In a recent post on Prawfsblawg, NYU lawprof Rick Hills – a major federalism scholar – argues that federalism concerns justify strictly limiting federal court enforcement of constitutional property rights: SCOTUS’ decision yesterday in Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection once more illustrates the axiom already established by many other decisions: […]
Archive | Federalism
Guns + Medical Marijuana
From Willis v. Winters, decided today by that wild and crazy Oregon Court of Appeals: Respondent, the Jackson County Sheriff, appeals a judgment of the circuit court that ordered him to renew a concealed handgun license issued to petitioner, a medical marijuana user. The sheriff concedes that petitioner met the requirements for issuance of a […]
Would Repealing the Seventeenth Amendment Curb Federal Power?
Many conservatives and libertarians believe that the 1913 adoption of the Seventeenth Amendment – which requires that senators be elected by popular vote, rather than by state legislatures – was a great mistake that led to a vast expansion of federal power. As Gene Healey puts it in a recent op ed, they assert that […]
Libertarianism, Federalism, and Racism
The firestorm kicked off by Rand Paul’s remarks has again rekindled the debate about the relationship between libertarianism, federalism, and efforts to combat racial discrimination. There is nothing unlibertarian about supporting federal efforts to combat racial discrimination by state governments. At the same time, however, libertarians (and others) should not assume that unconstrained federal power […]
Charles Fried on the Constitutionality of the Health Care Mandate
In this recent op ed, Harvard constitutional law professor Charles Fried argues that the Supreme Court’s recent decision in United States v. Comstock proves that the Obama health care bill’s mandate requiring individuals to buy health insurance is constitutional: A recent 7-2 Supreme Court decision affirming the constitutional power of Congress to allow the indefinite […]
The Bybee Immigration Memo
Yesterday’s Washington Post reported that the Obama Administration’s potential legal challenge to Arizona’s new immigration law is complicated by a 2002 Justice Department memo that suggests states have the authority to enforce federal immigration law. The document, written in 2002 by the Justice Department’s Office of Legal Counsel, concluded that state police officers have “inherent […]
Bad News for Federalism? Some Preliminary Reflections on Comstock
I tend to agree with Eugene that today’s Supreme Court decision in United States v. Comstock is very bad news for constitutional federalism. However, the ultimate import of the decision is hard to gauge because the majority opinion is ambiguous on at least one crucial point: whether Necessary Proper Clause cases are governed exclusively by […]
A Few Thoughts on the Comstock Case
Earlier today, I blogged the syllabus of the majority opinion, and noted my earlier thoughts that the statute is likely constitutional. I mentioned that I might have more thoughts after I read the opinions, so here are those thoughts — but note that they’re brief and rather shallow, since I’m not a scholar of federal […]
Federal Government Wins Comstock
This morning the Supreme Court handed down its opinion in United States v. Comstock, a challenge to the federal government’s authority to civilly commit a “sexually dangerous” federal prisoner beyond the time of his sentence. The U.S. Court of Appeals for the Fourth Circuit held that the federal government lacked such authority within its enumerated […]
Taking ObamaCare Challenges Seriously
The New York Times might be the last place one would expect a news story suggesting that constitutional objections to the recently enacted health care reform law should be taken seriously, but that’s just what we got today. The story focuses on the lawsuit by twenty state attorneys general, among others, against the health care […]
Arizona Revises Immigration Law
Well that was quick. In response to criticism, Arizona has made a few changes to its controversial illegal immigration law. The LA Times reports: The initial law, signed by Gov. Jan Brewer last week, required police to determine a person’s immigration status if officers formed a reasonable suspicion about their legality during any “lawful contact.” […]
Debate on constitutionality of Obamacare
By David Kopel on April 30, 2010 1:03 am in Congress, Constitutional History, Economic LIberties, Federalism, Health Care, Supreme Court
Held on April 28 at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was me. The video is here. (Video and audio are often out of sync […]
Feds May Sue Arizona Over Immigration
Today’s Washington Post reports that the Justice Department is considering whether to challenge Arizona’s new immigration law. A key legal ground being considered, officials said, is the doctrine of “preemption” — arguing that the state’s law illegally intrudes on immigration enforcement, which is a federal responsibility. The White House probably will make the final call, […]
Kobach on Arizona’s Immigration Law
UMKC law professor Kris Kobach, who helped author Arizona’s controversial immigration law, defends the law in today’s NYT. According to Professor Kobach, the law “prohibits the harboring of illegal aliens and makes it a state crime for an alien to commit certain federal immigration crimes. It also requires police officers who, in the course of […]
Is the Arizona Immigration Law Preempted?
There’s no shortage of opinions on the legality of Arizona’s strict new immigration law. Over on the NYT‘s “Room for Debate” blog, Steven Camarota of the Center for Immigration Studies argues the law “is designed to mirror federal immigration law” and thereby avoids any preemption problem. The ACLU’s Vivek Malhotra, on the other hand, argues […]