Archive | Federalism

Justice Kennedy’s Federalism Rationale for Refusing to Perform Marriage Ceremonies

Supreme Court Justice Anthony Kennedy recently explained that he does not perform marriages because of concerns about the implications for federalism [HT: Josh Blackman]:

Justice Kennedy has written all three of the high court’s landmark opinions respecting gay rights, from Romer v. Evans in 1996– which struck down a Colorado voter initiative that abolished antidiscrimination protections based on sexual orientation –to U.S. v. Windsor in June, which invalidated the federal Defense of Marriage Act, the 1996 law forbidding the federal government from recognizing same-sex marriages.

However, speaking earlier this month at the University of California Washington Center, Justice Kennedy said the affianced — whether gay or straight –would have to find someone else to do the honors.

“I have a rule: I don’t do weddings,” Justice Kennedy said. The reason has to do more with another doctrine he has championed: federalism.

“I have a theory that federal judges can’t take authority from state laws,” including those that regulate family relations, he said.

Still, on this matter, the Supreme Court’s swing vote emphasized his own judicial modesty. “I can’t figure out whether it’s a valid theory or not,” he said.

Like Kennedy himself, I find it hard to justify this theory. Federal judges “take authority from state laws” in many cases, such as when they exercise ancillary or pendant jurisdiction over state law causes of action, or when they hear “diversity” cases dealing with state law (when the plaintiff and defendant reside in different states). Federal judges’ procedural authority to hear these cases comes from federal law. But the substantive law that authorizes the lawsuit in the first place comes from the states. More generally, I don’t see how federal judges performing weddings undermines federalism either by allowing states to intrude on federal power or vice versa.

In the post [...]

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My Response to Heather Gerken’s Comment on Democracy and Political Ignorance

Cato Unbound has posted my response to Yale Law School Professor Heather Gerken’s thoughtful critique of my book Democracy and Political Ignorance: Why Smaller Government is Smarter. Over the next day or two, they will also post my response to the insightful commentaries by Sean Trende of RealClearPolitics and political theorist Jeffrey Friedman. The conversation will continue over the next couple weeks, as each commentator will have the opportunity to respond further to me or to each other, or to raise new issues related to the book and my lead essay.

Here is a brief excerpt from my response to Prof. Gerken:

Gerken raises two important potential criticisms of my argument that people make better decisions through foot voting than ballot box voting. First, she contends that knowledge of the two major parties’ positions can enable otherwise ignorant voters to make good decisions at the ballot box. Second,…. she worries that foot voting may often be too difficult because of moving costs.

These are legitimate points, and I address both at some length in my book… On balance, however, neither seriously undermines the informational advantages of foot voting over ballot box voting….

Gerken interestingly contrasts my “fox”-like view that informed voting requires knowledge of a range of issues with the “hedgehog” view that all voters need to know is the difference between the two parties. It’s worth noting that Philip Tetlock’s important research on the predictive accuracy of policy experts shows that “fox” experts who take many variables into account make far more accurate judgments than “hedgehogs” who focus only on one or two big ideas.[5] Voters obviously don’t need to know as much as policy experts. But narrowly focused hedgehog decisionmaking is unlikely to work well even for them. It is especially problematic in a

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A Market for State Borders

Following up on my earlier post on parts of a state seceding to join another state, I’d like to call attention to a neat article by Joseph Blocher, coming out in the University of Pennsylvania Law Review, entitled “Selling State Borders.” It suggests such political redrawing can be accomplished through sales between states, and shows how common such deals already are. [...]

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How Best to Secede from a State

Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to gain leverage for their preferred policies within their state governments.

These secessionists have an advantage over those seeking outright separation from the Union – and a big disadvantage. On one hand, they don’t have to deal with the Confederacy/slavery baggage that tends to confound discussions of secession in the U.S. On the other hand, the Constitution, Art. IV, sec. 3 clearly forbids the creating a new state in the territory of an existing one without the latter’s consent, and the consent of Congress. That is a high bar, practically insurmountable.

But there may be an easier way for those who seek to secede from their state – instead of creating a new “51st” state, secede to join an existing state. The Constitution’s requirement of home-state and congressional consent only clearly applies to the creation of a “new state”:

… no new State 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 language of the provision is a bit unclear. Does the second clause above (“nor any State be formed”) refer back to, and continue the discussion, of “new states”? That would mean that the provision does not govern the transfer of territory from one state to another. The interpretation probably depends on what it means for [...]

