Crime & 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. Oregon.  Gonzales 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 here.  Meanwhile, 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.

Where Goeth Federalism?

Professor John Yoo has an excellent column on federalism and the Bush administration available here.

(Hat tip: How Appealing)

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."

Federalism

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.

The New Crime and Federalism Jocks

In United States v. Peters (CA11) a three judge panel devoted 19-pages to a plain error analysis of the constitutionality of selling a firearm to a felon.  Why perform this analysis when reviewing for plain error?

I have an answer -- On the heels of U.S. v. Maxwell and U.S. v. Smith, the Eleventh Circuit wants us to know that they are the new federalism jocks.

Sure, the Fifth Circuit was the first court to hold that Congress exceeded its power under the Commerce Clause since 1937.  And post-Lopez it appeared that the Fifth Circuit would keep its title as the federalism jocks.  But in Hickman (the constitutionality of the Hobbs Act) and McFarland (Hobbs Act take 2), the Fifth Circuit twice failed to limit Congress' power to enact federal criminal laws.  Recently, in U.S. v. Bird, the Fifth Circuit declined to strike down a clearly unconstitutional law.

Then the Ninth Circuit moved in with three big crime and federalism cases - U.S. v. McCoy (intrastate possession of child p*rnography), U.S. v. Stewart (the home-made machine gun case), and Raich v. Ashcroft (intrastate possession of medicial marijuana).  But the Ninth Circuit has been silent for a while.

Thus, the Eleventh Circuit moved in.  In Maxwell they reversed a child p*rnography conviction.  In Smith they reversed another child p*rn conviction (on plain error review!).  And in Peters they told us, "We take federalism seriously," even when the advocates don't think the raise the issue below.

Let's hope that Raich - which the government will win - will be a narrow win for the government, so we can see if the Eleventh Circuit has its title taken away.
 

Federalism is an Individual Right

Most people say that because I am a federalist, I must support states' rights.  They say I should keep company with the likes of a Jesse Helms, Trent Lott, or John C. Calhoun.  My employers and friends would find tha ironic, since the past 2 years I have worked soley on plaintiffs' Section 1983 and criminal cases for the defense.  Is a civil libertarian like me confused?

No.  Federalism is an individual right that should be as jealously guarded as the rest of the Bill of Rights.  In the criminal context, it becomes manifestly clear why. 

Each time Congress exercises power over offense conduct that is also a state crime, the following injustices occur:

• 1. A citizen may suffer successive prosecutions because the Supreme Court held that it does not violate the Double Jeopardy Clause to allow the state and federal governments to prosecute the same individual for the same offense conduct if that conduct violates both state and federal law.  The pit bull gets two bites at a defendant'’s jugular.
• 2. A citizen is subject to harsher penalties under federal law because most states confer upon their judges extensive discretion: the Guidelines provide almost none.  State prosecutors know this and often threaten to dismiss state charges to allow their friends at the US Attorneys office to file in federal court.
• 3. A citizen is not afforded his full constitutional rights.  This is because the federal Bill of Rights provides a floor on individual rights.  States may not offer less protection in their state constitutions than are provided in the Constitution, but states may offer more.  When a citizen is prosecuted in federal court for acts that also violate state law, the individual is not receiving his full potential protection under the law.
• 4. Acts that do not violate state law may violate federal laws.  The best example of this the federal crime of statutory rape, one of many Mann Acts.  It makes it a crime to move interstate to have sex with someone under 18 years old.  And although the age of consent varies from state to state, it is not a defense that the states from which (and to which) one moved has a lower age of consent than under federal law.  Thus, a person who travels from State A, where the age of consent is 16 years old to State B, where the age of consent is also 16 years old has committed statutory rape.

It is thus obvious that federalism has implications on individual rights.  But is it a right in itself?

