Entries categorized "Federalism"

We're All Federalists (Sometimes)

Speaking of a new federal firearms law, someone said the following: "The legislation violates federalism and separation of powers constraints ...."  Was it someone arguing against the Brady Act, which imposed a federal waiting period on all handgun sales.  Perhaps it was someone arguing the federal "assault weapons" ban, which outlawed hundreds of firearms?  My guess is that the speaker is Robert Levy of the Cato Institute, or Second Amendment god Stephen Halbrook.  Bzzt - wrong!  The speaker was none other than Sayre Weaver, legal director of the Educational Fund to Stop Gun Violence of Washington.  The context?

Ms. Weaver was criticizing a new federal law that immunizes gun makers from being sued.  State and local governments in blue states had begun suing gun manufacturers, and the lawsuits threatened to drive the gun industry out of business.  In other words, lawsuits in blue states would keep guns out of red states.  Whether the Protection of Lawful Commerce in Arms Act of 2005 violates federalism is an interesting issue: here is a link to the debates.  What is amusing to me is that those who intend to challenge the law are now friends of federalism.

Where was Ms. Weaver and her pro-gun-prohibition organization during the Brady Act debates?  Was she a federalist then?  Looking at her organization's website, I see that they support federal regulation of everything firearms-related, except federal regulation that would end gun-related lawsuits.

Poor federalism! 


Gonzales v. Oregon

This week's Legal Affairs Debate Club discusses the physician-assisted suicide case, Gonzales v. OregonGonzales v. Oregon can be viewed through two lenses - technical or philosophical.  First, did the Attorney General properly interpreted the Controlled Substances Act, which allows doctors to prescribe medication for "legitimate medical use," as prohibiting doctors from prescribing a lethal dose of drugs?  In other words, is prescribing a lethal does of drugs a "legitimate medical use."  Second, and more broadly, may a single administrative actor, unaccountable to the electorate, preempt a state's duly-enacted law?

Jon Adler and Wesley Smith are debating the issue, with Adler taking the pro-federalism side.  You can read the debate hereMeanwhile, Wesley Smith made one point I'd like to refute:

The federal government has not attempted to invalidate Oregon's law that permits physicians to issue a lethal prescription to a dying patient who requests it. What Attorney General John Ashcroft did do was interpret the federal Controlled Substances Act (CSA) as barring narcotics, which are regulated by the federal government, from being prescribed by physicians to intentionally cause the deaths of patients. The federal claim is that prescribing controlled substances to cause death is not a "legitimate medical use" of controlled substance under the CSA, which is a federal law.

This is a classic Lottery Case hypothetical, which might bode poorly for the citizens of Oregon.  In The Lottery Case (a pre-Wickard v. Filburn opinion) Congress wanted to prohibit lotteries.  Since Congress lacked the power to directly ban gambling, it banned the interstate shipment of lottery tickets.  Unfortunately, the Supreme Court held that although Congress had merely disguised the exercise of a police power as an exercise of the commerce power, the law would remain valid.  The Lottery Case, by the way, gave birth to the current constitutional abomination of our federal criminal code.

In any event, it's easy to see the difference between direct and indirect invalidation.  If you can't directly overrule the law, you threaten to take the license of any doctor who complies with the law.  Indeed, were this a preemption case, no one would seriously argue that the state regulation would remain valid.  (A state law is preempted where it's impossible for a person to comply with state and federal law.  Here, the doctor can comply with state law only by violating federal law.)  Why then, does Mr. Smith make that argument?  Surely he doesn't think he'll fool Prof. Adler - or anyone else - with this weak argument.  Perhaps he is isn't used to debating with critical thinkers. 

In any event, what's most perverse about the assisted suicide case is that one man, John Ashcroft (and now Al Gonzales) is imposing his will upon the entire state of Oregon - and indeed, the entire United States.  Indeed, the authors of the Cato Institute's amicus brief make the point beautifully:

Here, an unelected regulatory agent of the executive branch of the federal government has attempted to void, through administrative action, not one but two ballot referenda duly conducted by the citizens of a sovereign state who sought to secure for themselves the right to obtain medical advice and assistance at the end of life.

