Archive | Federalism

Liveblogging the Federalist Society National Lawyers Convention

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. [...]

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Federalist Society National Lawyers Convention This Week

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. [...]

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Health Care and Federalism

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 [...]

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How Much of a Difference will the Administration’s New Policy on Prosecuting Medical Marijuana Cases Make?

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

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A Step Toward Sanity on Medical Marijuana

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 [...]

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Socking It to (Some of) the States

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 [...]

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My Talk at the Constitution in 2020 Conference

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. [...]

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