The capital-f Federalists - most notably, Alexander Hamilton and James Madison - argued against a Bill of Rights.  They argued that listing individual rights was unnecessary because Congress' power was curtailed.  Congress could not reach you because its power is too narrow.  In my favorite of the Federalist Papers (No. 84), Hamilton wrote:

Here [in our original Constitution], in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.  "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
***
For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

The structure of the Constitution limits federal power and thus leaves the people more free.

The structure of the Constitution was not enough for many states -- They conditioned their consent to the Constitution on the immediate amendment of the Constitution by adding a Bill of Rights. Madison and Hamilton lost that debate.

Indeed, included in the Bill of Rights is the Tenth Amendment, which provides that "The powers not delegated to the United States by the Constitution [ ] are reserved to the States respectively, or to the people."  Since the Tenth Amendment is included in the Bill of Rights, it is tautological to say that we have an individual right to be free from excessive Congressional power.

Schiavo and Federalism - Take 2

"T. More" of the CLS Federalist Society Blog is baffled that "people persist in such simplemindedness in analyzing these issues," as "there is no legitimate" federalism concern.  He continues:

Is the Federal Government trying here to upend any state law? No. It is simply granting to a lower court the jurisdiction to hear claims of federal right de novo. That is at best a minor federalism problem, if you think that an important part of federalism is allowing state courts to adjudicate claims of federal right. But allowing this review does not offend against that principle, particularly when one considers that this is limited to a single case. Again, that limitation may be foolish, but it is not an offense against federalism.

My response to Mr. More, and to others who see no federalism problem where Congress orders a federal court to re-open a state court's final judgment on a family law issue, is a question:  Do you contend that if, upon exercising de novo review, the CA11 upheld the state court's finding, that the members of Congress who supported the Schiavo legislation would not be offended at the outcome? Is your argument that Congress does not care about the substantive outcome of the Schiavo case, but only about the procedures used?

Assuming Congress cares about the substantive outcome, should we federalists be concerned that Congress is manipulating jurisdiction to reach a certain result. Granted, the Schiavo legislation was a clever way to (now it seems, attempt to) manipulate a result, but not so clever that we can't see what Congress is doing.

Terry Schiavo and Federalism, or, Federalism is not a Prostitute

Poor federalism!  Those who spread the good word about Lopez and Morrison are now arguing that Congress can regulate domestic affairs.  And those who screamed bloody murder - "conservative activism!" - when the Court hinted that federalism might mean that Congress can't create a common law torts have now switched sides -- Let Terri Schiavo die, so that federalism may live.

In short, federalism has been kicked from the bed of conservatives and thrust into the arms of the liberals.  What a way to treat a doctrine.

I don't want to enter the argument, because it's disgusting.  People who supposedly lived by principles have ditched those principles to stay loyal to their teams.  And those who only principle was, "Let Congress run wild," now pretend that federalism matters.

But the Schiavo matter reminded me of the rationale of United States v. Lopez.  There, Chief Justice Rehnquist wrote:

We pause to consider the implications of the Government's arguments. The Government admits, under its "costs of crime" reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

In United States v. Morrison, Chief Justice Rehnquist echoed Lopez's reasoning:

[The government's] reasoning, moreover, will not limit Congress to regulating violence but may, as we suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. 

In Lopez and Morrison the Court was incredulous that Congress could draft a Uniform Family Law Act.  Indeed, I've never met a conservative who would approve of Congress' regulating domestic disputes.  Here, we need to stay focused on what Schivo involves.

The Schiavo controversy is nothing but a family law dispute.  Yes, the stakes are high, and literally involve life or death.  But in family law, the stakes are always high.  If a family law judge awards custody to the wrong parent or relative, a child may be molested, abused, or killed.  Still, Congress does not have the enumerated power to control family law outcomes.

Under Florida law, the husband gets to decide whether Mrs. Schiavo will remain with a feeding tube in her mouth.  Florida courts have determined that Mr. Schiavo's judgment about whether or not Mrs. Schiavo will live or die is to be respected.  That should be the end of it.

