President Donald J. Trump has urged Congress to prohibit “no-cash-bail” systems in cities like New York and Chicago, a move that critics say would violate constitutional limits on federal power and could undermine public safety objectives.
Legal experts point to the Tenth Amendment, which reserves powers not given to the federal government for the states or the people. Bail policies are generally considered part of a state’s police powers, allowing each state to set its own laws and procedures for maintaining order and protecting public safety.
The Supreme Court has supported this view, stating: “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.”
While Congress can attach conditions to federal funding, it does not have broad authority over how states manage their criminal courts. The Constitution divides sovereignty between state and federal governments, with criminal law falling primarily under state jurisdiction. In most cases, only Washington, D.C., falls directly under congressional control for bail policy; other states retain autonomy.
A federal ban on no-cash-bail laws would likely prompt lawsuits challenging such an action as unconstitutional. Legal observers predict these challenges would probably succeed before any changes could take effect.
No-cash-bail systems use risk assessments instead of financial requirements to decide pretrial release. This approach bases decisions on a defendant’s threat level or likelihood of returning to court rather than financial means. Under traditional cash bail systems, wealthy defendants accused of serious crimes can pay for release while poorer defendants charged with minor offenses may remain jailed simply due to lack of funds. Critics argue this system undermines equal justice and places unnecessary costs on taxpayers.
No-cash-bail policies do not mean automatic release for all; they allow detention in cases involving violent crimes or high flight risk according to state law. Pretrial detention is costly for local governments, who spend billions annually housing people who are legally presumed innocent. Reducing unnecessary detention could redirect funds toward policing, victim services, mental health care, and crime prevention programs.
Research indicates that repeat violent offenders pose the greatest risk of reoffending; focusing detention efforts on them improves outcomes. Holding low-risk defendants can worsen public safety by disrupting employment and housing—factors linked with future offenses. States such as Illinois and New Jersey have seen positive results after implementing no-cash-bail reforms.
Policies differ across states: some prioritize public safety while others emphasize personal freedom in their no-cash-bail approaches. According to democratic principles enshrined in the Constitution, these choices should remain with voters and local representatives rather than being dictated from Washington.
“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,” said a spokesperson from R Street Institute.
Opponents warn that giving broad authority over bail policy to Congress could allow future administrations to impose unwanted rules nationwide—whether mandating cash bail or prohibiting it entirely.
James Madison warned at the Virginia Ratifying Convention in 1788: “[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.” Some legal scholars see Trump’s proposal as such an encroachment on state authority.
Whether one supports or opposes no-cash-bail laws, many experts agree that banning them at state or local levels would run afoul of constitutional protections under the Tenth Amendment as well as established Supreme Court rulings regarding federalism.
