Federalism

  • January 16, 2018
    Guest Post

    by Sam Kamin, Vicente Sederberg Professor of Marijuana Law and Policy, The University of Denver Sturm College of Law

    When Attorney General Jeff Sessions announced last week that he was rescinding the 2013 Cole Memorandum, marijuana policy was once again back on the national stage. The Cole Memo, issued by the Obama Justice Department, stated that those using, producing, or selling marijuana in compliance with robust state regulations would not be targeted by federal prosecutors. With the Cole Memo gone, there was renewed concern that state-level marijuana law reform could be undone by federal enforcement of the Controlled Substances Act (CSA).

    The reaction against Sessions’s action was swift. Republican Senator Cory Gardner took to the floor of the Senate, condemning Sessions’s decision as a broken promise. Senator Gardner also announced that that he would block all Justice Department nominations until the Attorney General made good on his pledge to defer to the states on marijuana policy. Others on both sides of the aisle made similar calls on Sessions to respect the will of the voters in the 29 states that made marijuana legally available for at least some adults.

  • December 11, 2017
    Guest Post

    by Andrew Wright, Associate Professor, Savannah Law School

    Michael Flynn is cooperating with Special Counsel Robert Mueller’s investigation. The plea agreement requires that Flynn “shall cooperate fully, truthfully, completely, and forthrightly with this Office and other Federal, state, and local law enforcement authorities identified by this Office.” Flynn’s statement of the offense ominously announces that “[t]hese facts do not constitute all of the facts known to the parties concerning the charged offense.” There is some debate about whether this agreement signals that Flynn has significant incriminating information about senior-most White House advisors, or President Trump himself. Only Flynn, Mueller, and the others whom Flynn might implicate on matters related to the investigation are in a position to know the quality of his cooperation.

    But what if President Trump started using his pardon power to end the Russia investigation? What would be the effect, if any, if President Trump pardoned Flynn now? What about pardons of others that might be implicated by Flynn in his cooperation? Pardons raise a number of important questions after Flynn’s plea.

  • October 31, 2017
    Guest Post

    by Jeff Mandell, partner at Stafford Rosenbaum LLP and Chair of the ACS Madison Lawyer Chapter.

    Tomorrow, the Supreme Court hears argument in Artis v. District of Columbia, a procedural dispute about the interaction of federal jurisdictional statutes and state limitation periods. It is fairly dry stuff, so much so that it drew only two amicus briefs, far below average. But one of those amicus briefs, filed by the State of Wisconsin and joined by 23 others States, attempts to constitutionalize the dispute, with broad implications.

  • May 24, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Dennis Herrera, San Francisco City Attorney

    When Ronald Reagan used his 1983 State of the Union Address to foreshadow a sweeping proposal to devolve vast powers from the federal government back to states and localities, he described his New Federalism initiative as an effort “to restore to states and local governments their roles as dynamic laboratories of change in a creative society.”

    Liberal critics at the time regarded the New Federalism as a thin veiling for a full-scale federal retreat from progressive social policy — which, of course, it was. In subsequent years, as successive Congresses grappled with mounting budget deficits and as the federal bench grew increasingly conservative, Reagan’s efforts to return power to local governments would indeed take hold among his presidency’s most enduring legacies.

    Today, progressive state and local governments should embrace the principles behind New Federalism as a way to push back against a federal administration that threatens constitutional protections and many of the values these localities hold. In the few months that President Donald Trump has been in office, state and local governments have successfully thwarted his attempts to carry out some of his most misguided initiatives.

    When President Trump issued an executive order that sought to strip federal funding from sanctuary jurisdictions, San Francisco and other local governments acted swiftly to fight back. My office filed the first lawsuit in the nation to challenge the Executive Order, and the County of Santa Clara and other local jurisdictions soon followed us. In April, Federal Judge William Orrick issued a nationwide preliminary injunction that temporarily halted enforcement of the president’s executive order, recognizing the Executive Order likely violates the Separation of Powers, the Spending Clause, the Tenth Amendment, and other constitutional provisions.

  • April 27, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law. Follow Professor Winkler on Twitter @adamwinkler.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Oral argument in the Supreme Court can be opaque, especially for those who aren’t well versed in the legal issues at stake or the precedents likely to be considered.  During oral argument, the justices aren’t interested in educating the citizenry.  They are trying to gain a better understanding of the case or subtly influencing the votes of their colleagues, so the questions and comments fly  quickly—and usually right over the heads of anyone but the experts.  Because oral argument in the same-sex marriages cases will draw an extraordinary amount of public attention, here’s a list of five things to watch for when the justices hold Court on April 28.

     

    1.    Justice Kennedy

    The first and most obvious thing to pay careful attention to is the questioning by Justice Anthony Kennedy.  With four justices who lean liberal and four who lean conservative, the Supreme Court has long been the Kennedy Court.  Because Kennedy has written all the major pro-gay rights decisions of the Supreme Court in recent years, many people assume he’ll vote in favor of marriage equality.  If I were a betting person, that’s where I’d put my money, too.  Yet it’s worth remembering that Kennedy’s opinions in those cases have always been compromises.  In Romer v. Evans, he declined to say that sexual orientation was a suspect classification.  In Lawrence v. Texas, he didn’t say gay intimacy was a fundamental right that triggered strict scrutiny.  In U.S. v. Windsor, half his opinion rested on states’ rights.  If Kennedy was serious in Windsor’s ode to the traditional autonomy of states over marriage, it could spell trouble.  That’s why it’s worth paying close attention to what Kennedy says at oral argument.  Is he skeptical of the state’s arguments?  Does he express concern about the implications of overturning the marriage bans?  Or does he emphasize the harms that come from denying LGBT couples marriage?  Kennedy, in this as in most other cases, is the vote that counts.

    2.    Baker v. Nelson

    Often lost in the current debate over marriage is that the Supreme Court has already held there is no constitutional right to same-sex marriage.  Or at least that’s one way to read Baker v. Nelson, a 1971 case that raised the issue.  The Minnesota Supreme Court upheld that state’s restriction of marriage to one man and one woman, and the case was appealed to the Supreme Court of the United States.  The justices summarily affirmed the lower court decision “for want of a substantial federal question.”  In other words, the challenge to the marriage ban didn’t even raise a colorable constitutional claim.  Will the justices treat Baker as binding precedent warranting their deference under the principle of stare decisis?  There are good reasons to believe they won’t.  The law and society has changed immensely since 1971.  Back then, laws discriminating against women didn’t even trigger any form of heightened review.  Besides, do the justices ever really treat any prior decision as binding?