Unless one is willing to concede that Congress has the power to regulate family law, then one can not consistenty argue that Congress has power over Terri Schiavo.

Trial Lawyers and Federalism

It's becoming increasingly common for civil defendants to assert preemption as a defense to common law tort claims.  The Court recently rejected one such assertion, Sprietsma v. Mercury Maine (Federal Boat Safety Act did not preclude state products liability action against boat manufacturer that sold motor without a propellor guard) and accepted another.  Aetna Healthy Inc. v. Davila (ERISA preempted healtcare-related causes of action against HMOs that used unreasonable care in denying claims). Trial lawyers must understand preemption.

Thus, Pepperdine is hosting a timely CLE on April 9th - Federal Preemption of State Tort Law: The Problem of Medical Drugs and Devices.

I don't know the people responsible for the CLE, though I wouldn't let the haughty language introducing the CLE scare you away.  Law review types speak that way, but alas, that's how they have been taught.

A major advantage of attending is that it will most likely be very pro-defense.  Thus, plaintiffs' lawyers can get advance notice of defense strategy.

Plus, if you make it to Los Angeles, we can grab lunch, drinks, or a nice cigar.  Just let me know if you're coming.

Eleventh Amendment Black Letter Law

Everything - and I do mean everything - a lawyer needs to know about the Eleventh Amendment. Pace v. Bogalusa School Bd., No. 01-31026 (5th Cir. March 8, 2005) (en banc).  If you're a law student in Constitutional Law, or if you're a lawyer who sues states or state officials, read - at least - pages 4-12 of this opinion.

"Federalism and Criminalization"

[Editor's note: I am pleased to bring you this column, entitled "Federalism and Criminalization," written by George W. Liebmann of the American Conservative Union Foundation.  The article originally appeared here, and is reprinted with permission of the author.]

Adam Cohen's alarmist article ("What's New in the Legal World? A Growing Campaign to Undo the New Deal", New York Times.Dec.14) suggests that the survival of modern commercial regulation is at stake in the pending California medical marijuana case, which is said to endanger the Supreme Court's holding in Wickard v. Filburn. The writings of Mr. Justice Jackson, the author of Wickard, refute the conclusion that the federal commerce power is coextensive with the police power, reserved by The Federalist No.45 to the states.

An Odd Bird

In United States v. Bird, 124 F.3d 667 (5th Cir. 1997)

Frank Bird ... while protesting outside the America's Women Clinic in Houston, Texas, threw a bottle at a car driven by Dr. Theodore Herring (Herring), an abortion provider, as he attempted to enter the clinic premises. As Bird threw the bottle, he yelled, "Herring, I'm going to get you. I'm going to kill you."

Bird was prosecuted under 18 U.S.C. 248 (the Freedom of Access to Clinic Entrances Act, or FACE), which makes it a felony to harass an abortion doctor and does not include a jurisdictional element that would require the federal government to prove that, hells bells, there's a federal issue in the case.  But Judge Garwood wrote for a 2-1 panel that Congress could regulate discreet, insulated, instrastate acts to protect the broader market for abortion:

Because we find that there was a sufficient basis for the Congress to have determined that the activity proscribed by the Act, though intrastate, could have a substantial affect on the congressionally-recognized national market for abortion-related services [FACE was valid under the Commerce Clause.]

After all, if doctors are afraid to go to work, they won't accept money to perform abortions.  [Note to Republicans -- How in the hell did you guys let this law get enacted? Did your love for criminalizing everything exceed your disdain for abortion?]

Bird was convicted, but he did not learn his lesson.  Comes now Bird II.  United States v. Bird, No. 03-20884 (5th Cir. Feb. 28, 2005).

Five years later, Bird drove his truck through the door of an abortion clinic.  And he was again prosecuted under FACE.  The district court properly dismissed the indictment, since a post-Morrison understanding of the Commerce Clause could not save FACE.