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Why the Obamacare Case May not be “Settled Law”

Indiana University law professor Gerard Magliocca has an excellent Washington Post column on why the Supreme Court’s decision largely upholding the constitutionality of Obamacare may not be fully “settled law”:

The Affordable Care Act was passed by Congress, signed by President Obama, upheld by the Supreme Court and reconfirmed by the president’s reelection. Many of its provisions have gone into effect. As Democrats have taken to saying, it is the law of the land.

But contrary to what the president suggested in the Rose Garden this past week, that does not mean Obamacare is “settled, and it is here to stay.” And it is not illegitimate for Republicans to use every lawful means at their disposal to stand in its way…

Lawyers use the term “settled law” to describe court decisions that clearly establish a rule or a doctrine. Yet settled law also refers to legal actions that are accepted by society. Consider two of the most famous Supreme Court decisions: Brown v. Board of Education, which desegregated public schools, and Roe v. Wade, which created the constitutional right to have an abortion. Both of these cases are “the law of the land.” They are binding on all courts in the United States. Only one of them, though, is settled in the broader sense of that phrase. It is perfectly acceptable for politicians, judges and ordinary citizens to attack Roe and call on the Supreme Court to overturn it. It is totally unacceptable to criticize Brown in 2013.

A statute or court opinion becomes settled law when there is a broad consensus that it is just.

Gerard enumerates a wide range of reasons why the Supreme Court’s ruling in NFIB v. Sebelius falls short of being fully settled. But the core insight is that there is no bipartisan [...]

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How the EU Continues to Fund Settlements in Occupied Territory

The EU recently issued guidelines blocking research and other grants to Israeli institutions with activities (archeological digs, etc.) across the Green Line. In the yesterday’s Jerusalem Post I reveal that the EU continues to actively fund settlements in occupied territory, against their own understanding of international law:

Under guidelines prepared earlier this summer, euros would not be allowed to go to Israeli entities located cross the Green Line – or to those that have any operations there. All Israeli entities applying for funding would have to submit a declaration that they do not have such operations.

Europe claims that such a move – unparalleled in its dealings with any other country – is mandated by international law. The EU does not recognize Israel’s sovereignty over the territories, and thus has an obligation to keep its money from going there. Those who celebrated the move said that Israel is finally paying the international price for its occupation.

Yet it turns out that despite the guidelines, the EU still knowingly and purposefully provides substantial direct financial assistance to settlements in occupied territory – in Turkish-occupied Northern Cyprus, that is. So the EU funds the occupation of an EU member state. . . .

Projects include study abroad scholarships for students at the numerous Northern Cyprus universities (imagine such funding for students at Ariel University!); developing and diversifying the private sector through grants to small and medium- sized businesses; various kinds of infrastructure improvements (telecom upgrades, traffic safety, waste disposal); community development grants, funding to upgrade “cultural heritage” sites, and so forth. They even put on a concert.

Amazingly, this information has never been discussed in the debate over the EU action. On the contrary, academic supporters of the EU measure have falsely stated that “There is no significant difference in the [...]

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DOMA and Dignity

Why is the Defense of Marriage Act unconstitutional?  Here are two propositions that United States v. Windsor might be thought to stand for:

(1) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional intrusion on federalism (a structural claim); or

(2) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional infringement on a substantive right, e.g., the right to marry (a liberty claim).

These are among the many plausible interpretations of Windsor, but some explanations are more plausible than others.  After consuming several pages discussing the interests of the states in controlling family law, Justice Kennedy expressly states that the Court is not relying strictly on federalism.  Surely a statement in a decision suggesting what it means should have some bearing on what it means.  The Chief Justice, in dissent, thinks federalism is nevertheless critical to the result and would help to distinguish the case from one that involved a claimed constitutional right to state recognition of same-sex marriages.  He might be right about that.  But the Chief Justice’s explanation may also be more a hope about the limited consequences of an alternative Windsor than a reading of the actual Windsor (see Justice Scalia’s dissent).

As for the second proposition, the Court certainly mentions liberty several times.  And the context is one in which the plaintiffs claim that “liberty” protects a right to have their marriages fully recognized by government.  The Court sets for itself the task of deciding “whether the resulting injury and indignity is a deprivation of the liberty protected by the Fifth Amendment.”  Slip op. at 19.  It concludes that Congress “cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.”  Op. at 25.  But my sense is that reliance on [...]