Read Cato's brief.  Although I look forward to reading the rest of the debate, there are two particularly tough issues that will hopefully be addressed:
    1.  Is Chevron's deference to administrative agency interpretation warranted where it enables one person to overrule the expressed policy determination of millions of voters.
    2.  After Raich, does Oregon's law stand a chance?

I have my own views on these matters, but I'll see whether Adler exhausts these points before offering my (much less informed) views.

UPDATE:  Oops, it seems that Wesley Smith made the bad argument noted above because he's intellectually dishonest.  In an earlier column, he wrote:

But the majority opinion [in Raich], written (surprisingly) [Ed. - not to anyone who understands Commerce Clause jurisprudence] by Justice John Paul Stevens, also invoked the Constitution’s Supremacy Clause as “unambiguously” providing “that if there is any conflict between federal and state law, federal law shall prevail.”

As applied in Raich, this means that the federal government is entitled to enforce federal law against medical marijuana users even in the face of contrary state laws, a ruling clearly applicable to the assisted-suicide controversy. And if the Court found this to be true for medical marijuana — which, after all, involves mere symptom relief — it hardly seems likely that it would reach a drastically different conclusion regarding the prescription of more potent controlled substances with the intent to kill.

In other words, in Mr. Smith's own words, the Attorney General in Gonzales v. Oregon is seeking to "to enforce federal law against [doctors] even in the face of contrary state laws."  So much for his original argument that "The federal government has not attempted to invalidate Oregon's law that permits physicians to issue a lethal prescription to a dying patient who requests it."

Federalism (Non)Revolution

Roger Pilon of the Cato Institute and Roderick M. Hills Jr. (prawf, Mich.) are having an interesting debate:

Ten years ago, the Supreme Court, following the lead of Chief Justice William Rehnquist, seemed poised to leave a legacy of curbed federal power. In recent terms, however, the "federalism revolution" seems to have stalled. The June rulings that invalidated California's medical marijuana law and broadened the government's power to seize property—as well as the retirement of Justice Sandra Day O'Connor, who voted in favor of many decisions reinforcing states' rights—may accelerate the trend.

Is the federalism revolution at an end?

Do check it out.

Gonzales v. Oregon

Gonzales v. Oregon, No 04-623 is a particularly perverse attack on federalism.  Although there is no federal law prohibiting physician-assisted suicide, then-Attorney General John Ashcroft strained the Controlled Substances Provision to prohibit it. 

One administrative actor strained federal law to enact his policy preference.  One man sought to control the country. The Ninth Circuit properly held that the long arm of Washington could not extend to Oregon absent clear congressional language.  The federal government sought Supreme Court review.  The Court granted cert. and will hear oral arguments next Term.

The Cato Institute has thus filed yet another excellent amicus brief.  This one supports Oregon and can be downloaded here.  Here's a taste: 

This case requires the Court to determine the limits of federal power and the extent of state sovereignty in the area of professional medical judgment – an area of professional regulation to which “States lay claim by right of history and expertise.” United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy and O’Connor, JJ., concurring). Here, an unelected regulatory agent of the executive branch of the federal government has attempted to void, through administrative action, not one but two ballot referenda duly conducted by the citizens of a sovereign state who sought to secure for themselves the right to obtain medical advice and assistance at the end of life. The two referenda at issue, enshrined in Oregon’s “Death With Dignity Act,” are part of an intense, morally charged debate as to which there is no national consensus, as is evidenced by the Court’s several opinions in   Washington v. Glucksberg, 521 U.S. 702 (1997). Oregon’s law may be unorthodox, and even unique, but it has twice been endorsed by substantial majorities of Oregon voters.

Read the whole thing.

Scalia's "Federalism"

As with his "originalism," Justice Scalia selectively incorporates federalism into his opinions.  Snuck into Castle Rock v. Gonzales was this gem:

[Castle Rock's] result reflects our continuing reluctance to treat the Fourteenth Amendment as a font of tort law, but it does not mean States are powerless to provide victims with personally enforceable remedies.  Although the framers of the Fourteenth Amendment andthe Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.