A 2-1 panel of the Fifth Circuit Court of appeals reversed the trial court, writing that "We do not find that the Supreme Court’s decision in Morrison materially affects our holding in Bird I."  Judge DeMoss again dissented.  Wrote the good judge:

As in Lopez and Morrison, the criminal activity at issue here, the intentional damaging and destroying of a facility that provides reproductive health services, is neither an economic nor a commercial activity.  ***  The Court in Morrison further suggested that Congress could not, in the absence of a regulated activity which is economic or commercial, simply exercise a general police power...
***
Because Congress does not have a general police power, it surely cannot have the authority to define as criminal conduct under federal law private acts that are intended to interfere with another person’s exercise of some constitutional right, whether that right is to be free from gender-based violence as in VAWA or to choose to access reproductive health services, such as abortion, as in FACE.5 Purely criminal activities that are not premised in economic or commercial contexts are subject to an entirely different scheme of congressional regulations, none of which is justifiable under the Commerce Clause.

Slightly more provocatively, Judge DeMoss's reading of Morrison concludes:

Morrison refutes the concept of an aggregate effect on a national market when the conduct proscribed is violent criminal conduct. 529 U.S. at 615-19. As a preliminary matter, the Commerce Clause may not reach noneconomic activity that only affects commerce through a “but-for” causal chain.
***
While Bird I concluded that Wickard, reaffirmed by Lopez, permits the aggregation of intrastate, noncommercial activity, the Supreme Court’s more recent decision in Morrison expressly forecloses any such aggregation.

Please read the full dissent here.

I'm going to take a walk and think about this decision.  I'll report my thoughts later, and hope you include yours as a comment.

Crime and Federalism Defeat

Frank Bird drove his van through the front door of an abortion clinic.  Does Congress have power under the Commerce Clause to make this a federal crime? 

Under 18 U.S.C. 248, anyone who "intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services" is guilty of a felony.

Per Judge Garza, today a 2-1 panel of the Fifth Circuit Court of Appeals upheld that law in spite of United States v. Morrison.  United States v. Bird, No. 03-20884 (5th Cir., Feb. 28, 2005).  Judge DeMoss dissented.  I predict the Fifth Circuit will rehear the case en banc, and we'll have a re-match between the McFarland factions.

Hap tip: AL&P.

Deuces and Federalism

Lawrence Taylor, an expert (perhaps the expert) on DUI law, has an excellent post entitlted "The Future of DUI."  Among many ominous predictions is this one:

Federal Presence
The Past:  DUI laws have always been a state-prescribed crime.  With the prompting of special interest groups like MADD (Mothers Against Drunk Driving) and the desire of politicians to curry favor with voters, this has gradually changed.  Using a "carrot and stick" approach with highway funds [South Dakota v. Dole, the famous Spending Clause decision, upheld this practice], the federal government has forced states to change their laws and penalties in such ways as:  "per se" laws; .08% BAC; "zero tolerance" for drivers under 21; automatic license suspensions; standardized field sobriety tests; federally approved lists of breath testing machines.
The Trend:  The federalizing of a traditionally state offense.
The Future:  With the use of the Constitution's Commerce Clause, DUI laws and penalties will become "federalized".  However, without the ability (or inclination) to arrest and prosecute these crimes in the federal courts, the states will be left to continue processing them in their own courts or administrative hearings.

If Congress did federalize DUIs, I suspect that things would get either much better or much worse for alleged DUI offenders.  Federal judges would be miffed at having to decide DUI cases.  Thus, they might actually start interpreting the Constitution properly, which would allow them to kick these cases out of court, or they might craft procedures designed to turn and burn DUI cases as quickly as possible.  But given the states' current love affair with DUIs - which are great revenue generators for the state - I doubt they'll ever be heard in federal courts.

What I expect Congress to do is federalize the collateral consequences of a DUI conviction.  That is, a DUI conviction will preclude someone from obtaining many of the licenses issued by federal agencies, and a DUI conviction will likely prevent someone from obtaining federal employment.