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Steven Teles on “Kludgeocracy” and the Role of Government in Society

In the fall issue of National Affairs, Johns Hopkins political scientist Steven Teles has an interesting article on what he dubs the problem of “kludgeocracy” in American government:

In recent decades, American politics has been dominated, at least rhetorically, by a battle over the size of government. But that is not what the next few decades of our politics will be about. With the frontiers of the state roughly fixed, the issues that will define our major debates will concern the complexity of government, rather than its sheer scope.

With that complexity has also come incoherence. Conservatives over the last few years have increasingly worried that America is, in Friedrich Hayek’s ominous terms, on the road to serfdom. But this concern ascribes vastly greater purpose and design to our approach to public policy than is truly warranted. If anything, we have arrived at a form of government with no ideological justification whatsoever.

The complexity and incoherence of our government often make it difficult for us to understand just what that government is doing, and among the practices it most frequently hides from view is the growing tendency of public policy to redistribute resources upward to the wealthy and the organized at the expense of the poorer and less organized. As we increasingly notice the consequences of that regressive redistribution, we will inevitably also come to pay greater attention to the daunting and self-defeating complexity of public policy across multiple, seemingly unrelated areas of American life, and so will need to start thinking differently about government.

Understanding, describing, and addressing this problem of complexity and incoherence is the next great American political challenge. But you cannot come to terms with such a problem until you can properly name it. While we can name the major questions that divide our politics

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The Obvious But Underappreciated Point About Federal Power and Equality

Mike Rappaport has a post at the Liberty Law Blog making a seemingly straightforward but surprisingly underappreciated point: There is good reason to think that the Fourteenth Amendment’s equality requirement was not originally meant to apply to the federal government.

People frequently try to challenge various originalist views about equality by pointing to the actions of the Reconstruction Congress. Affirmative action must be permitted by the original meaning of the Fourteenth Amendment, they will say, because the Reconstruction Congress enacted race-conscious legislation. (Although actually it did so much less than is commonly supposed.) Or the original meaning of the Fourteenth Amendment must have permitted school segregation, they will say, because Congress did not stop segregation in the DC schools.

To be fair, some originalists are no better about this. Justices Thomas and Scalia both joined the Court’s opinion in Adarand, which imposed strict scrutiny on federal affirmative action, even though Justice Scalia had previously given some perfectly plausible reasons for thinking that the federal government has more freedom to engage in race-conscious decision making than states do. The Scalia/Thomas vote in Adarand could be justified on a certain attitude toward precedent, but they can be criticized for not explaining or justifying it.

Of course there is judicial precedent reverse-incorporating the equal protection clause against the federal government; but originalists often discuss original meanings that are currently in conflict with precedent. And there are even some quasi-originalist arguments justifying an equality requirement for the federal government. Co-blogger David Bernstein has discussed the Due Process Clause; Ryan Williams has discussed the Citizenship Clause; Gary Lawson, Guy Seidman, and Rob Natelson have discussed the backdrops of fiduciary law. These views might even be right (although I do not think so). But among originalists, they are the minority [...]

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Is there a Generational Divide over “Judicial Restraint” Between Reaganites and Libertarians?

Various commentators such as Garrett Epps, Mark Tushnet, and recent guest-blogger Josh Blackman argue that there is a generational divide among right of center jurists between Reaganite advocates of “judicial restraint” and later, more libertarian figures who are less willing to defer to legislatures and more eager to strike down laws they consider unconstitutional. They argue that this divide is exemplified by the the Supreme Court’s decision in NFIB v. Sebelius, where Chief Justice John Roberts voted to uphold the individual health insurance mandate as a tax, while other conservative justices voted to strike it down. As Epps puts it, Roberts voted the way he did because “his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama.” As a veteran of the Reagan-era Justice Department, Roberts supposedly imbibed the ideology of judicial restraint, from which later conservatives have departed.

I. Federalism and Reagan’s Judicial Appointees.

This thesis fundamentally misconceives the dominant constitutional vision of the Reagan administration and most of the jurists associated with it. In the individual mandate case, both of the actual Reagan appointees still on the Court – Justices Antonin Scalia and Anthony Kennedy – voted to strike down the law. If they had still been on the Court, Reagan’s two other appointees, Sandra Day O’Connor and William Rehnquist (whom Reagan promoted to Chief Justice), would likely have voted the same way, based on their longstanding advocacy of strong judicial enforcement of limits on federal power and their dissents in Gonzales v. Raich (in which case Scalia and Kennedy voted to uphold the law).

