to the federal government or are reserved to private landowners differs in different parts of the United States. Similarly, the circumstances under which easements can arise over federal property are not uniform, and homesteading acts have always been limited to particular parts of the country.

The United States can and does enact different environmental laws governing oil extraction in the Gulf of Mexico than it does in Alaska. There are different federal air pollution laws relating to motor vehicle emissions that apply in California and some Northeastern U.S. states than in the rest of the country.

Federal alcohol regulation applies different labelling laws to whisky based upon whether or not a certain portion of the product is distilled in Kentucky, even if whisky distilled in, say, Ohio, is chemically indistinguishable. The constitutional amendment ending prohibition is an "anti-uniformity" statute and specifically provides that the states may regulate alcohol differently at the state level.

The United States can and does enact different regulations for national parks in Florida than it does in Wyoming.

Postal system regulations can and do single out Hawaii and Alaska for special treatment.

Federal law concerning Indian tribes is very piecemeal with different tribes and different reservations governing by different laws.

Eligibility for the joint state-federal Medicaid program differs with some states accepting Obamacare subsidies to expand eligibility, and other states declining to do so. States can differ in having or not having health insurance exchanges under the Affordable Care Act, and subsidies for non-employer health insurance under the Affordable Care Act likewise differ from state to state.

One of the paradoxical areas is bankruptcy law.

The Constitution states that federal bankruptcy laws must be "uniform" and in the area of the court costs charged to parties, a pilot project to have a different fee structure in different court districts was held to be unconstitutional on that ground.

Yet, the assets that someone filing for bankruptcy may retain free of creditor's claims is allowed to (at the election of each U.S. state) and in practice, almost always does, track the same exemptions from creditors that exist in that state outside of bankruptcy proceedings. So, for example, there are basically fifty different sets of rules among the fifty U.S. states regarding when home equity can be exempt from creditor's claims (subject to some limitations in certain cases that set a uniform cap on such protections, for example, for home equity that a debtor wants to shield from securities fraud claims).

There are also assimilative statutes that adopt by reference the criminal laws of a state where certain federal property is located as federal crimes. And, there are also laws that apply only in areas subject to U.S. jurisdiction which are outside any U.S. state.

There are a number of U.S. tax laws that apply only in specific geographic areas, such as special tax treatment for Puerto Rico, and Opportunity Zones. Similarly, there are differences in how certain income tax and estate tax provisions apply in community property states from how those provisions apply in separate property states.

The most famous example is probably the Voting Rights Act which for many decades applied more strict federal regulation of election administration on states with a history of discrimination in election laws than those that did not. Eventually, this provision was struck down by the U.S. Supreme Court. But the U.S. Supreme Court did not hold that the disparate treatment of states under the Voting Rights Act was initially illegal. Instead, it held that the basis for treating those states (and localities) differently had grown stale (in a controversial opinion) and no longer justified this treatment.

Would it pass constitutional muster for the U.S. code to enact de jure laws that have these de facto effects, i.e. a law that says in Texas police have this power and in Florida they do not, etc.?

I could imagine that a law justified by the enforcement clause of the 14th Amendment could be used in connection with Congressional findings in order to, for example, prohibit police in states with a history of discrimination against Hispanics or other populations with a high proportion of immigrants from requiring people to present ID in stops short of an arrest (so called Terry stops), while not imposing that requirement on states without a history of that kind of conduct, which would be upheld as constitutional.

  • So, rational basis review standards for such laws, do you think?
    – Alan
    Commented Feb 2, 2023 at 18:46
  • 1
    @Alan Something like that (maybe rational basis plus, but not full fledged intermediate scrutiny), but to be honest, I don't recall a case law discussing it in those terms. The most important case on point is Shelby County v. Holder, 570 U.S. 529 (2013). But I don't have time to review the details of its reasoning at the moment.
    – ohwilleke
    Commented Feb 2, 2023 at 20:27
  • No worries, the law is just one of many fields I take a taste of from afar in my role as a polymath. Perhaps in a year or two when start my doctoral research in curriculum & instruction I might have more salient need than curiosity.
    – Alan
    Commented Feb 3, 2023 at 2:23

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