The Volokh Conspiracy

Back in October, the Obama Administration Justice Department issued a memorandum that seemed to constrain federal enforcement of laws against marijuana possession in states where medical marijuana is permitted under state law. I welcomed the memo as a small sign of progress, but pointed out that it doesn’t really constrain federal prosecutions in any meaningful way. Federal prosecutors could still undertake virtually any marijuana prosecution they wanted without violating the memorandum’s guidelines:

The key sticking point is that the memo only applies to uses of medical marijuana that are in “clear and unambiguous compliance with state law”....

Given these disagreements [ over the interpretation of state law] at the state and local level, it will usually be difficult to prove that any given medical marijuana user is in “clear and unambiguous compliance state law,” as opposed to merely arguable or probable compliance with it. 

It’s also worth noting that the memo doesn’t actually tell prosecutors to forego pursuing cases against even those distributors and users who are in “clear and unambiguous compliance.” It merely says that “as a general matter,” such prosecutions are “unlikely to be an efficient use of limited federal resources.” A prosecutor who thinks that a given case is an exception to this generalization or believes that his office has some excess or underutilized “resources” might still pursue such cases. The memo also outlines numerous situations where prosecution of medical marijuana distributors and users is still encouraged....

This recent district court decision upholding the prosecution of a medical marijuana distributor in California (a state which has legalized medical marijuana under state law), reaches much the same conclusions about the meaning of the memo as I did. Like me, the judge noted the very loose nature of the memo’s restrictions. He also made this relevant point:

Even if Defendant’s prosecution were contrary to the guidance set forth in the Memorandum, dismissal of the Indictment would not be warranted. Defendant has not pointed to any authority for dismissing an indictment because it is contrary to internal Department of Justice guidelines.... Indeed, the Memorandum specifies that it is not intended “to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter .... Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.”

Despite campaign rhetoric to the contrary, the Obama Administration has yet to make any genuine progress against the infringements on civil liberties and constitutional federalism created by the War on Drugs. If the president really wanted to stop federal medical marijuana prosecutions in states where medical marijuana is legal under state law, he could have issued a clear and unequivocal executive order forbidding federal prosecutors from doing so, or instructed the attorney general to issue a firm policy guidance to that effect. Unfortunately, he chose not to do so. 

In fairness, the preceding Bush Administration was probably even worse on this front. That, however, is not much consolation to me or other critics of the War on Drugs. 

Students at the University of Mississippi have started a campaign to replace the school’s longtime mascot Colonel Reb with Admiral Ackbar, leader of the Rebel Fleet in Star Wars. Colonel Reb was retired in 2003 because “coaches and athletic boosters concluded that C. Reb and other symbols of the Confederacy hurt the school’s recruiting prospects.” The movement has attracted national attention, and Lucasfilm says that they may license the use of Ackbar by Ole Miss.

Both science fiction fans and Confederacy-haters have reason to cheer this development. Given my view of the Confederacy (see here and here, and here), I fall into both categories. From a competitive standpoint, it also makes good sense to replace a mascot who represented an evil cause that failed with one that symbolizes a just cause that won. Winners make better mascots than losers.

The Ole Miss Rebel Alliance — the student group promoting Ackbar as the new mascot — originally did so as a joke. But they also acted for the more serious purpose of preventing the reinstatement of Colonel Reb:

Six days before the Ole Miss student body was called to vote on whether to accept the responsibility of developing a new mascot, four students came together to fill a void for those who were ready to lay Colonel Reb to rest.

Drawing comedic inspiration from a squid-like Star Wars character, Tyler Craft, Matthew Henry, Joseph Katool and Ben McMurtray launched the Ole Miss Rebel Alliance and unwittingly introduced Admiral Ackbar as a potential mascot candidate....

A Web site was created featuring the now-viral image of Ackbar dressed in a red hat and jacket similar to that of his predecessor....

“We started this as sort of a fun thing,” Craft said. “We did it with satire, fun and a little comedy. Admiral Ackbar represented the people who wanted to move forward, which apparently was a good portion of the campus.”

Ole Miss students got the joke, and through parody emerged another contender in the battle for a new mascot.

On one side stood the Colonel Reb Foundation, developed shortly after the former mascot’s removal in 2003, who launched a widespread advertising campaign in the days leading up to the vote encouraging students to oppose creating a new mascot.

McMurtray said it was obvious there was no organization pushing for the ‘yes’ vote.

“No independent organizations really voiced their support (for a new mascot), so that was our goal — to try to be that organization,” McMurtray said.

Those looking for an alternative to the colonel’s salvation suddenly had a common, albeit laughable, rallying point.

And rally they did. More than 2,500 students voted in favor of finalizing the university’s seven-year disassociation with its former mascot.

Suddenly, four jokesters found themselves at the forefront of not only a campus movement, but a national media blitz — one that removed focus from a university clinging to images representative of its divisive past to one where students were ready to move on. 

Since the 1960s, scholars have spoken of the rise of a New South that is beginning to transcend the region’s legacy of slavery and segregation. The state of Mississippi was once one of the most segregationist of all, and the University of Mississippi was famously resistant to the admission of black students. This change is a small but interesting indication of the broader changes in the South over the last two generations. The legacy of segregation and the Myth of the Lost Cause certainly aren’t completely dead. But even at Ole Miss they are on their way out.

In today’s Wall Street Journal, Gail Heriot and Peter Kirsanow of the US Commission on Civil Rights have an interesting op ed criticizing the Akaka Bill, which I myself criticized on federalism grounds in this post:

Last week, the House of Representatives, in a largely party-line vote, passed the Native Hawaiian Government Reorganization Act. Popularly known as “the Akaka bill,” this piece of legislation might turn out to be this Congress’s single most calamitous decision.

The bill creates a complex federal framework under which most of the nation’s approximately 400,000 ethnic Hawaiians can organize themselves into one vast Indian tribe. It endows the tribe with the “inherent powers and privileges of self-government,” including the privilege of sovereign immunity from lawsuit. It also by clear implication confers the power to tax, to promulgate and enforce a criminal code, and to exercise eminent domain. Hawaii will in effect be two states, not one.

The method used to create this tribe should make everyone squeamish. The bill delegates the delicate task of deciding who may join the tribe to a federal commission appointed by the secretary of the Interior. Ultimately, the tribe itself will have the power to expel members or invite new ones.

Earlier versions of the bill demanded that the secretary appoint only ethnic Hawaiians as commissioners. In the current version, only those with “10 years of experience in the study and determination of Native Hawaiian genealogy” and “an ability to read and translate . . . documents written in the Hawaiian language” may serve on the commission. These commissioners will examine an applicants’ backgrounds to ensure that only “qualified Native Hawaiians” with the right amount of Hawaiian blood join the tribe....

