Separation of Powers and Federalism

  • December 12, 2012

    by Jeremy Leaming

    If the Obama administration decides to move aggressively to scuttle efforts in Colorado and Washington State to take a different – many would say progressive – approach to the war on marijuana it won’t be because the administration had no alternative. Indeed plenty of academics, pundits and federal lawmakers are hoping the administration will support, not hinder, the experimentations in those two progressive Western states and are airing plenty of ways the administration could respond.

    University of Denver law school professor Sam Kamin detailed some of the possibilities the government could take with respect to the marijuana legalization initiatives that passed with strong support in Colorado and Washington. One of the possibilities Kamin highlighted was a bill recently introduced by Rep. Diana DeGette (D-Colo.) “allowing states to essentially opt of the CSA [Controlled Substances Act outlaws marijuana and is administrated by the Drug Enforcement Agency] enforcement by passing laws that conflict with the federal prohibition ….”

    Rep. DeGette in a press statement announcing the legislation said several of her colleagues were concerned “about the federal government’s ability to override these voter-approved initiatives ….”

    “In Colorado,” DeGette said, “we’ve witnessed the aggressive policies of the federal government in their treatment of legal medicinal marijuana providers. My constituents have spoken and I don’t want the federal government denying money to Colorado or taking punitive steps that would undermine the will of our citizens.”

    In a piece for Rolling Stone, Tim Dickinson writes that while the federal government “cannot force” Colorado and Washington “to impose criminal sanctions on pot possession,” the federal government “has great power” to block the states’ abilities to tax and regulate the sale of marijuana. (In an editorial, the magazine’s publisher Jann S. Wenner hopes the president won’t tap that power and urges an end to the war on weed calling it a “sham, a folly, a colossal waste of money and human potential.”)

  • December 4, 2012

    by Jeremy Leaming

    When the Supreme Court announced in fall 2011 that it would review the constitutionality of the landmark health care reform law, civil rights groups and constitutional experts tried to highlight the lawsuits' threat to  the expansion of Medicaid coverage -- and what it would mean if the Supreme Court adopted the states' arguements against the expansion. If the high court were to decide that Congress had overstepped its spending power by penalizing states for not joining in the expansion of Medicaid it could have a potentially profound impact on other progressive laws, such as the Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972.

    Writing for Slate, Simon Lazarus and Dahlia Lithwick warned that if the high court were to side with the states’ argument against the Affordable Care Act’s expansion of Medicaid (the states argued that they were being unconstitutionally coerced into expanding Medicaid) then other programs run by the states with federal dollars could be in jeopardy. The ACA sought to expand Medicaid coverage to adults below 133 percent of the Federal Poverty Line. In a 2011 ACS Issue Brief, Lazarus, senior counsel at the Constitutional Accountability Center, described the states’ arguments against the Medicaid expansion as proposing “a radical upheaval in applicable constitutional law.”

    But the National Women’s Law Center’s Emily J. Martin in an ACS Issue Brief released today argues that the majority’s spending clause analysis from the high court’s ACA opinion from late June does not pose a danger to the major federal law aimed at stopping discrimination against women – Title IX.

    Title IX, in part, states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ….”

    Martin, vice president and general counsel at NWLC, provides great detail on why the Roberts Court’s spending clause analysis would not undermine the antidiscrimination law and also notes that even if Title IX were vulnerable to a spending clause challenge based on the ACA decision, it would still survive because it is an appropriate means for Congress to enforce the Fourteenth Amendment’s equal protection clause.

  • November 8, 2012

    by Jeremy Leaming

    As Colorado voters were debating whether to support a ballot measure to legalize small amounts of marijuana, some fretted about fueling drug tourism. But the more obvious difficulty Colorado and Washington State, where a similar legalization measure was approved, face centers on the federal government and its law that sees marijuana as more dangerous than heroine.

    As University of Denver law school Professor Sam Kamin told “60 Minutes” not long before the elections, the federal government has not been easy on the states that have legalized medical marijuana use. The government is employing several tactics to undermine the medical marijuana industry in Colorado – a fairly robust one – despite the challenges. Part of what the federal government does, according to Kamin, is to threaten banks with prosecution under the Controlled Substances Act if they help the medical marijuana industry to expand.

