Federalism and the Fight Against Human Trafficking: Addressing Legal Gaps in the United States

Writer: Bennett Calvo

Article Editor: Isabelle Kim

I. Introduction

On January 1, 1863, Abraham Lincoln signed the Emancipation Proclamation.¹ On June 19, 1865, a Union General informed those enslaved in Galveston, Texas, of their freedom.² On December 6, 1865, the Thirteenth Amendment was officially ratified.³ Of these three dates, the one that marked the end of slavery in the United States is an ongoing matter of debate. A matter of debate made null and void by the current state of human trafficking in the United States as inconsistencies in federalist divisions of power have allowed for gaps in the anti-trafficking policies of the U.S. which have proven to be much more ineffective than those managing the same issue found in similarly developed countries.

Human trafficking, a form of modern slavery, is defined by the United Nations (U.N.) as “the recruitment, transportation, transfer, harboring, or receipt of individuals…achieved through exploitative means such as force, coercion, fraud, or deception.”⁴ In 2023, the Global Slavery Index estimated that 1,091,000 people in the U.S. were victims of modern slavery.⁵ When compared to estimates for countries of similar social and economic development, the issue of human trafficking in the U.S. reveals its gravitas. The ten countries ranked around the U.S. in social development, as measured by Human Development Index,⁶ had an estimated combined total of 681,000 victims of modern slavery in 2023.⁷ When the United States’ estimate for victims of modern slavery is compared to the estimates of the eight countries ranked directly below the U.S. in overall economic development, as measured by Gross Domestic Product (GDP),⁸ only China and India have larger estimates of victims of modern slavery in 2023.⁹ Evidently, human trafficking in the U.S. is an issue, and a disproportionately larger issue than it is in similarly developed countries. This raises the question: Why is human trafficking in the U.S. as rampant as it is? To answer that question, an understanding of federalism and the current management of human trafficking in the U.S. is required. Once those factors are taken into consideration, the many issues with the management of human trafficking in the U.S. will be revealed. At which point, the need for lawmakers to clarify and standardize the prosecution of human trafficking offenses across the nation will be implicit.

II. A Brief History of Federalism

Understanding the federalist system in the U.S. is vital for illustrating the gaps this system is currently causing in anti-trafficking environments. The Framers of the U.S. Constitution, wary of giving too much power to the federal government, gave substantial power to the (then thirteen) states that made up the union as a way to resist a tyrannical federal government, should such a government ever develop in the U.S.¹⁰ This system is now known as federalism and it divides power in the U.S. between the national government and state governments. The boundaries of this system have developed through the decisions and consequent precedents established by landmark Supreme Court of the United States cases, such as McCulloch v. Maryland and Gibbons v. Ogden, in the centuries since the inception of federalism. Decided by the Supreme Court in 1819, McCulloch v. Maryland clarified the supremacy of the federal government. In its consideration of a state tax levied against a federal institution, the Court ruled the tax unconstitutional in accordance with the Supremacy Clause.¹¹ The Supremacy Clause, which stated that “laws under the Authority of the United States, shall be the supreme Law of the Land,”¹² was interpreted by the Court in McCulloch v. Maryland to mean that the federal government, and any legislation made by the federal government, was inherently supreme to any state government.¹³ Another landmark decision in establishing the elements of the U.S. federalist system, Gibbons v. Ogden considered an issue involving the Commerce Clause of the U.S. Constitution.¹⁴ The Commerce Clause permits the U.S. Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”¹⁵ In Gibbons v. Ogden, this clause was cited in a decision that established lasting precedent, allowing federal regulation of interstate commerce.¹⁶ These two Supreme Court decisions are especially relevant to this discussion as they make human trafficking, a type of illegal and often interstate commerce, a matter decided in the U.S. on the federal level.

III. Human Trafficking in the U.S. and the World Today

While it is a matter resolved on the national level, human trafficking is a pressing topic on the international level also. The U.N., the premier authority on international human trafficking, identifies the six most common types of human trafficking as forced labor, sexual exploitation, forced criminality, forced marriage, forced begging, and organ removal.¹⁷ Forced labor, which is the most common type of human trafficking in the world today, “often targets individuals for exploitation in industries such as construction, agriculture, domestic servitude, mining, and fishing.”¹⁸ Sexual exploitation, which affected thirty-six percent of victims in 2022, often involves “victims being forced into prostitution or used to produce sexual abuse material.”¹⁹ Forced criminality regularly involves “victims coerced into illegal activities like drug trafficking, theft, fraud, and online scams.”²⁰ Forced marriage is a less frequently detected form of exploitation; however, “Victims of forced marriage often faced overlapping forms of exploitation, including domestic servitude and sexual abuse.”²¹ Forced begging involves traffickers exploiting individuals to solicit money from passersby in public spaces. This type of human trafficking “remains underreported in many regions due to its informal nature and lack of systematic enforcement.”²² Organ removal, the last of the six types of human trafficking cited by the U.N. as most prevalent in the world, involves exploitation of “individuals in desperate economic or humanitarian situations, targeting them with promises of payment in exchange for their organs.”²³ Although the U.N. is the body responsible for defining and reporting on trafficking in the world today, the prosecution of traffickers and rehabilitation of victims happen on the national level. In the U.S., this commission has its foundations in the Trafficking Victims Protection Act of 2000 (TVPA). This Act established the framework for the “3 P’s” of fighting against human trafficking in the United States: protection, prevention, and prosecution. Through these three facets of the TVPA, the U.S. extended protections for non-U.S. citizens trafficked on U.S. soil, created several initiatives and government bodies responsible for preventing trafficking, and added new criminal provisions prohibiting forced labor and sexual exploitation among other types of trafficking.²⁴ The TVPA lays the foundation for the management of human trafficking at the federal level in the United States. It is important to note that in this foundation, there are only charges for forced labor and sexual exploitation.²⁵