First, the Akaka bill privileges what is in fact a race, not a tribe. The very act of transforming a racial group into a tribal group confers a privilege on one race and not others and is thus unconstitutional. Second, while the Constitution implicitly gives the federal government the power to recognize tribes with a long and continuous history of separate self-governance, it does not give the power to confer sovereignty on new tribes, or to reconstitute a tribe whose members have long since become part of the mainstream culture.

If it did, all manner of mischief could be accomplished, as ethnic Hawaiians will not be the last group to demand special status. Some activists argue that Southern California should be set aside as a homeland for Mexican Americans of Indian descent. Right now, that idea looks like pure fantasy. If the Akaka bill becomes law, it will suddenly become more plausible.

What’s more, the Amish in Pennsylvania and the Orthodox Jews in New York could also start to see a benefit from constituting themselves as a tribe, since tribes, unlike federal and state governments, are free to establish theocratic governments. On what ground will Congress say no to these and other would-be tribes? 

CONFLICT OF INTEREST WATCH: As noted in my previous post on this subject, my fiancee is Gail Heriot’s special assistant at the US Commission on Civil Rights. Because of the federalism issues noted in that post, I was opposed to the Akaka Bill long before I met my fiancee and also before she got her present job last year.

The House of Representatives recently passed the Akaka bill, H.R. 2314, which would give native Hawaiians the power to establish a new “tribal” government modeled on that of Indian tribes. Most of the debate over the bill has focused on the racial aspect, since it apparently seeks to create a government entity under the exclusive control of a single ethnic group. This may be a violation of the Equal Protection Clause. Whether this constitutional objection is valid or not, I think there are serious constitutional federalism problems with the legislation. 

I. The Commerce Clause Doesn’t Give Congress the Power to Create an New Indian Tribe for Native Hawaiians.

Supporters claim that Congress has the power to enact this bill under the so-called Indian Commerce Clause, which gives Congress the authority to “To regulate Commerce . . . with the Indian tribes.” 

As legal scholar and US Commission on Civil Rights Commissioner Gail Heriot pointed out in her testimony against the bill, this is “a thin reed indeed upon which to predicate a power to create a tribal government.” Heriot emphasizes that the power to regulate commerce with existing Indian tribes does not include the power to create a wholly new tribe:

The United States has long recognized the sovereign or quasi-sovereign status of certain tribes. But until now, it has done so only with groups that have a long, continuous history of self-governance. Tribes were treated as semi-autonomous entities, because they were; they had never been brought under the full control of both federal and state authority. Federal policy toward them was simply an appropriate bow to reality. To withdraw recognition to any such group without very good reason would be an injustice.

By retroactively creating a tribe out of individuals who are already full citizens of both the United States and the State of Hawaii, and who do not have a long and continuous history of separate self-governance, H.R. 2314 would be breaking new ground. 

Proponents could argue that the Necessary and Proper Clause gives Congress the power to create new tribes. However, it’s hard to see why the power to create a new tribe is in any way a “necessary” or “proper” means to the objective of regulating commerce with existing tribes. Congress’ ability to do the latter is in no way facilitated by the establishment of a new “tribe” for native Hawaiians. 

Nor is it persuasive to argue that native Hawaiians are analogous to an Indian tribe because Hawaii was an independent nation prior to its annexation by the US in the 1890s. As Heriot notes, that independent sovereignty was terminated by the annexation itself and never revived until now. Moreover, she explains that the earlier independent Hawaiian state was in no way ethnically exclusive, and included a high percentage of non-Hawaiians among its citizens (mostly Americans and British). If Hawaii’s independence prior to annexation gives Congress the power to create a new Indian tribe for native Hawaiians, presumably Congress could also create a tribe for descendants of Texans who lived in the Republic of Texas prior to its annexation by the US.

II. Creating a New Tribe for Native Hawaiians May Violate State Sovereignty.

There is also a second potential federalism problem with the Akaka bill. By authorizing the creation of a tribal government for native Hawaiians, Congress is carving out a new sovereign entity within the territory of the existing state of Hawaii. It’s far from clear that Congress has the power to do such a thing under the Constitution. Article IV, Section 3 of the Constitution states that “no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” The new Hawaiian tribal government may not have powers great enough for it to count as a “State” within the meaning of Article IV. Still, the federally mandated creation of a new sovereign entity within the boundaries of an existing state is constitutionally dubious. It is not authorized by the enumerated powers of Congress. 

It also runs counter to the logic of Supreme Court decisions such as New York v. United States and Printz v. United States, holding that the Tenth Amendment forbids the federal government to “commandeer” agencies of state governments. If it is unconstitutional for the federal government to infringe state sovereignty by commandeering its government agencies even in relatively modest ways (e.g. — in Printz, where they were merely required to conduct background checks on gun buyers), surely it is at least equally problematic for the federal government to in effect commandeer the state’s control over a substantial proportion of the state’s territory and population, and transfer that power to a new political entity. 

Indian tribes have broad exemptions from control by state law by virtue of their special political status. If the new Hawaiian “tribal” government has similar powers, it would be a substantial limitation on Hawaii’s sovereignty. As Heriot puts it:

Ultimately, this purported tribe would almost certainly have powers like those of mainland Indian tribes–including the power to make and enforce laws, promulgate a criminal code, punish offenders, impose and collect taxes and exercise eminent domain–as well as police powers and the privilege of sovereign immunity.

In its exercise of such powers, the Hawaiian tribe would be free of state government control, as is also true of Indian tribes.

Unlike many conservatives and libertarians, I am not categorically opposed to the use of racial classifications for the purpose of compensating victims of historical injustices. Perhaps Congress or the Hawaii state legislature would be justified in enacting some such measure for the benefit of native Hawaiians. I doubt, however, that the creation of a tribal government is likely to be a particularly good way to provide compensatory justice for them. In any event, the bill has serious constitutional problems entirely aside from its racial and ethnic elements.

CONFLICT OF INTEREST WATCH: My fiancee is Gail Heriot’s special assistant at the US Commission on Civil Rights, and Heriot has long been a leading critic of the Akaka Bill. I don’t think this fact significantly influences my position the issue. I held much the same view before I ever met my fiancee. Still, I mention it just to be on the safe side.

In a recent post, co-conspirator Eugene Volokh argues that the Civil War did not settle the issue of the constitutionality and moral defensibility of secession. I made a detailed argument to the same effect in this 2008 post.

