Posts Tagged ‘federalism’

Justice Department revamps consent decree rules: what the press missed

The feds plan to be less heavy-handed in using consent decrees to micromanage states and cities, and there’s a good case for that, I argue at National Review. Alas, as I explain, national media bungled the story in November by characterizing Jeff Sessions’s memo as if it were primarily aimed at reducing oversight of police. “Not once in its seven pages does the word ‘police’ even appear.”

My short piece doesn’t take up the question of how the well-documented problems of consent decrees in other areas are to be weighed against the possible advantages of the device in curbing abuse-prone police departments. But at least some advocates of police reform and accountability have expressed doubts about whether the process, which can sometimes take political pressure off the local authority, really works as advertised [David Meyer Lindenberg, Tim Lynch, Scott Greenfield; see also John McGinnis]

O’Connor: “I am no longer able to participate in public life”

Retired Justice Sandra Day O’Connor has released a letter to the public about her declining health. O’Connor is rightly admired for her inspiring life story and unswerving loyalty to the highest civic principles as well as the ideals of the judiciary. Even at this difficult moment of her life, as the letter shows, she is intent on advancing the res publica.

That O’Connor was the swing Justice of her day did not mean that her role on the Court came down to trimming or compromise. Together with fellow Arizonan Rehnquist, no one was more central in the Court’s reinvigoration of federalism, drawing on her record as the only Justice of our era with extensive service in a state legislature. She has led public discussion in the right direction on issues ranging from professional responsibility and race and redistricting to judicial elections.

And as I noted in 2005, if a single jurist deserves our thanks for helping turn back what had seemed like an irresistible trend toward ever more litigiousness in the civil justice system, it is she. “More vocally than any of her present colleagues, Justice O’Connor sounded the alarm against what she’s termed ‘the increasing, and on many levels frightening, overlegalization of everyday life in our country today.'” Her leading role on such issues as due process review of punitive damages reflected that view. For that, as well as for her notice of my work along the way, count me among the grateful.

Sports gambling case reaffirms curbs on federal dictation to states

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 Everyone Now for Federalism?”

“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.

March 7 roundup

  • 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]

Marijuana, federalism, and law enforcement

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”).

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).