by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
Editor’s Note: This Thursday, November 7, the ACS Pittsburgh Lawyer Chapter and the University of Pittsburgh School of Law Student Chapter will host a Supreme Court Preview featuring Professor Tushnet and Professor Jules Lobel of the University of Pittsburgh School of Law. To hear more from Professors Tushnet and Lobel about Bond and the rest of the Court’s October Term 2013, please RSVP here.
The Roberts Court is properly described as a business-friendly Court. It’s also a Court that is sort of friendly toward federalism, as the commerce clause holding in the Affordable Care Act decision – though thankfully not the ultimate outcome – shows. But, federalism and business interests sometimes come into conflict. Businesses operating on a national scale often hope that Congress will preempt state regulations, so that they face only a single national rule rather than fifty or more regulations different in every state and sometimes in a bunch of cities. And, when Congress doesn’t make it clear that its statutes preempt state regulations, businesses want the Court to interpret federal statutes to be preemptive.
On Tuesday, the Court heard oral argument in Bond v. United States, a bizarre case on its facts that raises important questions about the scope of Congress’s power to enact statutes implementing treaties. The arguments suggested that some of the Court’s conservatives, and perhaps Justice Breyer, were inclined to say that Congress couldn’t use its power to implement treaties to reach truly local activities (although the precise formulation of the restriction they might adopt wasn’t clear).
Everyone seemed to agree, though, that the Bill of Rights limited the power to implement a treaty. And, whatever you might say about the treaty power and federalism, that does indeed seem to be a consensus position.
The consensus might be on a collision course with business interests, though, for the same reason that businesses sometimes favor preemption and national regulation over state regulation. In a forthcoming article in the Harvard Law Review, Marvin Ammori describes what he learned from general counsels at major commercial disseminators of information over the internet. For them, Ammori reports, Congress is basically just one state legislature or city council trying to regulate their activity along with a whole bunch of other legislatures – parliaments in France and Japan, and everywhere else. And, just as with preemption, these businesses might want to replace a system of lots of different regulations with one regulatory system.
Environmental law is safe from legal challenge under the Spending Clause’s new coercion doctrine. That’s the bottom line of Erin Ryan’s new ACS Issue Brief. Professor Ryan, an associate professor at Lewis & Clark Law School, is an expert on environmental and natural resources law and federalism. Her issue brief makes a compelling case that the federal environmental grant programs are not likely vulnerable under the new coercion doctrine that emerged two Terms ago in NFIB v. Sebelius, in which the Supreme Court largely upheld the Affordable Care Act but, significantly, struck down the Act’s expansion of Medicaid as unconstitutionally coercive under the Spending Clause.
I agree with Professor Ryan’s analysis and want to make the case that the same is true about federal education law. In fact, as the second highest source of federal support to the states after Medicaid, federal education law makes a good case study under the new coercion doctrine. If the federal education laws are likely to succumb to the doctrine’s constraints, then maybe the Court’s Medicaid decision is just the tip of the iceberg, and a lot of federal spending programs are going down. If, on the other hand, the federal education laws are not likely to be problematic under the new coercion doctrine, then conditional spending in the federal regulatory state is likely to survive relatively unscathed. My work suggests that this second story is more persuasive.
As Professor Ryan notes, the NFIB Court’s fractured opinions failed to set forth the terms of the new coercion doctrine with anything like precision, but consensus is emerging that the doctrine has essentially three parts. (For the plurality, that is; the joint dissent -- in agreement with the plurality that the Medicaid expansion was coercive -- would focus only on the last part.) First, does the condition in question threaten to take away funds for a separate and independent program, or does the condition merely govern the use of the funds? If it just governs the use of funds, then the program is not coercive.
The second question arises if the condition does threaten funds for an independent program. This question asks whether the states had sufficient notice at the time they accepted funds for the first program that they would also have to comply with the second program. If they did, then the inquiry ends once more with the conclusion that the program is not coercive.
The third question arises only if there was no such notice. This question asks whether the amount of funding at stake is so significant that the threat to withdraw it constitutes what the plurality calls “economic dragooning.” Only if this last question is reached and the answer is yes would a program be coercive.
Since the Supreme Court decided United States v. Arizona last summer (and Whiting v. Chamber of Commerce in 2011), circuit courts have been busy applying the opinion to immigration regulations percolating through the federal courts in their respective jurisdictions. The Third Circuit in Lozano v. Hazleton invalidated the Hazleton, Pennsylvania employment and rental ordinances; the Fourth Circuit in United States v. South Carolina invalidated sections of South Carolina’s immigration enforcement scheme; the Fifth Circuit in Villas at Parkside Partners v. Farmers Branch invalidated the Farmers Branch, Texas rental ordinance; and the Eleventh Circuit invalidated sections of Alabama’s and Georgia’s immigration enforcement schemes. These decisions reduce some of the legal uncertainty surrounding the recent proliferation of subfederal immigration legislation. Notably, however, they also leave some important questions unanswered. And, they do so in a way that is doctrinally precarious.