I’m not going to restate all my analysis here. But I will say that I don’t think that secession is either clearly unconstitutional or always morally wrong. I agree with Eugene that secession at this particular moment in American history is probably both infeasible and likely to cause more harm than good. I don’t think, however, that that will necessary remain true indefinitely. 

In many federal systems, secession is an important safeguard for minority groups and a guarantee against excessive concentrations of power in the central government. Historically, at least some secessions have done great good, such as the “Velvet Divorce” between the Czech Republic and Slovakia in 1993, Norway’s early 20th century secession from Sweden, Finland’s secession from the Russian Empire, and the Baltic States’ 1991 secession from the USSR. The American Revolution was, of course, a violent secession from the British empire, one that most Americans surely believe to have been justified. 

Not all secession movements are defensible. As I see it, their merits depend crucially on the nature of the regime they are seeking to secede from and the quality of the one they are likely to establish. For this reason, I am one of the relatively few Americans sympathetic to the general idea of secession who also believes that the Confederate secession effort of 1861 was utterly indefensible. The Confederates seceded for the deeply unjust purpose of defending and perpetuating slavery, a point that I discuss in detail here and here. For that reason, among others, their defeat and the resulting abolition of slavery was a far better outcome than a Confederate victory would have been.

For those who may be interested, I discussed many issues related to the pros and cons of secession in this series of posts in 2008 and 2009. It may be an interesting way to pass the time for federalism buffs confined to their homes by the latest iteration of “Snowmageddon.”

Co-blogger Ken Anderson asks:

Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be. Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road? Or am I just seeing the world too much through a national security lens?

These issues were not discussed in the briefs of the parties, the oral arguments, or any of the amicus briefs I have seen (though I haven’t read all of the latter). Even if Comstock wins, I don’t think the decision will have much impact on national security detentions. The Comstock litigation only addresses Congress’ power to confine people using its powers under the Commerce Clause and the Necessary and Proper Clause. The detention of terrorists and other enemy combatants is authorized by some combination of Congress’ power to declare war, its power to “raise and support Armies” (which presumably includes those personnel responsible for holding enemy prisoners); its power to establish laws for the “government and regulation” of the armed forces (including procedures for detaining enemy combatants), and its power to “define and punish” offenses under the “law of nations” (which includes the power to punish enemy combatants who have committed war crimes). Some detentions might also be authorized by the president’s power as commander-in-chief, though in my view such detentions are subject to congressional regulation.

(Update:  Thanks to Ilya for his post above, and Orin for his comment below to this post.  Bottom line is that Comstock does not have national security implications.)

Could I put a question to the VC staff who are following Comstock?  For those of us in the national security area, the whole matter of continued detention after a sentence has been fully served is of interest because of the possible implications for national security detention.  Detention at Guantanamo and elsewhere in the ‘global war on terror’ has been justified on “enemy combatant” grounds, but arguably (not according to the Obama administration, however, at least to this point) those grounds are weakening as the Supreme Court has altered the pure scheme of wartime detention to include such things as habeas and other innovations.

Numbers of commenters, trying to figure out a less ad hoc basis for detention, while still accepting that there is a justified need and basis for detention, have proposed administrative detention authority under Congressional legislation that might depend upon claims of national security and the law of self defense, but would not be grounded in armed conflict status and being declared an “enemy combatant.”  Glenn Sulmasy has written a very interesting, good short book on the subject; Jack Goldsmith, Matthew Waxman, Mark Gitenstein, and Ben Wittes all discuss some form of administrative detention in Ben Wittes’ new Legislating the War on Terror; I’ve endorsed the idea several places; it’s a discussion in the air over the last couple of years.  At least until the Obama administration apparently decided not to take the war on terror to Congress for a long term legislative arrangement and Congress sighed a big happy sigh of relief at not being on hook for any difficult votes.

Back at the beginning of the war on terror, post 9–11, I remarked on some panel somewhere that administrative detention had been blessed in the US under some pretty weird circumstances — specifically, the Supreme Court decision, sharply divided, endorsing administrative detention for child sexual predators even after sentence served — that is, the state-created version of what Comstock, as I understand it, is debating.  On that panel, which was very early after 9–11, representatives of a couple of civil liberties/human rights groups, which had been arguing that detention of this kind had never happened before, looked surprised.  Mind, I have always opposed the original Supreme Court ruling, on grounds that don’t have very much to do with national security administrative detention under civilian, rather than military, authority.  But it is certainly the case that the United States has long had mechanisms for administrative civil detention for the long term.

Here’s my question to the VC Staff:  Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority?  I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be.  Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road?  Or am I just seeing the world too much through a national security lens?

Corey Rayburn Yung has a detailed discussion of today’s Comstock oral argument. See here and here. He also predicts a 6–3 victory for the government. Other analysts gave widely differing predictions. Regular VC readers may recall that Comstock is the case where the government is defending a statute allowing it to civilly confine “sexually dangerous” offenders after the completion of their federal prison terms — even if the crimes for which they were originally convicted have no connection to sexual predation. Somewhat strangely, in my view, the government’s brief focused almost entirely on the Necessary and Proper Clause, and largely ignored potentially effective arguments that they could prevail under current Commerce Clause precedent. To my mind, the most telling exchange in the oral argument was this one between Justice Scalia and Solicitor General Elena Kagan:

JUSTICE SCALIA: General Kagan, you are relying on the Necessary and Proper Clause, right? You say: But necessary and proper doesn’t mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution.

Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it’s necessary for the good of society, but that’s not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he’s served his punishment.

GENERAL KAGAN: The Court has always said, Justice Scalia that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal — in that criminal justice system, are not released irresponsibly.

Note that Kagan fails to link the confinement of these individuals to any other enumerated power of the federal government. She tries to link it instead to “the Federal power to operate a criminal justice system.” However, there is no separate enumerated power to operate a criminal justice system. Rather, Congress is only able to operate such a system in so far as it is necessary to implement one of its other powers (e.g. — to enforce punishments to deter people from violating federal laws that enforce one of those other powers). The power to incarcerate “sexually dangerous” inmates who have completed their sentences does nothing to assist in the enforcement of federal laws that are actually authorized by any of Congress’ enumerated powers. It’s also clear that the federal government can continue to operate a penal system without confining these people. Indeed, failure to confine them doesn’t even make it more difficult for the feds to continue to operate the system. It may actually make those operations easier by freeing up resources that would otherwise be expended on the confinement and care of the “sexually dangerous” former inmates.

