Federalism

  • August 8, 2013
    Guest Post

    by Pratheepan Gulasekaram, Associate Professor of Law, Santa Clara University, and author of the ACS Issue Brief Restrictive State and Local Immigration Laws: Solutions in Search of Problems.

    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.

  • May 1, 2013

    by Jeremy Leaming

    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.

    As the East Bay Express notes, Calif. officials are pleading with the federal government to back off. Assemblyman Tom Ammiano has asked the state to be permitted to regulate the industry “without the threat of new widespread prosecutions of medical providers.” In an interview with CNN last fall, the Express reported, Brown said, “It’s time for the Justice Department to recognize the sovereignty of the states. … We have a laboratory of democracy. We don’t always agree. … I believe the president and justice department ought to respect the will of these sovereign states.”

    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.

  • April 26, 2013

    by Jeremy Leaming

    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.

  • April 17, 2013
    Guest Post

    by Mary Bonauto and Paul Smith. Ms. Bonauto is the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders in Boston. She was lead counsel in the Goodridge Massachusetts marriage case in 2003. Mr. Smith practices law in Washington, D.C. and argued the landmark Lawrence v. Texas gay rights case in the Supreme Court in 2003.


    We are co-counsel in two of the lawsuits challenging the Defense of Marriage Act that are now awaiting the Supreme Court’s ruling in United States v. Windsor. We principally chose “DOMA” as a litigation target because it so clearly denies gay and lesbian married couples the equal protection of the law guaranteed by the Constitution -- treating those married couples, and only those couples,  as though they are single for purposes of all 1,100-plus federal laws that take marital status into account. Significantly though, DOMA also involves a decision by Congress to second-guess the choices made by individual states that have married same-sex couples. By defining “marriage,” for all federal purposes, as limited to heterosexual unions, the law vitiates the States’ determination that married same-sex couples are married for federal purposes. The ability to say who is married has been the virtually exclusive domain of the states -- not Congress -- and is bounded only by other constitutional guarantees of due process and equal protection.

    We have always felt that this limited federalism aspect of the DOMA litigation is also helpful on the equal protection challenge. In our briefs (as in Edie Windsor’s in the Supreme Court), the fact that states control marriage policy in this country is used to undercut the claimed justifications for discriminating based on sexual orientation that have been offered up by the law’s defenders.  Although neither we nor Windsor raised these claims, one state, the Commonwealth of Massachusetts, has its own pending case in which it argues that DOMA undermines state prerogatives to license marriages for same-sex couples as it does for others. A prominent amicus brief by conservative legal scholars filed in the Windsor case also sounded concerns that DOMA goes beyond defining marriage for federal purposes and interferes with state law. And at the Supreme Court arguments on March 27, Justice Kennedy and others asked questions suggesting they might agree that DOMA violates principles of federalism.

    But the prospect that the Court might give considerable weight to federalism in a decision invalidating DOMA has caused grave concerns among some progressive observers – most notably Linda Greenhouse in her recent column ominously named “Trojan Horse.” The primary concern she expressed was that a decision invalidating DOMA on federalism grounds would, by emphasizing the primacy of states in setting marriage policy, somehow immunize from constitutional challenge those states that have chosen not to extend marriage rights to same-sex couples. But this concern reflects a mixing of constitutional apples and oranges.

  • November 15, 2012

    by Jeremy Leaming

    Following on the victories for limited legalization of marijuana in Colorado and Washington, advocates for legalization are gearing up for more state action. Andrew Sullivan in a post, “The Legalization Tipping Point,” notes that lawmakers in Rhode Island, Maine, Massachusetts, and Vermont are contemplating legalization legislation.

    Legislators from Rhode Island and Maine during a teleconference today conducted by the Marijuana Policy Project discussed their plans to introduce measures that would decriminalize marijuana and allow the states to tax and regulate it “in a manner similar to alcohol.” The MPP statement about the call said lawmakers in Massachusetts and Vermont were planning on introducing similar legislation.

    In the MPP press announcement, Robert Capecchi, the group’s legislative analyst lauded last week’s victories, noting both ballot initiatives passed with about 55 percent in favor. He also declared, “We are passing the tipping point when it comes to this issue. Unfortunately, lawmakers have traditionally been behind public opinion when it comes to marijuana policy reform. With these thoughtful legislators in at least four states planning on introducing sensible proposals to remove criminal penalties and regulate marijuana in their states, it’s clear that ending marijuana prohibition is gaining momentum.”

    A string of states – 17 – and the District of Columbia already have laws permitting varying uses of marijuana for medicinal purposes. Denver’s medical marijuana industry, even with the efforts by the federal government to impede it, has become robust. But we still do not know how the Department of Justice will respond to the measures approved in Colo. and Wash.