Slip op. at 19.  Cute.  Very cute.  The Fourteenth Amendment should not be a "font" of tort law, since tort law is better left to the states.  After all, every cause of action allowed under the Fourteenth Amendment applies to all 50 states.  Scalia, it seems, interprets the Constitution with federalism in mind.  Or does he?

Why did he not write the same thing of the Commerce Clause in Raich?  There, he could just have easily have written: "This result reflects our continuing reluctance to treat the Commerce Clause as a general police power."

What an unprincipled jerk.

Spending Clause and Dole

If any law illustrates how wrongly decided South Dakota v. Dole was, then it's the Hatch Act. Under the Hatch Act, a state employee can't run for certain state elective offices.   In other words, the federal government regulates who can run for state office.  Wow.

How does this work in real life?  A friend, who intends to run for the state senate, was offered a job as a prosecutor.  He had to turn the job down because it would have been illegal for him to work as a state employee while running for state elective office.  Officials in Washington, D.C., it seems, have some interest in ensuring that Arizona prevents prosecutors from running for office.

While there are likely good policy reasons to regulate state elections, why is the federal government involved?  Certainly, Congress has the power under the Civil Rights Amendments to ensure that voting rights are not abridged.  But why can Congress regulate state and local elections in this way?  (I realize that this law is likely constitutional under South Dakota v. Dole, but putting aside Dole, where is the national interest?)

The Hatch Act illustrates why the Court needs to reinvigorate the Tenth Amendment.  Congress should have the power to attach conditions to federal funds, but those conditions should be invalided when they reach intimate, and traditional, state functions.  How far this doctrine should extend would be a tough question. (Nat'l League of Cities; San Antonio MTA).  But whether the federal government should be able to regulate state elections (unrelated to the Civil Rights, and the 19th and 26th Amendments) is not a difficult issue.

Federalism and Gun Lawsuits

Eugene Volokh makes a persuasive argument for federal preemption of state common law lawsuits brought against gun manufacturers.  For a contrary  view, don't miss Robert Levy's column, "Gun Lawsuits Are No Business of Congress."  You can also turn off the TV and turn on RealAudio: watch "Federalism Under The Gun: Banning City Lawsuits, Federalizing Gun Crime."

This topic would make for an excellent "Debate Club."


Prof. Bainbridge, responding to Instapundit's post, wrote:

I see federalism and limited government as means to an end, while [Prof. Reynolds] seems to see them as ends in and of themselves. I find his to be a fairly typical worldview among libertarians, who make a fetish out of federalism and small government without regard to whether they actually contribute towards the public good in a given case.

What do you suppose Professor Bainbridge means?  I hope that he doesn't mean this: "First, decide what you want.  Second, find a theory that you can use to convince people to accept that conclusion."  Isn't this the same model that activist judges use?

I'm not sure something is a principle when we only apply it pos hoc, which is what Prof. Bainbridge (though I hope not) seems to be suggesting.  Namely, the end we seek is the "public good."  If federalism will help us reach out preconceived notion of the "public good," then let's use federalism.  If not, let's use something else.  But isn't that just a post hoc justification for a pre-determined conclusion.  Federalism becomes a smokescreen for power politics.

I think that with principles, you have to take the good with the bad.  Generally, federalism will lead to increased individual liberty, but not always.  A state, e.g., may impose draconian sentences or oppressive regulatory schemes.  But if there is no due process or dormant Commerce Clause violation, then I have to accept that the state has the prerogative take that act.  I can't say, "Federalism should not apply here, because I believe that government regulation stifles economic growth and freedom."  Instead, I must accept the state's actions.

In any event, federalism is my fetish is because federalism, on balance, will lead to greater individual liberty.  I'll let two qualified people elaborate.  Judge Kennedy is fond of saying that the genius of the Founders was that they split the atom of sovereignty.  U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) (“Federalism was our Nation's own discovery.  *** It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other”).   The Framers recognized that federalism was not good qua good: Federalism was good because it furthered individual liberty. 

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself. 

The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).  By limiting the States and Congress to their proper prerogatives, the people enjoy greater freedom since the structure of federalism would prevent Congressional overreaching into local affairs.  The people would have two servants, not two masters.