Essentially, the government’s argument rests on the assertion that Congress has the power to engage in any “beneficial” activity that is in some way connected to something it can do under its enumerated powers, even if that “beneficial” activity does nothing to faciliate the actual implementation of those powers. Pretty much anything Congress might want to do could be justified on those grounds. As Comstock’s lawyer put it in his part of the oral argument, “the government’s argument essentially collapses into the notion, well, if it’s a good idea, it must be necessary and proper to do it.” If the Court accepts this reasoning, it would turn the Necessary and Proper Clause into a free-floating grant of unlimited power. It’s also worth pointing out that this is the main argument of the government’s brief as well. Kagan’s statement in the oral argument wasn’t just an aberration.

What will the Court decide? It’s hard for me to say. My tentative expectation is that the four liberal justices will vote with the government, since all but newly appointed Justice Sotomayor consistently opposed imposing any meaningful limits on Congress’ enumerated powers in the past (Sotomayor didn’t decide any major cases in this field during her time as a court of appeals judge). I would be surprised if Sotomayor broke with liberal orthodoxy on this particular point, even though she did ask Kagan some skeptical questions at oral argument. I also think that Thomas, Scalia, and Alito will vote for Comstock. In Alito’s case, this prediction is based on his strong pro-federalism record as a court of appeals judge, where he was one of the few lower court judges who voted to strike down a federal law banning machine gun possession. Scalia’s position in this case may be in tension with his extremely broad interpretation of the Necessary and Proper Clause in Gonzales v. Raich (which I discussed here). Still, the oral argument indicates that he is not likely to support the government. Thus, the outcome will probably come down to Kennedy and Chief Justice Roberts, neither of whom tipped his hand much today. To win, Comstock will have to get the support of both. I think the odds are against that. But stranger things have happened in the highest Court in the land.

This morning I went to the oral argument at the Supreme Court for United States v. Comstock, a potentially important federalism case that we’ve blogged about here before. The issue in the case is whether Congress has the Article I power to set up a system of civil commitment for sex offenders after their federal prison terms are over. The argument transcript is now up here.

Just based on my recollections of the argument, I thought SG Kagan made a much broader Article I power argument at oral argument than was made in the Government’s brief. Indeed, her argument struck me as sort of shockingly broad: She argued that the Constitution gives the federal government the general power “to run a responsible criminal justice system,” and that anything Congress plausibly thought a part of running a “responsible criminal justice system” was within the scope of federal power. Justice Scalia would have none of it, as you might imagine, but I couldn’t tell if he had any other votes. 

My guess from the argument is that the Court will uphold the statute on the narrower grounds offered by the Government’s brief. If I had to make a more specific guess on a vote and opinion assignments, I would guess that it ends up being 7–2, with Scalia and Thomas dissenting. And I’ll go out on a limb and say Chief Justice Roberts will assign the majority opinion to Alito or Kennedy. But these are obviously just guesses, which I’ll remind you of if I get it right but forget if I get it wrong.

Most defenses of the constitutionality of the health insurance mandate rely on Congress’ powers under the Commerce Clause, an approach I criticized here. Some, however, also claim that Congress has the power to enact it under the Tax and Spending Clause (e.g. — Jack Balkin), which gives Congress the power to To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” There are two problems with this argument: the health care mandate is not a tax, and it does not promote the general welfare.

The so-called “tax” in the proposed health insurance mandate is really just a penalty for failing to comply with the requirement to purchase health insurance. It is even referred to as a “penalty” in some versions of the bill. If any regulatory measure with a monetary penalty for refusal to comply is considered a tax, then many of Congress’ other powers under Article I of the Constitution would be superfluous, since Congress could essentially regulate anything that fell within the subject matter of this clause simply by imposing money penalties on those who fail to comply, coupled with prison sentences for those who refuse to pay the money. For example, the Spending Clause gives Congress the power to tax in order to “provide for the common Defence.” Yet elsewhere in Article I Congress is also given the power to “raise and support armies” and to regulate the land and naval forces. Even more importantly, a financial penalty for failure to obey the law is not seen as a “tax” in ordinary language either today, or at the time of the Founding. The text and original meaning of the Constitution therefore cut against the view that the health insurance mandate is a tax.

Even if the mandate does count as a tax, it still can’t be justified under the Tax and Spending Clause because it does not pay the national debt, provide for the common defense, or promote the general welfare of the nation. It’s pretty obvious that the mandate doesn’t fall within the first two of these categories. It can only be defended by arguing that it promotes the “general Welfare.” In cases such as South Dakota v. Dole, the Supreme Court has defined “general welfare” as more or less anything Congress says it means. This is badly mistaken for several reasons. The most important problem is that it renders the rest of the Spending Clause itself superfluous. If the General Welfare Clause gives Congress the power to tax and spend for any purposes it likes, surely that includes the power to do so for purposes of providing for “the common defence” and paying the national debt. After all, Congress could surely have a plausible belief that paying the national debt and defense spending promote the general welfare in some sense. Yet these powers are separately enumerated, which implies that the General Welfare Clause must not be interpreted so broadly as to make Congress’ other powers redundant. As James Madison put it in Federalist 41, the broad interpretation of the General Welfare Clause also makes much of the rest of Article I redundant, as well:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

If the General Welfare Clause doesn’t give Congress the power to spend money on whatever purposes it thinks might be beneficial, what does it mean? In my view, James Madison was roughly correct to argue that the Clause simply gives Congress the power to spend money for purposes of implementing its other powers under Article I (the rest of Article I merely gives Congress the power to promote those objectives through regulatory measures, but not through spending). For a modern defense of that view, see this article by John Eastman. In addition, I think it’s also plausible to argue that the General Welfare Clause gives Congress the power to spend for unenumerated purposes that really do provide universal or nearly universal benefits. The example I like to use when I teach constitutional law is asteroid defense (which may not be covered by the “common defense” section of the Spending Clause, because that provision may refer only to protection against enemies, as opposed to natural phenomena). Whatever its other virtues, the health care mandate certainly doesn’t qualify on this ground, since it clearly imposes net harms on many people, such as those who would prefer not to purchase health insurance, those who don’t wish to purchase coverage as broad as the mandate requires, and others.

Orin’s follow-up to my post arguing that there is no expert consensus on the constitutionality of the health care mandate suggests that there are virtually no real areas of consensus among constitutional law scholars, and that “you can pretty much always find someone to say a controversial law is unconstitutional.” It is probably true that you can always find at least one person to say that. But it’s not true that there are no areas of overwhelming consensus, including consensus on politically controversial issues. Expert consensus does not require absolute unanimity, merely an overwhelming preponderance of professional opinion that cuts across ideological lines. For example, there are virtually no serious legal scholars who endorse claims that the income tax is unconstitutional, despite its popularity among some right-wing political activists and others (e.g. — Wesley Snipes). Likewise, most liberal constitutional law legal scholars disagree with claims that the Iraq War was unconstitutional, even though most of them believe the war was immoral or unwise. A less important but still interesting example: a wide range of con law scholars across the political spectrum support the view that Congress has the power to force federal courts to let their oral arguments be televised, despite the vehement opposition of the Supreme Court justices. There are other areas where the consensus is less overwhelming, but still cuts broadly across ideological lines. For example, even many conservative legal scholars such as Jack Goldsmith and my frequent coauthor John McGinnis, rejected the Bush Administration’s claims to virtually unlimited wartime executive power, as did nearly all liberal and libertarian ones. 