    It seems safe to assume for the moment that the federal government will not look any more favorably on the limited legalization laws in Colorado and Washington than it has on states were medical marijuana has been legalized.

    Alison Holcomb an attorney and leader of the campaign for Washington’s Initiative 502, sounded an optimistic note upon its passage, saying the state had “looked at 70 years of marijuana prohibition and said its time for a new approach,” the Associated Press reported. The Seattle Weekly in a Sept. profile of her work, lauded her for bringing together a “jaw-dropping list of sponsors – including travel guru Rick Steves, City Attorney Pete Holmes and former U.S. Attorney and Bush appointee John McKay – and keeps winning more and more endorsements as time goes on.”

    Washington’s initiative creates a system of state-regulated marijuana growers and allows adults to buy up to an ounce. Colorado’s Amendment 64 will allow those over 21 to buy an ounce of marijuana and permit people to grow a limited amount of marijuana.

  • September 10, 2012

    by Joseph Jerome

    Recently in The New York Times, Adam Liptak cautioned that the legislative paralysis brought on by congressional polarization has made the Supreme Court increasingly more powerful, but a dysfunctional legislature can also increase the power of the presidency. Issue after issue, important separation of powers principles are being distorted as the other branches assert their power. In the courts, this produces policy without accountability. When the president acts without Congress, it creates a democracy governed by executive decree.

    In our system of checks and balances, power grabs, particularly by the executive, are not surprising. “[A]ll the time, presidents are pushing out on the boundaries of their power and claiming new authority,” Professor William Howell explains, but the president’s ability to secure that authority is dependent upon how the other branches respond. If Congress’ failure to address calls for cybersecurity legislation is any indication, Congress’ response these days is simply to pass the buck over and over again.

    Before leaving for its recent recess, congressional dysfunction was on a full display when the Senate failed to overcome a filibuster of the Cybersecurity Act of 2012. The Senate’s treatment of the issue devolved into a circus, with longtime allies Sens. Joe Lieberman (I-Conn.) and John McCain (R-Ariz.) arguing over each other’s national security bona fides. The legislative breakdown followed a familiar pattern:  after Senate Majority Leader Harry Reid refused to permit additional amendments to the bill, the threat of a Republican filibuster ended any further discussion, and the Senate closed for business.

    Sen. Mitch McConnell (R-Ky.) insisted that Republicans did not really wish to filibuster the bill, arguing instead that Republicans only sought to improve the proposed law through their set of amendments.  Yet he failed to mention that one of his own suggestions to “improve” cybersecurity legislation was to completely repeal the Affordable Care Act, leaving Reid to wonder what gutting health care reform had to do with cybersecurity.

  • September 4, 2012

    by Jeremy Leaming

    Late last week seemingly as quiet as possible, the attorney general announced no efforts to prosecute CIA officials accused of being involved in the torture of military prisoners. As The New York Times put it, Attorney General Eric Holder’s “announcement closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners ….”

    Of course Holder’s action will stir more discussion, some of it shrill and way over-the-top, about the Obama administration’s record on national security and conducting a seemingly never-ending war against terrorism. For many liberals the Obama administration’s record in those areas appears just like his predecessor’s.

    Human Rights First issued a strong, clear-headed statement against Holder’s action.

    “Torture is illegal and out of step with American values,” Human Rights First’s Melina Milazzo said in an Aug. 30 press statement. “Attorney General Holder’s announcement is disappointing because it’s well documented that in the aftermath of 9/11 torture and abuse was widespread and systematic. These cases deserved to be taken more seriously from the outset. When you don’t take seriously the duty to investigate criminal acts at the beginning, resolution becomes even more difficult a decade later. It’s is shocking that the department’s review of hundreds of instances of torture and abuse will fail to hold even one person accountable.”

    Such disappointment is warranted, so is sharp, thoughtful criticism.

    But then predictably we are also subject to the overwrought. For example, see actor John Cusack’s lengthy and often insufferable discussion with law professor Jonathan Turley for Truthout. Their discussion drones on and includes claims of “Rubicon lines” being crossed and constitutional principles being trampled. Cusack says Obama has created an “imperial presidency.” Turley, a law professor at George Washington University, whole-heartedly concurs, adding “Oh, President Obama has created an imperial presidency that would have made Richard Nixon bush. It is unbelievable.”