Why Federal Repeal of No-Cash-Bail Laws Would Be Unconstitutional—and Bad Policy

This analysis is in response to breaking news and it has been updated. Please contact pr@rstreet.org to speak with the author.

President Donald J. Trump’s call for Congress to ban so-called “no-cash-bail” systems in New York City and Chicago oversteps constitutional boundaries and risks undermining the very public safety goals it claims to advance. By federalizing a policy best left to the states, it invites legal challenges, fuels political division, and distracts from targeted initiatives that could actually make communities safer.

The Constitution is pretty clear on this one. The Tenth Amendment says that any powers not given to the federal government belong to the states or the people. That includes the power to decide how to handle bail. Congress has no general authority to dictate how states set their bail laws. Bail policy falls under a state’s police powers—the authority to set laws and procedures that protect public safety and maintain order. These are core functions of state sovereignty.

The Supreme Court has reinforced this principle. It has stated in unmistakable terms: “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”

Yes, Congress can sometimes attach strings to federal funding, but that’s a far cry from having the authority to dictate how states operate their criminal courts. Even that “power of the purse” comes with strict limits. Indeed, the Framers envisioned a system of dual sovereignty. Federal power covers matters of national or interstate concern. State power governs internal criminal law and procedure.

While Congress has some authority to legislate bail policy in Washington, D.C., other states and municipalities are strictly off limits. A federal law banning no-cash bail would encroach on and undermine state authority without clear constitutional justification. If such a thing were to happen, lawsuits would almost certainly be filed—and likely won—before the first bail hearing even took place.

Beyond the constitutional concerns, it’s worth addressing the substance of no-cash-bail laws. These systems replace money-based pretrial release with risk-based assessments. This ensures that decisions are based on a defendant’s threat to public safety or unwillingness to come back to court, not their financial resources.

Under a traditional cash bail system, two defendants accused of the same offense may have vastly different outcomes. A wealthy defendant charged with a serious crime can pay bail and walk free within hours. A low-income defendant charged with a minor, nonviolent offense may sit in jail for days or weeks simply because they cannot afford to pay. This wealth-based system ignores safety, undermines the principle of equal justice, and imposes significant costs on taxpayers.

No-cash-bail policies do not mean everyone is released. They allow for detention when state law deems it necessary, typically in cases involving violent crimes and/or high flight or safety risk. From a fiscal perspective, pretrial detention is expensive. Local governments spend billions annually to house people who are legally presumed innocent. Reducing unnecessary detention can free up funds for law enforcement, victim services, mental health care, and other crime-prevention strategies.

Research shows that persistent violent offenders are most likely to reoffend, so focusing detention on repeat violent offenders is best. Conversely, holding low-risk defendants can negatively impact public safety, as individuals lose employment and housing, which then increases the likelihood of future offenses. The research is bearing out, with positive results emerging in both Illinois and New Jersey—the latter not singled out by Trump but among the first states to adopt a no-cash-bail system.

While not every no-cash-bail system should be considered the same—some prioritize safety, while others prioritize freedom—the Constitution and democratic principles leave these decisions to local voters and their elected representatives. Trump’s proposal would override local decision-making, set a precedent for congressional interference in local criminal policies, and waste court and taxpayer resources on countless lawsuits.

Even opponents of no-cash bail should be wary of granting Washington this kind of authority. A future administration could wield the same power to impose no-cash bail nationwide.

The Founders designed a system in which states serve as “laboratories of democracy,” testing different policies to see what works. Some states may decide that risk-based pretrial systems serve their communities well. Others may stick with cash bail. But those decisions belong to the states—not Washington, D.C. James Madison himself warned at the Virginia Ratifying Convention in 1788 that, “[t]here are more instances of the abridgment of the freedom of the people, by gradual and silent encroachments of those in power, than by violent and sudden usurpations.” Trump’s proposal is such an encroachment.

Whether one supports or opposes no-cash-bail laws, the proposal to ban them at the state and local level would violate the Tenth Amendment, contradict Supreme Court precedent, and undermine the principles of federalism. Sound bail policy should be guided by the people it directly affects, and national crime policy works best when Washington respects the limits of its power, stays within its constitutional bounds, and trusts communities to govern themselves.