Federalism

  • July 9, 2012
    Guest Post

    By Mae Kuykendall, Professor of Law, Michigan State University, and Director of the Legal E-Marriage Project


    A federal court in Manhattan has entered a summary judgment in favor of Edith Windsor, a widow assessed an estate tax of $363,053 on her spousal inheritance. This sum was assessed because the federal government, pursuant to Section 3 of the Defense of Marriage Act (“DOMA”), deems her Canada-solemnized same-sex marriage nonexistent.

    This holding is the latest defeat for Congress’s 1996 handiwork. With the request by the Obama administration for certiorari to the First Circuit DOMA holding and to a Ninth Circuit DOMA scheduled for September oral argument, and with Prop 8 litigation potentially headed for high court review, Windsor nicely differentiates among the distinctive issues affecting same-sex marriage.

    In Windsor, a brief for intervenors for the U.S. House of Representatives argued that Congress could rationally conclude there is a federal interest in impeding “an unprecedented redefinition of our foundational social institution.” Judge Barbara Jones politely demolished this portentous pronouncement as support for federal law.

    The judge demonstrates that all-or-nothing arguments about same-sex marriage conflate separate questions. The intuition that a loud NO! is final masks the need for nuance. 

    With same-sex marriage, there are several obviously distinctive questions. First, must states affirmatively authorize same-sex marriage by issuing marriage licenses to couples? Second, may the federal government treat as null for federal law a state-created legal status affecting family relations? Third, to what extent are states required to afford recognition to legal statuses created outside the state by sister states? Fourth, what determines whether a state has recognized a given marriage, at a given time?  With differing questions, different factors are at work, and they demand multiple answers.

  • June 26, 2012
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School  


    In Arizona v. U.S., the Supreme Court only upheld Section 2(B) of the highly controversial Arizona immigration law, also known as SB 1070 (Arizona's Senate Bill 1070). Three other provisions of SB 1070 were struck down. Upholding Section 2(B), however, is problematic because it preserves the provision of the bill that invites state and local law enforcement to engage in racial profiling.  

    Section 2(B) is known as the "your papers please" or "show me your papers" provision of the highly controversial law. Some are reassured that the Court recognized that the constitutionality of the "show me your papers" provision of SB 1070 might be reconsidered at some point. The Court suggested the question is now whether Section 2(B) might create a problem of racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, and other constitutional problems. In other words, Section 2(B) is not going to be thrown out now, before the law is implemented. But, if the law results in racial profiling, the Court said that this question could be dealt with in the future, when the evidence surfaces.

    Unfortunately, 25 years of immigration law experimentation with "show me your papers" policies have demonstrated that the future consequences of this provision can already be predicted: Section 2(B) will likely lead to widespread discrimination. 

    Those U.S. citizens and lawful immigrants who may "look or sound foreign" are likely to be the target of scrutiny, simply based upon their appearance. And because states may now perceive that they have the green light to bake "show me your papers" requirements into state immigration law, the racial profiling problems stemming from a "show me your papers"-based immigration policy will likely worsen.

  • June 21, 2012
    Guest Post

    By Erin Ryan, a Fulbright Scholar in China. She is a professor of law at Lewis & Clark Law School, where she will return this summer.  Ryan is also the author of Federalism and the Tug of War Within.This piece first appeared on RegBlog.


    This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. 

    In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days. 

  • May 18, 2012

    by Nicole Flatow

    A federal appeals court rejected a challenge today to the constitutionality of a key section of the Voting Rights Act, concluding that Congress is in the best position to determine how to combat persistent racial discrimination in elections.

    In a 63-page opinion, D.C. Circuit Judge David S. Tatel noted the persistence of “overt racial discrimination” in jurisdictions covered by Section 5, and called such discrimination “one of the gravest evils that Congress can seek to redress.” How best to combat this discrimination, he concluded, is “quintessentially” a legislative judgment.

    “[W]e remain bound by fundamental principles of judicial restraint,” Tatel wrote.

  • April 26, 2012
    BookTalk
    The Immigration Crucible
    Transforming Race, Nation, and the Limits of the Law
    By: 
    Philip A. Kretsedemas

    By Philip A. Kretsedemas, an associate professor of sociology at The University of Massachusetts Boston


    For the past two years, the national debate over police involvement in immigration enforcement has focused on Arizona Senate Bill 1070. When it was first enacted, SB 1070 was widely criticized for the broad discretion it allowed Arizona police to question people about their legal status. Much of this criticism focused on the problem of immigrant racial profiling. Opponents of the bill argued that it opened the door for the indiscriminate interrogation of anyone who looks like an unauthorized migrant.

    Even though these complaints figured prominently in the public debate over SB 1070, it is rather telling that they have dropped out of the legal arguments that have been marshaled against the bill. One reason for this curious situation is that complaints about racial profiling and selective enforcement have historically been framed as violations of Fourth Amendment rights. But it also so happens that the legal challenge against SB 1070 is being led by the Department of Justice which, for obvious reasons, is not interested in setting legal precedents that would limit the search and seizure power of the police. The Supreme Court, which is currently deliberating over the DOJ's lawsuit against SB 1070, also has a history of favoring the discretionary powers of law enforcement over Fourth Amendment considerations.

    It is important to keep this context in mind when evaluating the legal arguments that are being levied against SB 1070. The DOJ is advancing a finely pitched argument which takes issue with the law making powers of local governments but not the search and seizure practices of law enforcement. It is also bears noting that the DOJ is not opposing local immigration laws on principle. The DOJ supported Arizona's employer sanctions law (penalizing businesses that hire unauthorized migrants) which was subsequently upheld by the 9th Circuit and Supreme Court. The federal government also doesn't seem to be opposed, on principle, to the involvement of police in enforcing federal immigration laws. The Obama administration has actually given state and local police new opportunities to enforce immigration laws. It has only taken issue with local enforcement practices that operate outside of the federal-local enforcement arrangements that have already been authorized by federal law.