Anyhow, for you should read the whole post, for predictions from someone who actually knows (instead of, like me, who is merely speculating) the path of DUI laws.

Federalism and Tort Reform

Robert A. Levy of the Cato Institute has an article entitled "Tort Reform as if Federalism Mattered," which is available here.

Federalism...

In "The New Blue Federalists - The case for liberal federalism" Richard Thompson Ford makes a compelling argument that federalism is for liberals, too.  Please read his column here.

Insurance & Federalism

RiskProf analyzes federalism and insurance law.

Two types of Federalists?

My political views often surprise people.  My criminal defense lawyer friends are always shocked to learn that I support school vouchers.  My conservative friends (who consider me a loyal ally) groan when they learn I support decriminalizing almost everything.  But especially confusing to my liberal friends is my membership in the Federalist Society.

I can understand the confusion, and it exists because liberals assume there is only one type of Federalist.  But unlike the left, we Federalists are diverse.

I think there are two main types of federalists: the Heritage-Federalists and the Cato-Federalists.  Our different approaches on policy, especially on crime and federalism, can be illustrated by comparing two different discussions on overcriminalization.

In Measuring the Explosive Growth of Federal Crime Legislation, sponsored by the Heritage Foundation, former Attorneys General Edwin Meese and Richard Thornburgh criticize Congress' willingness to criminalize garden-variety crimes, e.g., car jacking..  Some of the reasons they disagree with the growth of the criminal code include Congress' stepping on the toes of sovereign states, and the high economic cost to pay the law enforcement officers (including generous salaries and pensions).  However, not once did Mssrs. Meese or Thornburgh talk about how unjust it is for a person's conducted to be covered by overlapping federal and state laws. 

Heritage-Federalists are still down with the establishment, the only difference is they prefer smaller units of goverments.  Powerful states are fine, a powerful federal government is less desirable. 

Cato-Federalists are more of the anti-establishment wing.  We are as concerned with individual rights as the ACLU.  We differ with the ACLU on many issues, though, because unlike the left, we think that less government leads to greater individual liberty.

Thus, in this amicus brief, the Cato Institute argued against a broad reading of the Commerce Clause because:

Federal Duplication of State Criminal Codes Threatens Individual Rights.
The passage of the federal statute governing “interstate domestic abuse” is part of a trend in which Congress has been duplicating state offenses in the federal criminal code, particularly on “hot-button” issues suitable for political posturing. See AMERICAN BAR ASS’N, TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, THE FEDERALIZATION OF CRIMINAL LAW (1998) at p. 2. That expansion of federal authority into areas the Framers never intended undermines many aspects of the constitutional structure they designed, throwing the system out of balance in ways that threaten individual rights and liberty.

For example, the Framers of the Bill of Rights intended that no person should “be subject for the same offence to be twice put in jeopardy of life or limb,” meaning that a person cannot be punished twice or prosecuted after an acquittal for the same crime. U.S. Const. amend. V. But this Court has ruled that a state prosecution will not bar a subsequent federal prosecution for the same conduct, because the state and federal governments are “separate sovereigns” with distinct interests to protect. Abbate v. United States, 359 U.S. 187 (1959). The “separate sovereign” doctrine would not often compromise the constitutional protection against double jeopardy if the federal government were restricted to its enumerated powers and created federal crimes only to address the genuinely national issues within its authority. But the duplication of state criminal codes, exemplified in the “interstate domestic abuse” statute, threatens to render double-jeopardy protections meaningless.

Moreover, the federalization of state crimes may deprive the accused of rights and procedural protections afforded by state law but not applicable in federal prosecutions. For example, states may provide broader protections against entrapment, broader rights to pretrial discovery, and even a broader right to counsel. See KAMISAR, LAFAVE, AND ISRAEL, MODERN CRIMINAL PROCEDURE 49, 392-97, 1128-36 (7th ed. 1990). Federal duplication of state criminal codes creates the potential for those rights and protections to be circumvented by the simple expedient of prosecution in federal rather than state court. Indeed, the Petitioner in this case has cited evidence that she was prosecuted in federal court in part so that New York’s requirements for corroboration of accomplice testimony could be avoided. Pet. at p. 24.