The health care mandate doesn’t fall within either of these categories. The overwhelming majority of liberal scholars believe that it is constitutional, while the overwhelming majority of conservative and libertarian ones (especially those of us who study federalism or the Commerce Clause as our main focus) believe otherwise. Therefore, neither side can claim there is a cross-ideological consensus of experts supporting its position. This is noteworthy for several reasons, including the fact that there are important constitutional law issues where a broad expert consensus does exist.

UPDATE: The original version of this post misidentified Will Smith as the actor who claimed that the income tax is unconstitutional. In reality, it was Wesley Snipes. I apologize for the error.

In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal blogosphere. For example, Think Progress denounces Republican Senators Ensign and DeMint for citing only “right-wing think tanks” in support of their claims that the mandate is unconstitutional, and chides them for supposedly being unable to cite “a single judge, justice or reputable constitutional scholar who believes that health reform is unconstitutional.”

There certainly are prominent constitutional law scholars who agree with Baucus. But the claim that there is an overwhelming expert consensus on the subject is simply false. As co-blogger Jonathan Adler points out, Baucus mistakenly cited him as a scholar who agrees with the Democrats’ conclusions even though he actually believes that the mandate is not constitutional. The “right-wing think tank” study cited by Ensign and DeMint was actually coauthored by co-blogger Randy Barnett, one of the nation’s most prominent constitutional law scholars, and an expert on the original meaning of the Commerce Clause (the provision usually cited as authorizing Congress to impose the mandate). Richard Epstein of NYU and the University of Chicago is another prominent legal scholar (one of the ten most cited in the country) who believes that the mandate is unconstitutional.

I certainly wouldn’t put myself on the same plane as Jonathan, Randy, or Richard Epstein. But I’m a professional constitutional law academic, federalism and the Commerce Clause are among my areas of expertise, and I think the mandate is unconstitutional too.

It probably is true that more constitutional law scholars believe that the mandate is constitutional than believe the opposite. But this simply reflects the fact that most constitutional law professors, like most other academics, are overwhelmingly left of center. There are many controversial constitutional issues that split experts along ideological lines. In such cases, it is misleading to claim that there is an expert consensus merely because there are more experts on one side of a broader ideological divide than the other. Moreover, it’s worth noting that most of those left of center con law scholars who believe that the mandate is constitutional hold that view in large part because they believe that there are essentially no limits whatsoever to Congress’ ability to use its power to regulate “Commerce . . . among the several states” to control anything that has even a remote potential affect on commercial activity. If you believe that Congressional power is basically unlimited (except by constitutional individual rights), then the mandate becomes an easy case. That view, however, is seriously at odds with the text and original meaning of the Commerce Clause, for reasons that I discussed in my earlier post on the subject of the constitutionality of the individual mandate, and in this article.

UPDATE: I have edited the title of this post to make it clearer.

The AP reports several state attorneys general are looking into potential legal challenges to the health care bill (assuming it passes).

The top prosecutors in seven states are probing the constitutionality of a political deal that cut a funding break for Nebraska in order to pass a federal health care reform bill, South Carolina’s attorney general said Tuesday.Attorney General Henry McMaster said he and his counterparts in Alabama, Colorado, Michigan, North Dakota, Texas and Washington state — all Republicans — are jointly taking a look at the deal they’ve dubbed the “Nebraska compromise.”

“The Nebraska compromise, which permanently exempts Nebraska from paying Medicaid costs that Texas and all other 49 states must pay, may violate the United States Constitution — as well as other provisions of federal law,” Texas Attorney General Greg Abbott said.

I am quite sympathetic to the idea that special treatment of one state, or broader differential treatment of different states, for tax or regulatory purposes is problematic.  Such measures are significantly more so than traditional pork-barrel appropriations.  Federal laws should be laws of general application.  Yet I am unsure of the basis upon which such things could be challenged as unconstitutional, and the AP story linked above is sketchy on the details of what the various state AGs are planning.

Marie Gryphon of the Manhattan Institute, a generally conservative think tank with strong libertarian leanings, has an excellent report summarizing several dangers of the overexpansion of federal criminal law in the field of “regulatory crimes.” Here is the executive summary:

Since the dawn of Anglo-Saxon common law, conviction for committing a crime required evidence of malicious intent—that is, a conscious willingness to violate society’s norms by inflicting harm on people directly or by misappropriating or abusing their property. This stricture, which is often referred to as the blameworthiness principle, has tended to ensure that people who inadvertently and in good faith infringe laws and regulations will not suffer the stigmatization of a criminal conviction or face incarceration.

The economic and social policies of the 1930s and beyond came to undermine the blameworthiness principle. Standards of conduct promulgated to protect and advance the public’s health, safety, and welfare carried with them deterrents imported from the criminal law. Today, the regulatory state so thoroughly encompasses the range of commercial activity that businesses and businesspeople trying to reduce their costs, better their products, best their rivals—do all of the things, in short, on which survival in a market economy depends—run an ever-present risk of becoming ensnared in the criminal law. In many instances, the laws in question are so voluminous and loosely drafted that even a student of the legislation would not have fair notice of what conduct was prohibited and what was not.

Ordinary Americans have been convicted of crimes under overbroad federal laws because their employer unsuspectingly forwarded drugs that had been mislabeled by another company; because their adult children failed to properly record the itinerary of a camping trip in a public park while doing volunteer work for the family touring business; and because their computer servers stored copies of clients’ e-mails as an emergency precaution. Others have been judged criminals for such common failings as violating the terms of an employee handbook that prohibited otherwise legal behavior; lying about the details of a legal business transaction in response to media inquiries; and falsely claiming to be a talent scout in order to attract women.

Perhaps the most egregiously catch-all statutes are those governing mail and wire fraud. They assign criminal penalties to any “scheme or artifice to defraud” as long as the defendant could have foreseen that someone would use either the U.S. Postal Service or any form of electronic communication in (perhaps inadvertent) furtherance of the scheme as it unfolded. Yet these statutes lack any explicit language requiring a showing of harm, and the courts have not inferred or supplied such a requirement. Today criminal liability attaches to “any scheme or artifice to deprive another of the intangible right of honest services” via the above channels. Such vague and capacious language gives overzealous prosecutors a virtual carte blanche to indict.

