Tag: federalism

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.

Amendment 64 Becomes Law in Colorado

Yesterday Colorado Governor John Hickenlooper signed an executive order that essentially certifies the election results in that state–and that means Amendment 64, which legalizes marijuana possession for adults, is now a part of the Colorado state constitution.  Following  Washington state, Colorado is now the second state to change its law so as to make the recreational use of marijuana legal for adults. 

This means we now have a delicate legal situation where marijuana is legal under state law, but illegal under federal law.  The Justice Department is reportedly considering a legal challenge to the new state laws based upon the legal doctrine of federal supremacy.   In a new Cato paper, entitled “On the Limits of Federal Supremacy,”  law professor Robert Mikos argues that such state laws, and most related regulations, have not been–and cannot be–preempted by the federal government.  Here’s the executive summary:

The American Constitution divides governmental power between the federal government and several state governments. In the event of a conflict between federal law and state law, the Supremacy Clause of the Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies. There are, however, important limitations to the doctrine of federal supremacy.

First, there must be a valid constitutional basis for the federal policy in question. The powers of the federal government are limited and enumerated, and the president and Congress must always respect the boundary lines that the Constitution created.

Second, even in the areas where federal authorities may enact law, they may not use the states as instruments of federal governance. This anticommandeering limitation upon federal power is often overlooked, but the Supreme Court will enforce that principle in appropriate cases.

Using medical marijuana as a case study, I examine how the anti-commandeering principle protects the states’ prerogative to legalize activity that Congress bans. The federal government has banned marijuana outright, and for years federal officials have lobbied against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain why these state laws, and most related regulations, have not been—and cannot be—preempted by Congress. I also develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.

Although I focus on medical marijuana, the legal analysis applies to any issue pitting permissive state laws against restrictive federal regulations. Recent referenda in Colorado and Washington that legalize the recreational use of marijuana for adults will likely prompt federal officials to respond by touting the supremacy of the federal ban and challenging the constitutionality of state efforts at legalization. Such state reforms should carry the day in the event of such a legal challenge.

Tomorrow, Professor Mikos will be addressing this subject here at a policy forum.  Former DEA head, Asa Hutchinson, will also be here to offer his thoughts on the interplay between state and federal law and the future direction of drug policy.

Privacy Regulation and Political Economy

Good-hearted people want to cure hunger, ignorance, and other human deficits. Many see the cure in taking from the group of “haves” and giving to the “have-nots.” Along with the injustice of the transfer itself, libertarians like to point out the backward incentives that generous, systematic giving creates. Poverty and ignorance becomes a low-end, but survivable, mode of living. It’s not really a surprise that these problems respond to subsidy by becoming intractable.

That’s simple math to people who understand incentives, so it shouldn’t be hard to recognize incentive structures and their warping in other areas. Take federalism. The Constitution set out a design for government that aligned political incentives well. With a limited federal government and plenary powers left with the states, elected officials closer to the people would provide better government because they would be responsible to smaller numbers of people at the ballot box.

When state officials go wrong, good-hearted, economically-minded people want to cure their deficits. Many see the cure in removing power from the state level to the federal through preemption. State regulation can interfere with national markets, and there is a Commerce Clause that arguably permits national regulation of all things commercial.

But the Commerce Clause was not a grant of plenary authority over commerce anywhere in the United States. It gave Congress power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Think of a border sentry tasked mostly with preventing anyone from erecting gates.

One can “fix” bad state regulation by replacing it with a less-bad, nationally uniform rule. But doing so frees state officials from responsibility. The subsidy makes carelessness a low-end, but survivable mode of governing.

So with California Attorney General Kamala Harris brandishing $2,500 fines per download of apps in California if they don’t meet the terms of the California Online Privacy Protection Act, I don’t think the right answer is for the federal government to whisk in with its own less-bad privacy law that preempts California’s. The attorney general and the authors of California’s law should be allowed to let their behavior have its effects in their state, responding to their state’s voters if it has negative consequences.

The federal government’s only response should be to make clear that there are limits on California’s ability to bring out-of-staters into court. The federal government should preserve the right of people and businesses to exit states that make themselves unfriendly through high taxes, poor services, and inefficient regulation. This will set up the incentive structure under which governance in the United States will thrive, perhaps at the cost of California sinking into the ocean.

The ObamaCare Rebellion Turns Exchange ‘Deadline’ into a ‘Rolling Deadline’

The Obama administration had set a deadline of November 16 for states to signal whether they would create their own health insurance “exchanges,” or let the federal government do it.

But the federal government is so desperate to have states do the heavy lifting, and so few states are interested, that for some time (most recently in a National Review Online column that posted yesterday) I have been predicting the Obama administration would push back that deadline. It seems I was right. Well, today’s CQ Healthbeat reports:

The federal government is likely to extend the Nov. 16 deadline for states to decide whether they will run their own health insurance exchanges, according to several state officials. … Instead, HHS officials are expected to set a new deadline for states that want to operate the marketplaces alone but have a rolling deadline with ongoing discussions for states that are interested in a partnership.

What is the difference between a “rolling deadline” and no deadline?

It’s “the REAL ID rebellion“ all over again.