But perhaps most importantly, the demise of the doctrine of enumerated powers would leave all individual rights in jeopardy because it would eliminate the Constitution’s first line of defense against an overweening central government. The Bill of Rights was added to the Constitution as a “back-up” system, but the primary protection was meant to reside in the enumeration and hence limitation of powers. As one scholar has noted, “[t]here is no reason to believe * * * that the Bill of Rights itself will survive over the long term if the rest of the plan is abandoned. As National Aeronautics and Space Administration engineers say, once you start relying on the backup systems, you are already in trouble.” Reynolds, supra, CATO INSTITUTE POLICY ANALYSIS NO. 216, Oct. 10, 1994, at p. 28.

Heritage-Federalists care about federalism because it strengthens the states.  Cato-Federalists support federalism because it will help individual liberty flourish. It's two different worldviews ( though as we get into nuance, we agree more with each other).  So now you know not to prejudge a member of the Federalist Society.  Odds are that the Federalist Society is more diverse than the ACLU.

Motion to Dismiss in Hobbs Act Case

I just found this wonderfully written motion to dismiss in a Hobbs Act case that covers the major themes relating to the federalization of crime.  It's very well-written and researched.  It begins:

Mr. Defendant stands charged of various offences, the most significant of them brought before this Court under the Hobbs Act.1 Counts one and two of the Indictment refer to the death of Mr. during a robbery at his home, in Ponce, Puerto Rico, in which approximately $500.00 were stolen and which allegedly were the proceeds from a gasoline station in Peñuelas, Puerto Rico.

The “jurisdictional hook” to prosecute this events in the Federal forum is an allegation that the robbery of that money affected the interstate commerce and thus violated the Hobbs Act, 18 U.S.C. 1951.

If the money was indeed stolen is uncertain from the evidence produced in discovery so far by the United States. On the police report of the officer responding to the emergency, dated July 9, 1997, it is stated that no property was stolen. Cooperating co-defendant , has stated that no money was stolen from the house of Mr Blank.  On the other hand, two years after the facts, on October 14, 1999, and after being interviewed by the FBI, the son of the victim alleged that some money (approximately $500) had “disappeared”. Notwithstanding this discrepancy, which ultimately is an issue for the Jury, this Motion approaches the subject assuming that the $500.00 were indeed stolen.

As will be discussed below, defendant contends that this Court lacks jurisdiction over Counts One and Two of the Indictment, since the Hobbs Act was not violated. The central issue will be if under United States v. Lopez, and its progeny, Section 1951(a) applies to robbery directed against private individual in their homes.

Local Police Enforce Federalism, not Federal Law

Talkleft details Long Beach, CA police following and enforcing California law, rather than the dictates of John Ashcroft.

The American Constitution Society Meets Federalism

Ian Millhister, EIC of the ACS Blog has a thought-provoking post entitled: When Conservative Doctrines Collide: Medical Marijuana Meets Federalism.

Ian begins:

Last December, the Ninth Circuit held in Ashcroft v. Raich that federal anti-drug laws do not apply to locally cultivated cannabis. Their decision, which is now under review by the Supreme Court, effectively decriminalizes medical marijuana use in California, so long as that use complies with that state’s Compassionate Use Act. Some conservative activists immediately condemned the decision as another example of “liberal judicial activism” from a court that’s been “overturned more times than pancakes at IHOP.” In truth, however, the odd thing about Raich isn’t its activism, but instead its rigid compliance with prior Supreme Court precedent.

Almost a decade ago, a conservative 5-4 majority in U.S. v. Lopez sparked a revolution in federalism jurisprudence by overturning the Gun Free School Zones Act of 1990. Speaking for the Court, Chief Justice Rehnquist held that guns in schools do not have a substantial enough impact on interstate commerce to fall within the Congress’ Commerce Power. Five years later, a similar reasoning was applied to invalidate the Violence Against Women Act in U.S. v. Morison. Both decisions were hailed by conservative groups, with some even arguing they did not go far enough.