Responsibility for this state of affairs lies with both Congress and the courts. The former should make clear what categories of actor laws like the fraud statutes contemplate. Congress should also insert into both existing and new laws, if they carry criminal penalties, the requirement of a showing of criminal intent. It should cease assigning criminal penalties to violations of agency-made regulations. And it should insert sunset provisions into all criminal laws.

The courts, as guardians of individual rights, have traditionally moved against due process abuses of the criminal law, but in modern times they have shown undue deference to the regulatory aims of Congress and federal agencies. The courts could begin by reading some standard of criminal intent into all laws carrying criminal penalties. And they should give criminal defendants the benefit of the doubt when the laws they have allegedly broken are ambiguous. The price for not doing so is not only the unjust punishment of many innocent people, but a chilling of the competitive spirit of those the law never touches. 

Several of the points made in Marie’s paper dovetail with those made by guest-blogger Harvey Silverglate in his important recent book. Marie herself is a libertarian legal scholar (we clerked at the Institute for Justice together back when we were in law school), while Silverglate is a prominent liberal criminal defense lawyer and civil libertarian. It isn’t yet the broad cross-ideological alliance that we need to confine the scope of federal criminal law within defensible limits, but it’s one more part of a good start.

UPDATE: I have previously criticized the expansion of federal criminal law here, here, and here.

I am alternately amused and saddened that one of the most widely read articles about federalism is my tongue in cheek 2007 National Review piece on federalism in Star Trek’s United Federation of Planets, based on an earlier VC post. Many more people seem to be interested in the fine points of federalism in fictional states than in the federal systems that exist in the real world. Just compare the number and quality of VC comments on my Star Trek federalism post (many based on an incredibly detailed knowledge of the fine points of Federation history) with those on virtually any VC post about real world federalism issues.

Aficionados of science fiction federalism will be happy to know that there is now an entire anthology devoted to stories about SF federations. I hope that the publication of this book will increase interest in real-world federalism among SF fans, but I’m not exactly holding my breath. 

For a somewhat more serious post about science fiction federalism than those linked above, see my very first foray into this subject, from back in 2006.

Most discussions about the constitutionality of an individual mandate in health care reform proposals have focused on whether such a mandate could be justified under the federal government’s enumerated powers in Article I, section 8. (See, e.g., these VC posts.)  Some (including me) have opined that, under existing case law, an individual mandate would probably pass muster.  For example, under existing precedent I think it likely the Court would see an individual mandate as a necessary and proper incident of comprehensive regulation of health care markets, as a mandate is necesary to prevent other aspects of health care reform (such as a ban on refusing to cover preexisting conditions) from driving up health care markets.  (Of course, were the Court to apply the original public meaning of the relevant provisions, an individual mandate would be out of bounds.)  But in focusing on Article I, Section 8, I wonder whether we’ve ignored another potential constitutional problem with provisions of Article I, section 9.

As I understand the current proposals, the individual mandate would operate as follows: A tax would be imposed on all individuals, and the tax would be offset by a credit for those who purchase or are otherwise covered by qualifying plans.  The constitutional problem would arise if this tax is considered a “direct tax.”  Why?  Because Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  “So if mandate is imposed through the tax code, and the provision operates as a “capitation” or “other Direct tax,” it would have to be apportioned.

Do the respective individual mandate provisions constitute direct taxes?  I’m not sure.  “Indirect” or so-called event taxes are not subject to apportionment under Article I, section 9, and income taxes were exempted from the apportionment requirement under the 16th Amendment.  So the question would be whether any tax imposed on those who fail to purchase qualifying health plans would constitute a “direct” tax, or whether they could be properly characterized as indirect or income taxes. From what I understand, the tax in the House bill is, at least for some individuals, based upon income up to a set threshold.  This might be enough to avoid the Article I, section 9 problem.  I have not yet had a chance to look at how the mandate provisions are written in the Senate bill.  I would be curious to read what others think about whether an individual mandate imposed through the tax code could run afoul of Article I, section 9.

My former student and current federal district court law clerk Josh Blackman has managed to get himself appointed to the exalted newly created position of official liveblogger of the Federalist Society National Lawyers Convention, which is taking place this Thursday through Sunday. Interested VC readers who can’t come in person may want to check out the liveblogging at Josh’s blog here. Among other things, Josh will probably liveblog the panel on federalism at which I will be speaking tommorrow, and a later panel that includes co-conspirator Randy Barnett.

This issue is well outside my areas of expertise. But commenters who know more about it than I do are welcome to debate the question of whether livebloggers should be considered members of the media, and if so whether they have the same legal rights as MSM reporters do.

Interested readers may want to check out the Federalist Society National Lawyers Convention, which will be held in Washington DC this week, Thursday to Saturday. At least two Conspirators will be speaking on various panels (Randy Barnett and yours truly). The full schedule is available here. There is still time to register. 

It’s only fitting that a Federalist Society convention should have a panel on federalism. So I will be speaking on the panel on “Federalism and the Economic Crisis” on Thursday, 3:45 to 5:15, along with fellow lawprofs Rick Hills (NYU), Malcolm Feeley (Berkeley, coauthor of an important recent book on federalism that I discussed here), and Dean John Eastman of Chapman Law School. 

By design, Fed Soc panels usually have liberal participants as well as conservative and libertarian ones, so you will see a wide range of perspectives represented, if you come. For example, Feeley (who believes that federalism is mostly useless in the modern United States) and Hills have very different views on federalism from mine. So, come one, come all.

CONFLICT OF INTEREST WATCH: I am a member of the Fed Soc Federalism and Separation of Powers Practice Group Executive Committee. This exalted position doesn’t carry any salary, nor is the Society paying me for speaking at the Convention or for writing this post — though I’m happy to accept contributions in this age of diminishing blogger advertising revenue.

Emory law professor Robert Schapiro has an op ed arguing that the federal mandate requiring individuals to purchase health insurance included in the current health care bill is both constitutional and consistent with federalism [HT: Alison Schmauch]. I agree that the mandate would probably be upheld under current Supreme Court precedent. However, like many other defenders of the constitutionality of the individual mandate, Schapiro doesn’t even consider the possibility that that precedent is wrong. For reasons I describe here, the mandate is inconsistent with the text and original meaning of the Constitution. Even if the Supreme Court decides that the mandate is constitutional, members of Congress and the president have an independent duty to assess the constitutionality of the legislation they vote on and sign. They all have taken oaths to uphold the Constitution, not merely what the Supreme Court says the Constitution means. If the courts rule that a particular congressional or executive action is unconstitutional, the other branches of government should obey. Otherwise, the courts would be unable to serve as an effective check on legislative and executive power. But no constitutional principle prevents Congress and the president from interpreting their authority more narrowly than the Supreme Court does.

