Posts Tagged ‘federalism’

Supreme Court and constitutional law roundup

Can the feds force New Jersey to ban sports betting?

A 1992 federal law forbids states to legalize sports betting. The Supreme Court should nix that under its federal-state “anti-commandeering” doctrine: “If the federal government wants to enforce its chosen policy, it must find a way to do so that doesn’t involve having New Jersey do its dirty work.” [Ilya Shapiro and Matthew Larosiere on Cato-joined amicus brief in Christie v. NCAA; Amy Howe; John Brennan, Milwaukee Journal Sentinel; earlier] More: Richard Morrison, CEI.

States’ boycotts of states, cont’d

“California state university researchers are banned from using funds to travel to Texas to study Harvey’s aftermath.” — Joshua McCabe on Twitter. The guidelines from California Attorney General Xavier Becerra do cite the legislature’s allowance of a number of narrow exceptions including travel that is “required…for the protection of public health, welfare, or safety, as determined by the affected agency.” The cited project, however, might not make it past that tough standard, given that it is possible in principle to wait and study flood aftermaths in some other place that (unlike Texas) is not under legislated California sanctions.

All of which should remind us that boycotts of states by other states 1) operate like internal trade barriers; 2) do not do much for national unity. See earlier posts from April 2015 (would Constitution provide any remedy if states closed state university systems to residents of “bad” states?); April 2016 (logic of lifting sanctions against Cuba extends to sanctions against Texas and North Carolina).

“Back the Blue Act”

“The Back the Blue Act would make any assault on an officer a federal crime with a mandatory minimum sentence. But here’s the thing: assaulting a police officer is already a crime in every state and already carries strict penalties set by local legislatures.” The placing of persons under arrest inevitably generates some ambiguous or factually uncertain instances of the closely related offenses of resisting arrest and assault on a police officer, and the concept of assault itself is independent of any infliction of actual injury. Pulling broad swaths of this law, and then subjecting the whole thing to mandatory minimums, is unlikely to improve matters. (The bill has other provisions too.) [Neill Franklin, The Hill] More: Scott Shackford.

More on liability reform in the House — and a federalism angle

I’ve got a post at Cato at Liberty catching up on House action on litigation reform bills — see last week — and comparing it in particular to the recommendations of the chapter on tort and class action law (of which I was one author) in the new 8th edition Cato Handbook for Policymakers. As I note, two measures (on sanctions and class actions) track recommendations Cato scholars have been making for years, while a third (on medical liability] has been scaled back in a way that at least nods to concerns I and others have expressed.

The last few paragraphs of the piece follow:

Finally, there has been a development worth noting on H.R. 1215, the Protecting Access To Care Act, which passed committee by an 18-17 vote on Feb. 28. I and others have repeatedly criticized federal medical liability bills on the grounds that they run into serious problems of federalism and enumerated powers, seeking to justify federal involvement by way of loose New Deal doctrines of impact on interstate commerce, and overriding the workings of state courts even as to the large mass of medical malpractice disputes in which both parties to the lawsuit are local to the state and the costs of error are apt to be local as well. As I argued in this space:

That doesn’t mean federal policymakers are to be left with no role at all. For example, if Washington is paying for a large share of hospital stays, it may make sense as a cost containment measure for it to steer beneficiaries into lower-cost ways of resolving disputes over care quality, or even to ask beneficiaries as a condition of treatment to agree not to file certain suits at all. But that would require stepping back toward a more careful—and more Constitutionally appropriate—view of the federal role.

This year, PACA includes a new limiting provision. To quote Rep. Bob Goodlatte, on the bill’s latest version:

Unlike past iterations, this bill only applies to claims concerning the provision of goods or services for which coverage is provided in whole or in part via a Federal program, subsidy, or tax benefit, giving it a clear federal nexus. Wherever federal policy affects the distribution of health care, there is a clear federal interest in reducing the costs of such federal policies.

Whether the provision in question is drafted in such a way as to pass federalist muster is a question for another day — but it does at least seem that someone on Capitol Hill may have been listening to our past critiques.

January 4 roundup

More state battles on religion, sex, and discrimination law

Enough already with the bans on so-called inessential travel: short of an impending civil war, boycotts, sanctions, and embargos against U.S. states by the governments of other U.S. states and cities are a truly bad idea [Nathan Christensen, Washington Post]

Relatedly, Gillian White quotes me in the Atlantic on North Carolina’s HB 2 controversy, the latest in a series of battles over discrimination law, religion, business, and LGBT persons, at this point almost entirely symbolic to large publics on both sides, with the considerable differences between particular enactments (Georgia, Mississippi, Indiana, etc.) seeming to matter relatively little. Finding accurate reporting on what the employment provisions of North Carolina’s HB 2 would do is not easy, as Robin Shea discovered [Employment and Labor Insider]

Finally, I’ve got a letter to the editor in the Wall Street Journal responding to an opinion piece the paper had run by Georgia state senator William Ligon:

Sen. Ligon misstates the scope of North Carolina’s new law when he writes that “the new law simply prevents local governments from forcing business owners to adopt” policies on transgender bathroom use. As a libertarian, I would be fine with the new law if that were all it did, but in fact Sen. Ligon is describing only Part III of the bill. Part I of the bill imposes affirmative, uniform new duties of exclusion on North Carolina government entities such as schools, town halls, courthouses, state agencies and the state university system, taking away what had generally been at local discretion. This not only will inflict needless burdens on a small and vulnerable sector of the public, but presumes to micromanage local governments and districts in an area where they had not been shown to be misusing their discretion. Whatever the merits of the rest of the bill, the provisions on state-furnished bathrooms are a good example of how legislation in haste from the top down can create new problems of its own.

Walter Olson
Cato Institute
Washington