Please read the rest of the post here.

Washington, D.C. and Inner-cities

TalkLeft provides commentary on S.1735, futher federal encroachment into state and local law enforcement.

Below is Congress' summary of the law:

Gang Prevention and Effective Deterrence Act of 2003 - Criminal Street Gang Abatement Act - Amends the Federal criminal code to prohibit various criminal street gang-related offenses, including participating in a criminal street gang by committing two or more predicate gang crimes in furtherance of the activities of such gang to gain entrance to, or to maintain or increase position in, the gang.

Amends: (1) the Controlled Substances Act to prohibit murder and other violent crimes committed during and in relation to a drug trafficking crime; and (2) the Violent Crime Control and Law Enforcement Act of 1994 to authorize the use of grants by the Attorney General to fund programs that enable prosecutors to more effectively address gang violence, to fund technology and training for prosecutors, and to create and expand witness and victim protection programs.

Authorizes the Attorney General to designate high intensity interstate gang activity areas.

Prohibits travelling in, or causing another to travel in, interstate or foreign commerce with intent that two or more murders be committed in violation of State or Federal law.

Expands the scope of predicate crimes for authorization of interception of wire, oral, and electronic communications to cover violations relating to criminal street gangs.

Modifies code provisions regarding the treatment of Federal juvenile offenders. Provides that, in any case in which a juvenile is tried as an adult in Federal court, that juvenile's criminal record shall be made available in the same manner as is applicable to the Federal criminal records of adult defendants.

Whatever happens, Public Defender Dude warns us to beware lying gang experts.

Federalism and Firearms

The CATO Institute held a forum entitled, "Federalism Under the Gun: Banning City Lawsuits, Federalizing Gun Crime" that is available for free download here.

CrimLaw Comments on Fed-Soc Report

CrimLaw summarized a recent Federalist Society report on the growth of federal crimes here.

Sabri v. United States

The Sabri opinion is now available at SCOTUS.  Marty Lederman has an excellent summary here.

Federalism and the Federal Prosecution of State and Local Corruption

 Professor Peter J. Henning has an excellent article (that does not read that much like a law review article) here.  The author's executive summary is below:

The Article considers the application of federalism to determine the constitutionality of federal statutes used to prosecute corruption of state and local officials. The question of the federal government's role in enforcing criminal laws against state and local officials has become especially relevant since the Supreme Court's decisions in United States v. Lopez and United States v. Morrison, which invalidated federal statutes because they exceeded congressional authority to regulate in areas already subject to the police power of the states. The Court relied in part on the principle of federalism embedded in the constitutional structure to limit Congress' power to regulate certain types of conduct, specifically crimes of violence.

Did the Tenth Amendment Amend the Commerce Clause?

We know that the 11th Amendment amended Article III section 2.  We also know that the 11th Amendment stripped Congress of its power to abrogate a state's sovereign immunity using its Article I powers.  We also know that Congress may abrogate a state's sovereign immunity under Section 5 of the 14th Amendment, because the 14th Amendment amended the 11th Amendment.

The Court's analysis of the above issues have focused on the chronology of the constitutional amendments.  Since the 14th Amendment came after the 11th Amendment (and since Congress presumably has knowledge of all prior Supreme Court cases interpreting the Constitution), we can infer that Congress and the people intended to give the federal government power to subject an unconsenting state to suit in federal court for violating the 14th Amendment.

The Tenth Amendment, which codifies the principle of federalism by reserving all power not delegated to the states or the people, came after the Commerce Clause.  Congress was not delegated a police power.  This power rested historically with the states.  Does this mean that criminal laws passed under the Commerce Clause deserve heightened scrutiny?

What did Alexander Hamilton know About the Commerce Clause?