In fairness to the congressional Democrats who support the health insurance mandate, it must be pointed out that the Republicans didn’t exercise constitutional self-restraint back when they controlled Congress. Republican bills such as the ban on partial birth abortion, the No Child Left Behind Act, and others, also pushed federal power well beyond the limits established by the text of the Constitution. And the Republicans made little or no effort to seriously consider constitutional limits on their power beyond those set by court decisions. For the Democrats to live within constitutional constraints that the Republicans ignored might be seen as a kind of unilateral disarmament. I hope that the two parties would agree on mutual disarmament, but I’m not holding my breath that any such thing is likely to happen. 

Schapiro also argues that the health care mandate is consistent with federalism in ways that go beyond merely respecting constitutional constraints:

Even if current law does permit a mandate, though, one might ask whether it should....

What the critics’ narrow arguments miss is the power of federalism illustrated by the health care reform efforts. Federalism promotes liberty and innovation by fostering a dialogue among local and national bodies, rather than by inviting courts to draw lines between them.

Massachusetts served as a laboratory with its own attempt to offer comprehensive health care, including an individual mandate. The federal government has learned from that experience. Moreover, the states will play an important role in implementing any national health care system.

What then should we make of state constitutional amendments purporting to bar a federal individual mandate? Such amendments show the value of federalism. State legislatures provide vital platforms for dissenting voices. Such amendments cannot block federal law. But the main point of federalism is to inform public debate, not to invite a court to terminate democratic dialogue.

The health care controversy demonstrates the continuing significance of federalism. Contrary to those impugning the constitutionality of mandates, though, it is a federalism of the people, by the people and for the people, not a federalism of the courts.

“Federalism” can mean many different things to different people. In my view, however, there are important beneficial aspects of federalism that go beyond merely “inform[ing] public debate.” Among these are policy diversity and competition between state governments, which enable people to “vote with their feet” for the policies they prefer. Preserving these benefits of diversity and competition requires enforcement of limits on the power of the central government. Otherwise, both will often be stifled through the imposition of one size fits all centralized solutions. If we want “a federalism of the people, by the people and for the people,” we need constitutional limits on the power of the central government.

If, as Schapiro assumes, the only important purposes of federalism are to facilitate “public debate” and promote experimentation, it’s not clear why we need federalism at all. Public debate can and does occur at the national level too. Indeed, the public and the media usually pay much more attention to proposed federal legislation than to state policies. And a unitary central government can still engage in policy experiments, including ones whose geographic scope is limited. For example, it could establish an experimental health care policy that is limited to one part of the country and then impose it on the rest of the nation if the results prove that the experiment “worked.”

UPDATE: I have eliminated a typo and some minor infelicities that were in the original version of this post.

Many critics of the War on Drugs, myself included, were happy to see the Obama adminstration’s new memo urging federal prosecutors not to pursue cases against medical marijuana users in states where such use is legal under state law. The administration’s policy could potentially offset some of the negative effects of the Supreme Court’s 2005 decision in Gonzales v. Raich, which held that Congress’ power to regulate interstate commerce gave it the authority to forbid the possession of medical marijuana even in cases where the marijuana in question had never been sold in any market or left the state where it was grown (I criticized Raich in this article).

However, as Jacob Sullum points out, the policy may not make much difference in practice, especially in California (the state with by far the biggest concentration of medical marijuana cases). The key sticking point is that the memo only applies to uses of medical marijuana that are in “clear and unambiguous compliance with state law”:

During his presidential campaign, Barack Obama repeatedly promised to stop federal interference with state laws that allow the medical use of marijuana. On Monday the Justice Department seemed to deliver on that promise with a memo telling U.S. attorneys to avoid prosecuting people who use or provide medical marijuana in compliance with state law. 

The new policy sounds a lot better than the Bush administration’s refusal to tolerate any deviation from federal law in this area. But because of disagreements about what compliance with state law requires, it may not make much difference in practice. 

This week’s memo . . . tells federal prosecutors in the 14 states that recognize cannabis as a medicine they “should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” 

In California especially, that phrasing leaves a lot of wiggle room for federal meddling. Last fall the California Supreme Court rejected the idea that medical marijuana suppliers are legal as long as their customers designate them as “primary caregivers.” Patients who are not up to growing marijuana on their own can still organize as “collectives” or “cooperatives,” but local officials disagree with state officials and each other about what that means. Los Angeles County District Attorney Steve Cooley, for example, maintains that state law does not permit over-the-counter sales, which would make virtually all of the 800 or so medical marijuana dispensaries in L.A. illegal. 

Given these disagreements at the state and local level, it will usually be difficult to prove that any given medical marijuana user is in “clear and unambiguous compliance state law,” as opposed to merely arguable or probable compliance with it. 

It’s also worth noting that the memo doesn’t actually tell prosecutors to forego pursuing cases against even those distributors and users who are in “clear and unambiguous compliance.” It merely says that “as a general matter,” such prosecutions are “unlikely to be an efficient use of limited federal resources.” A prosecutor who thinks that a given case is an exception to this generalization or believes that his office has some excess or underutilized “resources” might still pursue such cases. The memo also outlines numerous situations where prosecution of medical marijuana distributors and users is still encouraged:

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

• unlawful possession or unlawful use of firearms;
• violence;
• sales to minors;
• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
• amounts of marijuana inconsistent with purported compliance with state or local law;
• illegal possession or sale of other controlled substances; or
• ties to other criminal enterprises.

Several of these — especially that dealing with “financial and marketing activites inconsistent with the terms, conditions, or purposes of state law” are extremely broad. Almost any paid transaction between a medical marijuana user or a dealer might be described as one involving “financial gains” or “excessive amounts of cash” inconsistent with “purported compliance with state or local law.” The memo gives no guidelines for determining how much money is “excessive,” nor does it specify how to tell the difference between permissible marketing activites and forbidden ones. Given that compliance with state law much be “clear and unambiguous,” it would not be hard for a prosecutor to go after virtually any medical marijuana distributor.

The memo is still a step forward from the Bush Administration’s aggressive pursuit of medical marijuana cases; for example, it might at least give cover to US attorneys who are already inclined not to pursue these cases, but were afraid to follow their inclinations previously. But it falls a long way short of actually ending federal prosecution of medical marijuana cases, even in states where medical marijuana use is permitted by state law.

