Concept

The Source-of-Power Test

Dual sovereignty

The Source-of-Power Test

Everything taught so far rests on one premise: an offence is the breach of a particular sovereign's law, so a second prosecution is for the same offence only if it enforces the same sovereign's law. That premise leaves a practical question for any new pair of prosecutors, which is how a court decides whether they represent one sovereign or two. In Heath v. Alabama the Court called this the crucial determination in applying the dual sovereignty doctrine, and it said the answer turns on whether the two entities draw their authority to punish the offender from distinct sources of power.¹ That inquiry is the source-of-power test. The rest of this chapter applies it, first to two states and then to tribes, municipalities, and territories, so it is worth fixing exactly what it asks.

The test looks for the ultimate source of the authority behind each prosecution. An entity that punishes under power another sovereign delegated to it is exercising that other sovereign's power, so its prosecution is in law the delegator's prosecution carried out by different officials. An entity that punishes under original sovereignty, meaning power that belongs to it in its own right, is enforcing its own law and no one else's. As Heath puts it, the Court has uniformly held that the states are separate sovereigns with respect to the federal government because each state's power to prosecute is derived from its own "inherent sovereignty," and not from the federal government.² The consequence was stated most directly in Lanza: "Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other."³ The formulation of the inquiry comes from United States v. Wheeler, which held that the sovereignty of two prosecuting entities is determined by "the ultimate source of the power under which the respective prosecutions were undertaken."⁴ The facts of Wheeler belong with the tribal cases below. For now, the relevant point is that Wheeler refused to confine separate sovereigns to the federal government and the states, and Heath treated that refusal as confirming its own analysis.⁵

The two parts of the test, looking to the source of power and treating a delegate as part of its delegator, each have their own reason. The first follows from what the clause protects. The clause bars a second jeopardy for the same offence, and an offence is a violation of one sovereign's law, so the only fact that can matter is whose law each prosecution enforces. Whose law it is depends on whose power made it law, which is the same as asking where the prosecuting entity's authority comes from. The second part runs on incentive. If a sovereign could escape the clause by prosecuting a defendant through one agency it created and then through another, it could retry anyone it chose simply by dividing its enforcement machinery, so the rule treats delegate and delegator as one sovereign and removes that option at the source. The test also has a practical advantage over its rivals. The source of a government's power is fixed by how that government is constituted, through constitutions, treaties, and statutes, before any crime occurs. A comparison of the interests behind two overlapping statutes would force a court to characterize the purpose of each law in every case. Heath declined to add such an interest inquiry on top of the source question, a refusal taught in the section on that case below.

The claim that the states hold original rather than delegated power finds support in the structure of the Constitution. In Printz v. United States the Court observed that the Constitution established a system of "dual sovereignty" in which the states, although they surrendered many powers to the new federal government, retained "a residuary and inviolable sovereignty."⁶ Printz is a federalism decision about whether Congress may command state officials to administer a federal program. It is not a double jeopardy case, and it is cited here only for that structural premise. The premise matters because a sovereignty the states retained is one they did not receive from Congress, which is exactly what the source-of-power test requires. The same opinion describes a design in which the state and federal governments exercise concurrent authority over the people, and that concurrence explains why each government can punish the same act under its own law.⁷ Gregory v. Ashcroft, another federalism decision, repeats that under the federal system the states possess sovereignty concurrent with that of the federal government.⁸ Heath carries the point from the state-federal pair to the state-state pair: the states' powers to prosecute derive from separate and independent sources of authority that belonged to them before admission to the Union and that the Tenth Amendment preserved.⁹

The pole where the test finds two sovereigns is Heath itself. The defendant's crime was a murder committed in Georgia during a kidnapping that began in Alabama, and both states prosecuted.¹⁰ The Court held that two different states are separate sovereigns and may successively prosecute the same conduct under their separate criminal laws.¹¹ Neither state's power to prosecute flows from the other, so the states are no less sovereign with respect to each other than they are with respect to the federal government.¹² The facts of the case and the argument the Court rejected are taken up in the section on Heath that follows.

The opposite pole arises when one prosecutor's power can be traced to the other's.

Hypothetical Illustration

A state statute creates a regional transit authority and empowers the authority's own prosecutor to enforce fare rules in a special tribunal. The authority convicts a rider of fare evasion. The state attorney general then charges the same rider with theft of services for the same ride, under a statute whose elements match the fare rule's elements. The authority prosecutes only because the state gave it that power, so its prosecution was the state's own sovereignty at work through an agency, and the second charge puts the same sovereign's law in play twice. The clause bars it. Change one fact, so that a neighboring state whose own criminal law reaches the same ride brings the second charge, and the answer reverses, because that state's power comes from its own sovereignty and not from the first state's.

Nothing about the conduct or the charges separates the two outcomes, and the only variable that moved is whether the second prosecutor's power shares a source with the first's. The decided cases that place an entity on the delegated side of the line include a city's prosecution under its ordinances and a territory's prosecution, both taken up later in this chapter.¹³ A frequent error on this issue is to argue that two governments are separate sovereigns because their interests differ, or that they are one sovereign because their statutes overlap. The test asks where each government's power to punish comes from. Two states may punish identical conduct for identical reasons and remain separate sovereigns, and an agency may pursue a purpose quite unlike its creator's and remain part of its creator's sovereignty.¹⁴

Exam Analysis Steps

Because the inquiry is structural, it can be run as a short sequence on any pair of prosecuting entities. The steps are these:

Identify the two entities that prosecuted, or would prosecute, the same conduct, and the body of law each one enforces.
Trace each entity's power to punish back to its ultimate source, asking whether the power is original to the entity or was conferred on it by another government.
Treat an entity that exercises conferred power as part of the government that conferred it, and treat an entity that exercises original sovereignty as a sovereign in its own right.
Conclude that the two are separate sovereigns if their ultimate sources differ and the same sovereign if they share one, disregarding differences in interest and overlap in what the laws punish.
When the entities turn out to be the same sovereign, go on to ask whether the two prosecutions are for the same offence under that sovereign's law, because only then does the clause bar the second.

Step two does the real work, since every later conclusion follows from how the entity's authority is traced. The inquiry ends at the first point where power is original rather than borrowed, which for a state is the sovereignty it held before joining the Union.¹⁵

The Source-of-Power Test

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