In the New Jersey sports betting case, a Supreme Court divided 7-2 confirms that the Constitution sharply limits the power of the federal government to compel states to enact laws furthering federal policy. The implications are many in fields “from environmental regulation to sanctuary cities, marijuana to guns.” [Ilya Shapiro] [Ilya Somin] It’s a “major victory for federalism….makes clear that a majority of the Court is strongly committed to the anti-commandeering principle. That bodes well for state efforts to oppose commandeering (and perhaps other types of federal coercion) in other areas.” Earlier here, here, here, etc.
“Is there now more opportunity for cross-ideological support for [federalism]? Or do continuing divisions on the nature of federalism such as the debate between competitive and cooperative federalism make this an unpromising alliance?” Panel at Federalist Society Lawyers’ Convention with John McGinnis, Heather Gerken, Abbe Gluck, Ilya Somin, John Eastman with Judge William Pryor moderating.
- What’s worse than undermining Section 230, charter of Internet freedom? Turning it all into a pinata for trial lawyers [No go, NRO; earlier on SESTA and FOSTA] Carve-out to Section 230 in name of fighting sex trafficking could erode protection for other businesses against being sued [WSJ editorial] More: Karol Markowicz;
- “If You Owe the IRS Over $51,000, It Can Trap You in the United States” [Brian Doherty, Reason]
- How far can a theft ring go in stealing a rental vehicle before the police step in? [related Twitter threads, Sharky Laguana and Noah Lehmann-Haupt]
- “Federalism as a Check on Executive Authority,” panel at Federalist Society 2017 Annual Texas Chapters Conference with Caitlin Halligan, Scott Keller, Ernest Young, moderated by Hon. Jeff Brown [video]
- Revisiting an auto scare: “Will the Corvair Kill You?” [Larry Webster, Hagerty, earlier here and here]
- No, peacocks-in-the-airline-cabin isn’t really some failure of “fetishizing [individualism over] communal well-being.” It’s a failure of collectivized legal compulsion overriding contract and choice [David Leonhardt, New York Times; Elizabeth Preske, Travel and Leisure on underlying episode; earlier on emotional-support and other service animals]
Attorney General Jeff Sessions has rescinded an earlier Justice Department memo which had prescribed a hands-off approach to enforcing some aspects of the federal ban on marijuana in states that have legalized the drug for medical or recreational use. A needless step backward for federalism and state autonomy, or a necessary implication of the rule of law and the associated geographical uniformity of federal law? Some commentaries: Ken White/Popehat; Jacob Sullum (“Although [the] move reflects Sessions’ well-known opposition to marijuana legalization, it is not clear how big an impact it will have on the cannabis industry, because federal prosecutors have always had broad discretion but limited resources in this area”); Jonathan Blanks (“This move endangers state-legal businesses and violates the principle of federalism that has been central to the Republican Party for decades”); Jonathan Adler; Ilya Somin; Jeffrey Miron (“Marijuana liberalizations (decriminalization, medicalization, and legalization) have generated none of the negatives asserted by Sessions [who compares the drug to opiates and links it to violence]; in fact, the evidence shows minimal impact on use, health, traffic safety, education, or crime”).
- “The justices tackle partisan gerrymandering again: In Plain English” [Amy Howe, SCOTUSBlog, earlier on Gill v. Whitford here and here] SCOTUS declines to speed up review of Maryland gerrymander, and what that could mean for wider issue [Lyle Denniston]
- Reversal of fortune: firing back on the Hamilton angle in Emoluments Clause fight [Josh Blackman on new filings countering previous Hamilton claims, Prof. Jed Shugerman’s apology, Adam Liptak]
- From Usery to Garcia to commandeering: better for SCOTUS to respect states’ core sovereignty [Nick Dranias, Liberty and Law]
- Cato Unbound roundtable on religious liberty with Ilya Shapiro, David Gans, Robin Fretwell Wilson, and K. Hollyn Hollman; related 2016 conference and new volume from Cato, Deep Commitments; 2016 religious liberty report from U.S. Conference on Civil Rights (note in particular separate statements and rebuttals by commissioners including Gail Heriot);
- Panel on expected trends in federal courts with Republican nominations: Randy Barnett, Richard Epstein, Adam White, James Copland [Manhattan Institute] At 23:35, White refers to Scalia’s 1981 “Regulatory Reform: The Game Has Changed” on how party control change implies playbook change in seeking regulatory reform, while Epstein at 28:00 cites his own exchange with Scalia;
- SCOTUS should apply papers and effects language of Fourth Amendment to protect data records as property [Ilya Shapiro]
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.
“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).
Auto emissions design is an issue of federal regulation, and other elements of the legal process protect the rights of affected individuals, a federal court rules. So, no, states don’t get to file lawsuits of their own just because they want to. [Sara Randazzo, WSJ]
“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.
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.
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.