The AP reports that the Justice Department will issue a memo formally establishing a new policy regarding the federal prosecution of marijuana possession and sale in states that have decriminalized medical marijuana.

The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new policy guidelines to be sent to federal prosecutors Monday.Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state laws. . . .

A three-page memo spelling out the policy is expected to be sent Monday to federal prosecutors in the 14 states, and also to top officials at the FBI and the Drug Enforcement Administration.

The memo, the officials said, emphasizes that prosecutors have wide discretion in choosing which cases to pursue, and says it is not a good use of federal manpower to prosecute those who are without a doubt in compliance with state law. . . .

At the same time, the officials said, the government will still prosecute those who use medical marijuana as a cover for other illegal activity. The memo particularly warns that some suspects may hide old-fashioned drug dealing or other crimes behind a medical marijuana business.

In particular, the memo urges prosecutors to pursue marijuana cases which involve violence, the illegal use of firearms, selling pot to minors, money laundering or other crimes.

As I’ve noted on The Corner, assuming this is an accurate account of the guidelines, this is a positive step toward a more rational drug control policy and greater respect for state-level policymaking.

The Justice Department has to set prosecutorial priorities, as there are more federal crimes on the books than federal prosecutors can ever hope to prosecute.  The aim should be to focus federal resources in those areas where there is a distinct federal interest, or where the federal government has a comparative advantage of state and local law enforcement.  Where federal law conflicts with state law, prohibiting activities state laws allowed, federal efforts should still focus on those instances of alleged lawbreaking where there is a distinct federal interest, including spillover effects on neighboring jurisdictions.

The federal government has a legitimate interest in controlling interstate drug trafficking, but no particular interest in prosecuting those who seek to provide medical marijuana to local residents pursuant to state law.  So it only makes sense for the Justice Department to tell federal prosecutors to focus their efforts on those who are not in compliance with state law, such as those who use medical marijuana distribution as a cover for other illegal activities, interstate drug trafficking in particular.  California should be free to set its own marijuana policy, but the federal government retains an interest in preventing California’s choice from adversely affecting neighboring states.

Ideally, the federal government would treat marijuana like alcohol, retaining a federal role in controlling illegal interstate trafficking but leaving each state entirely free to set its own marijuana policy, whether it be prohibition, decriminalization, or somewhere in between.  Fourteen states have already decriminalized medical marijuana to some degree.  Were the federal government to allow states even greater autonomy, I suspect more would follow. I don’t expect the Obama Administration to promote such legislation, but it would represent the proper approach to marijuana use, medical and otherwise.  Nonetheless, the new guidelines appear to be a step in the right direction.

UPDATE: The memo is now available on the DOJ site in HTML and PDF.

Kimberly Strassel’s column in today’s WSJ details several provisions of the Baucus health care reform bill outline that give special treatment to certain states to reduce the impact of health care reform.

A central feature of the Baucus bill is the vast expansion of state Medicaid programs. This is necessary, we are told, to cover more of the nation’s uninsured. The provision has angered governors, since the federal government will cover only part of the expansion and stick fiscally strapped states with an additional $37 billion in costs. The “states, with our financial challenges right now, are not in a position to accept additional Medicaid responsibilities,” griped Democratic Ohio Gov. Ted Strickland.

Poor Mr. Strickland. If only he lived in . . . Nevada! Senate Majority Leader Harry Reid, who is worried about losing his seat next year, worked out a deal by which the federal government will pay all of his home state’s additional Medicaid expenses for the next five years. Under the majority leader’s very special formula, only three other states—Oregon, Rhode Island and Michigan—qualify for this perk, on the grounds, as Mr. Reid put it recently on the Senate floor, that they “are suffering more than most.” . . . .

As an Ohio resident, this is one more reason to be concerned about the bill.  But wait, there’s more, including a differential threshold for the 40 percent tax on “luxury” health care plans.

Special treatment of politically important interests is nothing new.  It’s business as usual in Washington, D.C.  Nonetheless, these provisions are worth watching.  If health care reform forces states to assume $30-billion-plus in additional Medicaid expenses, it could exacerbate tensions between the states and Washington, D.C., and could even produce some interesting constitutional litigation.

The federal government cannot force states, as states, to participate in federal programs.  It can, however, make them offers they can’t refuse, by offering substantial financial support and then imposing various requirements on the receipt of federal funds.  At some point, however, the cost isn’t worth the candle, and a state may be tempted to walk away.  Given the fiscal mess so many states are in already, this sort of reform could push one or more states over the edge, prompting a decision to forgo relevant federal funding and abandon federal Medicaid responsibilities.  This is an unlikely scenario — I would expect some sort of “fix” to emerge in Washington, D.C. before it reached this point — but it looks increasingly possible.  Query: Were a state to walk away from Medicaid, how would the federal government respond? And would litigation ensue?

Another, less extreme and therefore more likely, scenario would be for a state to challenge the conditions that are imposed upon the states in either the health care reform bill or subsequent implementing regulations.  Under South Dakota v. Dole, any conditions imposed upon the receipt of fedeal funding must be clear and unambiguous.  The federal government may not impose additional conditions after the fact, nor may federal agencies interpret amgbiguous statutory language so as to alter or increase recipient state obligations.

There are at least two reasons why litigation in this area seems possible, if not likely.  First, this has been the limitation on conditional spending federal courts have been most willing to enforce.  (See, e.g., Pontiac City School District v. Spellings (6th Cir., 2008), a challenge to requirements under the No Child Left Behind Act reheard en banc last December.)  Second, given the amount of money at stake, states may be particularly sensitive to federal alteration of Medicaid program requirements during the implementation of any reforms.

The bottom line is that it will be worth watching how health care reform legislation affects the states.  This will have political consequences, to be sure, but it could also set the stage for some interesting legal conflicts.

For those who are at Yale or in the New Haven area, tommorrow I will be speaking on the “Localism and Democracy” panel at the Constitution in 2020 conference. The organizers were kind enough to invite me to provide a measure of ideological balance to a conference that is — quite understandably — primarily devoted to considering the future of liberal constitutional theory. My panel will be at 4:30, and I will be appearing with Ernest Young (Duke), Rick Schragger (Virginia), Ethan Leib (UC Hastings), and Judith Resnik (Yale, author of the chapter on federalism in The Constitution in 2020 book). The theme of my talk is described in my post at the Constitution in 2020 Blog.

On a personal note, it will be a bit strange to give a talk in Yale Law School’s Room 127, a place where I spent so much time sitting on the other side of the podium, as a student.