Tag: federalism

Cato Brief Gains National Acclaim

Remember Bond v. United States, that typical story of adultery, federalism, and chemical weapons?  Cato has actually filed four briefs in Bond, most recently last month, the last three making the point that the president can’t expand federal constitutional powers simply by signing a treaty.

Our arguments are based on a 2005 law review article by Georgetown law professor (and Cato senior fellow) Nicholas Quinn Rosenkranz, the primary author of these last three briefs. It’s certainly unusual for a law review article to play a pivotal role in a Supreme Court case, but, as those following Bond know, there’s little “usual” about this case. 

Maybe that’s why the national media is starting to pay attention to our attempt to get the Supreme Court to be faithful to this particular corner of the Constitution: last week, the National Law Journal declared our Bond filing its “brief of the week.”

For more on this case, and our arguments, watch the lunch panel we had on Friday, featuring Nick Rosenkranz and Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.  The Supreme Court will hear oral argument in Bond in October.

The Framers and Love

As some of you are aware, I recently got married, right here on Cato’s roofdeck, overseen by the eagle of liberty. I’ll spare you the details – there were plenty of “constitutional moments,” including personalized pocket constitutions as one of our wedding favors – other than to highlight my sometime co-author Josh Blackman’s excellent reading on the Framers and love:

We can look to the same patriots that gave us our Constitution to glean some lessons about love, liberty, and forming more perfect unions.

A successful marriage is not that much different from a successful republic. Both require the union of different parties to utilize their comparative advantages more efficiently. Both require a federalist system that structures powers and rights. And most importantly, both must aspire to a higher charter to bond them into one. For the United States it is our Constitution. For Kristin and Ilya, it is their vows.

First, we look to Federalist 51, Ilya’s favorite, where Madison wrote that if men were angels, we would not need government. Alas, neither husband nor wife is always an angel, so both Kristin and Ilya will need to structure a government for themselves to promote their happiness.

Second, to avoid any strife, we should heed Jefferson’s words in the Declaration of Independence, for mere “light and transient” causes are not enough. They must maintain tranquility, as they “mutually pledge to each other their Lives, their Fortunes and their sacred Honor.”

Third, we turn to the father of our country, General George Washington, whose eternal love for his wife Martha carried him towards victory. In one of the rare letters, which Martha did not burn at George’s death, the General wrote to her, “I retain an unalterable affection for you, which neither time nor distance can change.” May the two of you always be in such love, no matter where you are.

May the passion our framers had for our Constitution and Republic, mirror the love you have for each other. And as the history of our nation has witnessed, despite the dividing difficulties, insurmountable challenges, and specters of oppression, the union shall always prevail. As you pursue happiness together, may Kristin and Ilya always cherish their life, and liberty–and hopefully accumulate vast amounts of property, both personal and real. And that way, they can “secure the Blessings of Liberty to their many Posterity.”

If you’re curious about the rest of the ceremony, including Josh’s presentation, you can view it here (the audio is patchy at first, but kicks in before the vows). Yes, I got permission from my wife to post that and, yes, we’ll be going on honeymoon soon – but, like most couples, we’re waiting for the end of the Supreme Court term before getting away.

Justice Thomas Shows Again that the Federal Emperor Has No Constitutional Clothes

Yesterday’s unanimous Supreme Court opinion in American Trucking Associations v. City of Los Angeles is a run-of-the-mill federal preemption case, not inviting much attention. But the interesting bit isn’t Justice Kagan’s majority opinion. It’s Justice Thomas’s short concurrence. Thomas agrees that federal law trumps conflicting state/local law regarding certain regulations related to the Port of Los Angeles, but seizes on the plain language of the preempting statute to take a shot at the massive expansion of federal authority under a misreading of the Commerce Clause.

Justice Thomas focuses on a section of the relevant statute (the Federal Aviation Administration Authorization Act, or FAAAA–don’t ask why this covers ports) titled “Federal authority over intrastate transportation.” He denies that Congress possesses this authority: the Commerce Clause, part of Article I, section 8, only gives Congress the power to regulate commerce “among the several States.” Thomas can’t believe that Congress could have been granted power to legislate something so local as where trucks park once they leave the port (one of the regulations at issue in American Trucking):

Congress cannot pre-empt a state law merely by promulgating a conflicting statute–the preempting statute must also be constitutional, both on its face and as applied. As relevant here, if Congress lacks authority to enact a law regulating a particular intrastate activity, it follows that Congress also lacks authority to pre-empt state laws regulating that activity

The reason that Justice Thomas nevertheless concurs in the judgment here, however, is that Los Angeles waived any constitutional claims against the FAAAA, instead relying solely on statutory arguments (which correctly lost 9-0).

This isn’t the first time that Thomas upheld a federal law but noted federalism concerns that, as here, the plaintiffs didn’t raise (or didn’t preserve on appeal). In Gonzales v. Carhart, for example, Thomas concurred with a majority decision that sustained the federal Partial-Birth Abortion Ban Act against a challenge based on Roe v. Wade and Planned Parenthood v. Casey but noted that the issue of whether a federal abortion regulation “constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

Justice Thomas’s opinions in these sorts of cases illustrate the misuse of the Commerce Clause given the Constitution’s careful enumeration of congressional powers. These brief, pointed concurrences show that our imperial government isn’t clothed in constitutional authority.