The Constitution was ratified in 1787: the Bill of Rights was added two years later.  Several states conditioned their ratification of the Constitution on the inclusion of a bill of rights.  Alexander Hamilton thought a bill of rights would be unnecessary and dangerous.  In the Federalist No. 84, he wrote:

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kinds and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince." 

But our American Constitution was different.  It recognized that our rights did not flow from the King.  We created the government.  We did not need a contract between us and our king.  Hamilton continued: "[Under our Constitution,] the people surrender nothing, and as they retain everything, they have no need of particular reservations." 

Alexander Hamilton cited the preamble to the Constitution: "We the people of the United States [ ] do ordain and establish this Constitution" as proof that we did not need a bill of rights.   Since we created a government of limited powers, we did not need a contract protecting our rights.  The American Constitution was "a better recognition of popular rights than volumes of those aphorisms which make the principle figure in several of our state bill of rights, and which would sound much better in a treatise of ethics than in a constitution of government."

Moreover, Hamilton feared "declar[ing] that things shall not be done which there is  no power to do?  Why for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" 

Can anyone today argue that Congress would lack power under the Commerce Clause to regulate the press?  What did we learn about the Commerce Clause that Alexander Hamilton missed?

Federalism as Individual Right

Most people say that because I am a federalist, then I support states' rights.  They say I should keep company with the likes of a Jesse Helms, Trent Lott, or John C. Calhoun.  My employers and friends would find tha ironic, since the past 2 years I have worked soley on plaintiffs' Section 1983 and criminal cases for the defense.  Is a civil libertarian like me confused?

No.  Federalism is an individual right that should be as jealously guarded as the rest of the Bill of Rights.  In the criminal context, it becomes manifestly clear why. 

Each time Congress exercises power over offense conduct that is also a state crime, the following injustices occur:

• 1. A citizen may suffer successive prosecutions because the Supreme Court held that it does not violate the Double Jeopardy Clause to allow the state and federal governments to prosecute the same individual for the same offense conduct if that conduct violates both state and federal law.  The pit bull gets two bites at a defendant'’s jugular.
• 2. A citizen is subject to harsher penalties under federal law because most states confer upon their judges extensive discretion: the Guidelines provide almost none.  State prosecutors know this and often threaten to dismiss state charges to allow their friends at the US Attorneys office to file in federal court.
• 3. A citizen is not afforded his full constitutional rights.  This is because the federal Bill of Rights provides a floor on individual rights.  States may not offer less protection in their state constitutions than are provided in the Constitution, but states may offer more.  When a citizen is prosecuted in federal court for acts that also violate state law, the individual is not receiving his full potential protection under the law.
• 4. Acts that do not violate state law may violate federal laws.  The best example of this the federal crime of statutory rape, one of many Mann Acts.  It makes it a crime to move interstate to have sex with someone under 18 years old.  And although the age of consent varies from state to state, it is not a defense that the states from which (and to which) one moved has a lower age of consent than under federal law.  Thus, a person who travels from State A, where the age of consent is 16 years old to State B, where the age of consent is also 16 years old has committed statutory rape.

It is thus obvious that federalism has implications on individual rights.  But is it a right in itself?

The capital-f Federalists - most notably, Alexander Hamilton and James Madison - vociferously argued against a Bill of Rights.  They argued that listing individual rights was unnecessary because Congress' power was curtailed.  Congress can not reach you.  Its power is too narrow.  The structure of the Constitution limits federal power and thus leaves the people more free.

The structure of the Constitution was not enough for many states -- They conditioned their consent to the Constitution on the immediate amendment of the Constitution by adding a Bill of Rights.  Madison and Hamilton lost that debate.

Indeed, included in the Bill of Rights is the Tenth Amendment, which provides that "The powers not delegated to the United States by the Constitution [ ] are reserved to the States respectively, or to the people."  Since the Tenth Amendment is included in the Bill of Rights, it is tautological to say that we have an individual right to be free from excessive Congressional power.