IX. Problems with Current Management of the Issue

As stated, the U.S. has federal definitions and charges for forced labor and sexual exploitation.²⁶ While these two offenses make up the majority of human trafficking both in the U.S. and worldwide, they do not constitute all human trafficking. In fact, the U.S. lacks official definitions or charges related to four of the six most common types of human trafficking in the world.²⁷ This lack of federal specificity, in combination with the federalist structure employed by the U.S. government, has created two major problems in the current management of human trafficking: (1) giving states the power to determine human trafficking laws has created a disjointed effort to prosecute human trafficking at the state level, and (2) if and when human trafficking cases that are not considered forced labor or sexual exploitation cross state lines, defendants get lighter sentences than those charged with human trafficking at the federal level.

The first issue presented here is derived straight from the boundaries of federalism as established by McCulloch v. Maryland and Gibbons v. Ogden. The U.S. federal government has supremacy over state governments in the federalist system, but it can only exercise this supremacy in matters of federal-state legal conflict or interstate interactions. In many human trafficking cases, especially in large countries such as the U.S., victims of human trafficking are not transported long distances. In fact, many cases saw victims of human trafficking entrapped in their own homes.²⁸ These situations make laws at the federal level less impactful as they defer determining power in human trafficking to the states. This creates inconsistencies and irregularities in human trafficking laws between states, specifically in regards to sentencing. An examination of the maximum penalties for human trafficking in the three states with the most human trafficking cases illustrates these irregularities.²⁹ Florida, which had the third most human trafficking cases in 2019, enforces a maximum human trafficking penalty of thirty years in prison and a fine of $10,000.³⁰ Texas, which had the second most cases in 2019, punishes the worst human trafficking offenses with up to life in prison.³¹ California, which had the largest share of human trafficking cases in the U.S. in 2019, has a maximum sentence of fifteen years to life in prison and a fine of no more than $500,000.³² These differences in sentencing, for the same crime, contribute to unintentional incentivization for traffickers in different states.

The second major issue with the management of human trafficking in the U.S. is found at the federal level. Due to the lack of official definitions and related charges for several common types of human trafficking, many cases of human trafficking fall under different names at the federal level. Thus, in many situations where human trafficking crosses state lines and falls under federal jurisdiction, a lack of official definitions leads to lighter sentences for traffickers. This is because offenses that should be considered violations of human trafficking law are instead considered under other types of law with lesser maximum penalties. An example of this dilemma can be found in the differences in federal sentencing for sexual exploitation and forced marriages. Although both of these types of human trafficking are among the most common in the world according to the U.N.,³³ sexual exploitation and forced marriages have very different sentences at the U.S. federal level. Sexual exploitation, which is considered human trafficking, can result in a maximum sentence of life in prison.³⁴ By comparison, forced marriage, which is not considered human trafficking by the U.S. federal government, has a maximum sentence of five years under very specific circumstances.³⁵ This illustrates the divide in how penalties for human trafficking and situations that should be considered human trafficking are handled by the U.S. federal government.

V. Conclusion

At its core, the issue of human trafficking in the United States has gotten as severe as it has in recent years due to system-wide differences in management of the issue, predicated on federalism in the government. To address these challenges, several steps must be taken—and consistency is necessary, too. Consistency in definitions employed by the U.S. federal government and the U.N. would likely alleviate many of the negative externalities caused by the currently employed definitions. Additionally, more consistency in sentencing across state penal codes and for charges at the federal level would reduce incentives for traffickers that currently exist in states with lighter sentences. Overall, the U.S. could benefit from taking the issue of human trafficking more seriously. This issue is especially costly because in a country where democracy is the chosen form of government, public opinion and salience of topics are just as important as court cases and legislation.