Reagan also nominated numerous leading libertarians and pro-federalism conservatives to the lower courts, including such well-known libertarian and libertarian-leaning jurists as Alex Koziniski, Douglas Ginsburg, Stephen Williams, Jerry Smith, and [...]

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The Rise of Movements Seeking to Create New States Through Secession

Over the last week, secession movements seeking to create new states have made some progress in northern California and rural Colorado. Back in 2011, I wrote about the secession movement in southern California. All three movements are examples of rural jurisdictions seeking to secede from state governments they perceive as dominated by urban interests and values.

The Colorado movement strikes me as more serious than either of the California ones. But none of the three is actually likely to succeed, given that the Constitution forbids creating new states out of the territory of existing ones, without the latter’s consent. In my 2011 post on the southern California secession movement, I gave some reasons why we should consider making state secession easier to achieve:

Seceding from a state should not be easy. But it also should not be as impossibly difficult as the Constitution currently makes it. Some of our present states are probably too big, and California is perhaps the best example of this phenomenon.

Normally, dysfuctional state policies are constrained by the possibility of “voting with your feet.” If a state imposes overly high taxes, adopts flawed regulations, or provides poor public services, people and businesses will tend to migrate elsewhere, thereby incentivizing the state government to clean up its act in order to preserve its tax base….

In California’s case, however, this dynamic has been undercut by the state’s size and favorable geographic location. Because California is extremely large and controls most of the warm-weather coastal territory on the West Coast, people have been willing to put up with a lot of bad policies for the opportunity to live there. Competitive pressure on the state government would be much greater if there were three or four states occupying California’s present territory instead of one…

[W]e would

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My JOTWELL Post on Will Baude’s “Rethinking the Federal Eminent Domain Power”

In my capacity as one of the editors for the constitutional law section of JOTWELL (a sited devoted to reviewing important new legal scholarship), I review an important new constitutional law article every summer. I usually try to pick articles that are 1) within one of my fields of expertise (primarily federalism and property rights), 2) make a major contribution, and 3) are written by younger scholars who are not yet among the most famous people in their field, and therefore exposure at JOTWELL could help get their work the attention it deserves. This year, I chose co-blogger’s Will Baude’s excellent recent work, “Rethinking the Federal Eminent Domain Power.” I should note that I picked the article and wrote the review long before I knew that Will was going to become one of my Volokh Conspiracy co-bloggers (new VC bloggers are chosen by senior Conspirator Eugene Volokh, and he doesn’t always inform me of his decisions ahead of time).

Here is an excerpt from my review:

One of the most widely accepted truisms of American constitutional law is that the federal government has the power to condemn property through eminent domain. In modern times, even scholars and jurists who generally take a narrow view of federal power—myself included, until I read this pathbreaking article—did not question this idea. Yet, as William Baude shows, the conventional wisdom at the time of the Founding, and for many decades thereafter, was exactly the opposite: the federal government did not have the authority to condemn property within the territory of state governments. It could only do so in the District of Columbia and the federal territories. Baude’s research has important implications for the constitutional law of both federalism and takings….

I have a few reservations about Baude’s excellent analysis. Most important is

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Does Congress Have the Power to Enact A General Ban on the Use of Bugging Devices?

Since 1968, federal law has prohibited the use of bugging devices — secret microphones — to record private conversations. Here’s the relevant text:

[A]ny person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any . . . oral . . . communication [is guilty of a crime and commits a civil violation] [18 U.S.C. 2511(1)(a)]

Here are the definitions of two key terms, “oral communication” and “intercept”:

“oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation [18 U.S.C. 2510(2)]

“intercept” means the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device [18 U.S.C. 2510(4)]

The basic idea is to criminalize listening in on someone’s private conversation using a recording device. The law applies both to the government and to private parties, and it provides for both criminal and civil remedies. On the whole, it’s a sensible criminal and civil law.

But is it constitutional? Does Congress have the power to broadly prohibit the use of bugging devices? I don’t think it does. In this post I’ll explain why.

It’s helpful to start in a somewhat unusual place, with the legislative history. It’s helpful because it shows that the drafters of this provision knew perfectly well that they were on constitutional thin ice with this law. Here’s the remarkable discussion from the 1968 Senate Report:

The broad prohibition of [18 U.S.C. 2511(1)(a)] is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress

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