And they also have a direct use for legal practitioners. I wasn’t a “real” lawyer for that long before joining Cato, but here’s an easy practice tip: Don’t just assume that the federal government has the power to pass the law you don’t want applied to your client.

The IRS Has Already Abused Its Powers under ObamaCare

Over at Bloomberg, National Review’s Ramesh Ponnuru writes about the Obama administration’s disregard for the rule of law, including the IRS’s $800 billion power grab:

The Patient Protection and Affordable Care Act, the sweeping health-care law that Obama signed in 2010, asks state governments to set up health exchanges, and authorizes the federal government to provide tax credits to people who use those exchanges to get insurance. But most states have refused to establish the online marketplaces, and both the tax credits and many of the law’s penalties can’t go into effect until the states act.

Obama’s IRS has decided it’s going to apply the tax credits and penalties in states that refuse, even without statutory authorization. During the recent scandal over the IRS’s harassment of conservative groups, many Republicans have warned that the IRS can’t be trusted with the new powers that the health law will give the agency. They are wrong about the verb tense: It has already abused those powers.

For more, read my article (with Jonathan Adler), “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.”


Code of the West

The legal battle between the federal government and the states over the legality of marijuana is returning to the news. Former DEA chiefs are calling on the Obama administration to crack down on the two states that recently approved referenda to legalize marijuana under state law, Colorado and Washington. Meanwhile, many other states are trying to legalize marijuana for medical purposes.

On that latter point, Cato will be screening the new film Code of the West next week. This film explores the political, legal, and cultural battles over medical marijuana in Montana. Watch local policymakers grapple with the myriad issues that arise when medical marijuana becomes legal under state law for certain patients. The film also tells the story of certain growers who try to establish businesses, only to find their establishments raided by federal law enforcement agents. Join us for this film screening and the policy discussion afterward.

Registration information can be found here.

Watch the film trailer here.  More information about Code of the West here.

Supreme Court Could Also Strike Down DOMA on Federalism Grounds

One of the more interesting and potentially influential amicus briefs in United States v. Windsor, the case challenging DOMA Section 3, is one filed by a group of federalism scholars, all of whom have some connection to Cato and/or are generally sympathetic to the positions we take at the Center for Constitutional Studies. As Dale Carpenter puts it on the Volokh Conspiracy blog:

Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.

This may be an appealing argument for those on the Court who take federalism seriously and have a problem with Section 3 but may not be ready to extend the constitutional right to marry to same-sex couples. Coincidentally, the justice most likely to fall into that category is Anthony Kennedy—who will almost certainly be the swing vote in these cases—but the four “conservative” justices could also sign on to something like this even as they vehemently reject the broader constitutional argument in Hollingsworth v. Perry (the Prop 8 case) or in future cases challenging state denials of marriage licenses.  The four “liberal” justices, meanwhile, don’t care about limiting federal power through constitutional structure, but will presumably vote to strike down Section 3 on equal protection grounds.

Indeed, as I wrote in December, “I could see an opinion stating that marriage is an issue that our federal system leaves to the states and the federal government has to respect each state’s definition of it in granting benefits based on that status. That would mean that federal benefits would operate differently in different states, but so be it; gay married couples would have an incentive to live in the growing number of states that recognize their relationships.”

This federalism argument may ultimately be too clever because the federal government certainly does have the power to define the terms in its statutes, which would collapse the issue in Windsor back to whether the restriction on DOMA’s definition of marriage survives equal protection analysis (on which see Cato’s brief). It would also probably be a mere way-station on the road to full marriage equality, becoming increasingly academic as more states allow same-sex marriage. But, as I said, it’s more likely to resonate with certain members of the Court—and could have the potentially more important benefit of strengthening federalism in other areas of policy.

It would also mean the striking down of arguably the most signficiant federal law on federalism grounds in the modern era. We shall see.

Obama, Barbara Walters, and Marijuana Users

In an interview with Barbara Walters, President Obama was finally asked about the dramatic legal changes underway in Colorado and Washington–the legalization of marijuana for adults under state law.  The President said that the federal government has “higher priorities” than arresting marijuana users.   At first glance, that may seem like a good answer for those supportive of drug policy reform, but it is not.

Here’s why: Arresting marijuana users has never been a high priority of federal law enforcement.  There are about 800,000 marijuana arrests in the U.S. every year.  The feds are responsible for about 1% of those.  The feds rely on state and local police to conduct domestic drug investigations–especially users with small amounts.  The feds want to focus their resources on the big international cartels operating outside the country.  Of course, the DEA also gets involved with the larger smuggling operations inside the U.S.  In California, where marijuana is quasi-legal for users (in a de facto sense) federal prosecutors focus on the supply side–raiding, harassing, arresting.  The feds bypass  juries by using civil asset forfeiture laws against persons opening dispensaries.

Against that background, listen again to Obama: My administration has higher priorities than going after marijuana users.  Hmm.  That’s just another way of saying “nothing has changed as far as I’m concerned.”    I expect Attorney General Eric Holder to announce a legal challenge to the Colorado and Washington initiatives sometime soon.  And federal raids will begin soon also.

Cato hosted an event this week on some of the issues related to such a federal legal challenge.  Speakers included, former DEA chief, Asa Huthinson and Robert Mikos, Vanderbilt law professor and author of a new Cato study about the interplay between federal and state law with respect to marijuana.