1.  Barry Schwartz, The Emancipation Proclamation: Lincoln’s Many Second Thoughts, 52 Soc’y 590, 595 (2015). ↩︎
2. This day would come to be commonly known as Juneteenth and is now an official national holiday. See, e.g., Edward T. Cotham, Juneteenth: The Story Behind the Celebration 195 (2021). ↩︎
3. U.S. Const. amend. XIII (ratified 1865). ↩︎
4. G.A. Res. 55/25, at 32 (2000). ↩︎
5. Walk Free, Global Slavery Index 205 (2023). ↩︎
6. U.N. Dev. Program, Human Development Report (May 6, 2025). The five countries ranked immediately above the United States (ranked 17) are the United Kingdom, the United Arab Emirates, Canada, Lichtenstein, and New Zealand. The five countries ranked immediately below the United States are South Korea, Slovenia, Austria, Japan, and Malta. ↩︎
7. Walk Free, supra note 5, at 203–05. There are no estimates given for Lichtenstein or Malta. Estimates for the other eight countries surrounding the United States in HDI rankings are 122,000 (United Kingdom), 132,000 (United Arab Emirates), 69,000 (Canada), 8,000 (New Zealand), 180,000 (South Korea), 9,000 (Slovenia), 17,000 (Austria), 144,000 (Japan). ↩︎
8. World Bank Grp., GDP (2024), https://data.worldbank.org/indicator/NY.GDP.MKTP.CD?most_recent_value_desc=true. The United States is ranked first for economic development as measured by GDP with a GDP of 29,184,890.00 USD. The next eight countries below the United States in economic development (as measured by GDP) are: China (18,743,803.17 USD), Germany (4,659,929.34 USD), Japan (4,026,210.82 USD), India (3,912,686.17 USD), the United Kingdom (3,643,834.19 USD), France (3,162,079.07 USD), Italy (2,372,774.55 USD), Canada (2,241,253.23 USD), and Brazil (2,179,412.08 USD). ↩︎
9. Walk Free, supra note 5. The estimates for China and India are 5,771,000 and 11,050,000 victims of modern slavery in 2023, respectively. ↩︎
10. Kermit Roosevelt, Federalism, Gilder Lehrman Inst. Am. Hist. (undated). ↩︎
11. McCulloch v. Maryland, 17 U.S. 316 (1819). ↩︎
12. U.S. Const. art. VI, cl. 2. ↩︎
13. McCulloch, supra note 11. ↩︎
14. Gibbons v. Ogden, 22 U.S. 1 (1824). ↩︎
15. U.S. Const. art. I, § 8, cl. 3 (the Constitution uses the outdated language of “Indian” to describe Native American and Indigenous communities that lived on modern day U.S. territory prior to colonization). ↩︎
16. Gibbons, supra note 14. ↩︎
17. U.N., Understanding Human Trafficking (2024), https://www.un.org/en/peace-and-security/understanding-human-trafficking. ↩︎
18. Id. ↩︎
19. Id. ↩︎
20. Id. ↩︎
21. Id. ↩︎
22. Id. ↩︎
23. Id. ↩︎
24. Trafficking Victims Protection Act of 2000, 22 U.S.C. § 105–13; Human Trafficking Key Legislation, U.S. Dep’t Just. (2023), justice.gov/humantrafficking/key-legislation. The TVPA has been amended in the years since its creation. However, at the time of writing, no substantive changes to definitions or legal penalties related to human trafficking have been made, so it still offers the most holistic view of U.S. human trafficking law. ↩︎
25. Trafficking Victims Protection Act of 2000, 22 U.S.C. § 105–13. ↩︎
26. Id. ↩︎
27. U.N., supra note 17. The four types of human trafficking that the U.S. lacks definitions or charges for are forced criminality, forced marriage, forced begging, and organ removal. ↩︎
28. Nat’l Hum. Trafficking Hotline, Myths & Facts of Human Trafficking (2025), https://www.humantraffickinghotline.org/en/human-trafficking/myths-facts. ↩︎
29. Polaris Project, 2019 U.S. National Human Trafficking Hotline Statistics (2019), http://polarisproject.org/2019-us-us-national-human-trafficking-hotline-statistics/. The three states with the most human trafficking cases in 2019 were California (1,507 cases), Texas (1,080 cases), and Florida (896 cases). ↩︎
30. Fla. Stat. § 787.06 (2000). ↩︎
31. Tex. Pen. Code § 20A.01 (2003). ↩︎
32. Cal. Pen. Code § 236.1 (2005). ↩︎
33. U.N., supra note 17. ↩︎
34. 18 U.S.C. § 1591. Minimum sentence is fifteen years in prison. ↩︎
35. 18 U.S.C. § 2262. This five year sentence is only applicable in cases where the party forcing the marriage is doing so in opposition to a protection order, called a Forced Marriage Protection Order. In situations where no such order is present and the party being forced to marry is of sufficient mental capacity to consent to marriage there is no explicit penalty in the United States Code. ↩︎