First, based on the Arizona Court’s decision not to enjoin §2(B) of SB 1070, a few provisions of state enforcement schemes in South Carolina, Alabama, and Georgia were left intact. Following Arizona’s lead, the Northern District of Georgia (on remand from the Eleventh Circuit), rejected a facial challenge to § 8 of the state’s 2011 Illegal Immigration Reform and Enforcement Act, which allows local law enforcement officers to investigate the immigration status of individuals if the officials have probable cause that the individual committed a crime and if that individual cannot produce adequate proof of lawful status. Fourth Amendment or other constitutional challenges to that provision must now proceed on an as-applied basis, similar to the ongoing litigation challenge to SB 1070’s § 2(B). Litigation on these provisions will take some time to resolve the important racial profiling and discrimination concerns implicated by local law enforcement participation in immigration matters.
Supposedly the Obama administration’s justice department has “bigger fish to fry” than people possessing small amounts of marijuana for recreational use. The president’s statement to ABC News not long after his reelection regarded Colorado and Washington, where voters approved initiatives decriminalizing some amounts of marijuana for recreational use.
But during his first term, President Obama also said his administration would not follow the path of his predecessor in harassing and shutting down medical marijuana dispensaries in the states that have enacted medical marijuana laws. More than a dozen states and the District of Columbia have medical marijuana laws. But late last year, Robert Wilbur reported that during its first three-and-half years the administration had “conducted more raids on state-licensed dispensaries than the Bush administration did in eight years.”
So while the Obama administration’s rhetoric regarding the so-called war on drugs has softened, its policies are still weighted heavily to tough-on-drug measures. A post earlier this week noted the administration’s Office of National Drug Control Policy is continuing its strategies laid out in 2010, including allotting more money for tough-on-drug tactics.
Reporting for Salon, Natasha Lennard focuses on the Obama-appointed U.S. Attorney for the Northern District of California Melinda Haag who is “threatening landlords housing medical marijuana dispensaries with 40 years in federal prison.” Citing the East Bay Express, Haag has apparently been obsessed with the shuttering dispensaries and harassing landlords that house them is a part of the strategy.
California passed its medical marijuana initiative in 1996 with 56 percent of the vote. But because the Drug Enforcement Agency is stuck in 1936 – marijuana is a dangerous drug that will lead to “delinquent behavior” and “open the door” to other drugs -- the federal government continues to spend boatloads of money and time on disrupting states’ efforts to regulate their medical marijuana industries.
Leaving states to their own devices, of course, cannot always be a good thing. For instance when states seek to limit liberty, like denying same-sex couples the right to wed, that’s not at all a bit helpful to democracy. But generally progress can occur when states seek to expand liberty or protections of liberty.
Despite the rhetoric to move beyond a perpetual “war on drugs” the Obama administration remains mired in the tough-on-drugs mindset and its Justice Department seems befuddled by the states that have legalized small amounts of marijuana for recreational use.
The Government Accountability Office (GAO) issued a report revealing that the administration’s goals set out in 2010 have largely not been met. The report noted that the Office of National Drug Control Policy and other federal agencies established “seven Strategy goals related to reducing illicit drug use and its consequences by 2015.” GAO continued, “As of March 2013,” its “analysis showed that of the five goals for which primary data on results were available, one shows progress and four show no progress.”
But, as The Huffington Post’s Matt Sledge reports drug czar Gil Kerlikowske, head of the Office of National Drug Control Policy has just released another drug control plan that builds on the policies the GAO has said are not working. More troubling, Sledge notes that the drug office’s budget “still devotes less than half of it funds to treatment and prevention. The GAO found that prevention and treatment programs are ‘fragmented’ across 15 federal agencies.”
In an April 24 post on its web site, the Office of National Drug Control Policy bemoans “illicit drug use,” claiming “drug-induced overdose deaths now surpass homicides and car crashes as the leading cause of injury or death in America.” It also declares “we cannot arrest or incarcerate our way out of the drug problem.”
The language from the administration’s drug control office is softer than rhetoric about the “war on drugs,” which the Nixon administration launched with the enactment of the Controlled Substances Act (CSA) several decades ago. But the administration’s drug control office is not embracing drug legalization or even any changes to the CSA, such as removing marijuana from the list of drugs deemed as dangerous as say heroin.
The muddled message from the Obama administration -- not helped by its Justice Department’s silence on how it will respond to Colorado and Washington, where officials are crafting measures to implement and regulate the recreational use of marijuana -- is preserving tough-on-drugs policies.