Again, sometimes federalism does not lead to more liberty, though on balance, it does.  But I can't merely disregard federalism because I don't like the result in a given case.  Otherwise, I don't live by principles, but by whim.

Crime and Federalism Wins in the Circuits

In United States v. Lopez, 514 U.S. 549 (1995) the Court, for the first time since 1937, struck down a law because it exceeded the scope of Congress' commerce power. Understandably, the federal circuits reacted with caution: no court struck down a criminal statute immediately post-Lopez.  Granted, the federalism gurus of the fightin' Fifth tried.

Three years after Lopez, the Fifth Circuit - which, we'll remember, gave us Lopez - examined constitutional challenges to the Hobbs Act. In United States v. Hickman, 151 F.3d 446, rehearing en banc 179 F.3d 230 (CA5 1999), cert. denied 530 U.S. 1210 (2000) an equally divided en banc panel of the Fifth Circuit affirmed convictions under the Hobbs Act against a Commerce Clause-based attack.  Perhaps Lopez was an abberation.

Then in United States v. Morrison, 529 U.S. 598 (2000), the Court held that the civil remedy provision of the Violence Against Women Act violated the Commerce Clause. And the next week, in Jones v. United States, 529 U.S. 848 (2000), the Court construed the federal arson statute narrowly because, applying it to the burning of a private resident, would raise considerable constitutional problems in light of Lopez.  The Court was taking federalism seriously. Did the circuits hear its call?  Not for another three years.

Again, the Fifth Circuit heard an attack brought against the Hobbs Act.  In United States v. McFarland, 264 F.3d 557 (5th Cir. 2001), rehearing en banc 311 F.3d 376 (5th Cir. 2002), cert. denied, 538 U.S. 962 (2003), the Fifth Circuit again split evenly in rejecting a challenge that the Hobbs Act exceeded Congress' commerce power.

No federal circuit held that a federal criminal law was unconstitutional under the Commerce Clause until nearly eight years after Lopez, and three years after Morrison.  The circuits, it seemed, did not take Lopez or Morrison seriously - at least not seriously enough to implement it.

In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel reversed a conviction under the federal child pornography law because the pornographic images were not transported interstate. In McCoy, a mother was convicted under federal child pornography laws for taking sexually-explicit pictures of herself and her daughter.  The government failed to prove that McCoy took the photographs for commercial gain, or that the photographs traveled interstate.  Because of that, her prosecution was unconstitutional under the Commerce Clause.

On the heels of McCoy came United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski, J.). The issue in Stewart was whether Congress' commerce power allowed it to criminalize the possession of a home-made machine-gun Stewart had converted his semi-automatic rifle to fire automatically with parts that had moved through interstate commerce. Holding that Congress lacked the power, Judge Kozinski wrote:

Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to obliterate the distinction between what is national and what is local and create a completely centralized government.

Id. at 1135 (quotation marks omitted).

In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28, 2004), a 2-1 panel held that the Controlled Substance Act, to the extent that it criminalized the use of marijuana not purchased nor obtained interstate, was an unconstitutional exercise of power under the Commerce Clause. Wrote Judge Pregerson:

The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce.

Id. at 1229-30.  The Ninth Circuit has been silent on crime and federalism issues post-Raich.  But in 2004, the Eleventh Circuit spoke.

In United States v. Maxwell, 2004 WL 2191801 (11th Cir., Oct. 1, 2004), a unanimous three-judge panel held that Congress may not criminalize the intrastate possession of child pornography, even if the child pornography is kept on items that moved through interstate commerce. In Maxwell, the defendant kept his child pornography on diskettes that moved through interstate commerce. However, the prosecution could not establish that the pictures on the disks were taken outside of Maxwell's home state - Florida. Thus, the law was unconstitutional as applied to him. Significantly, the panel held that it would not apply the aggregate affects test of Wickard v. Filburn to non-commercial activity.

A couple of weeks ago, in United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005), a different and unanimous three-judge panel affirmed Maxwell's holding, and reviewing for plain error, held that allowing Maxwell-type prosecution would be reversed.

Even though there are over 4,000 federal criminal laws, the circuits have only given us a five crime and federalism victories in ten years. It seems that most circuits do not take Lopez and Morrison seriously.