Recently in Federalism Category

The Over-Criminalization House Hearing

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For those who missed today's House hearing but would like to take a look, the video is here.  Although the Task Force is interested primarily in examining the proliferation of non mens-rea crimes as the regulatory state gets bigger and nastier, today's hearing was about the mandatory minimum debate.  The Congressmen make their opening statements, followed by the witnesses, of whom I was called upon first, starting at about minute 29:00.

I thought the four witnesses did a good job of summarizing the arguments on both sides. Having been a participant, I don't want to grade my own paper, so I'll make only two observations:  First, Ranking Member Conyers was the same complete gentleman he has always been to me, but might have ruined my reputation by accusing me of sounding reasonable.  Second, I have to admit I was happy to see that I have more hair left than anyone at the witness table, and practically any man in the room.

At my age, you count everything.

Federalism for Thee But Not for Me

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Our friends on the defense side are eager to see federal drug laws -- laws they view as "draconian" and none of the federal government's business anyway  --  done away with in favor of state regulation.  When it's pointed out to them that drug abuse and the awful (and awfully expensive) depredations drug abuse create constitute a nationwide concern, they are unpersuaded.  It's a states' rights issue, period. 

But it would seem that states' rights and federalism are a sometime thing. In the wake of the bungled Oklahoma execution, we hear (for example, on SL&P) this question: "Shouldn't Congress be holding hearings to explore federal and state execution methods?"

In a word, no.  It shouldn't be exploring state methods because that is no business of the federal legislature (it might be a business for the federal courts if there is a strong risk in a particular case that those methods violate the Eighth Amendment). And it shouldn't be exploring federal methods in the absence of at least a minimal reason to think there's something wrong with them.

No such reason exists.  There have been a total of three federal executions in the last 50 years (McVeigh, Garza and Jones), and not a whit of evidence that anything went awry with any of them.  Fifty years of success is not really a cause for concern.

Perhaps Congress could trouble itself to examine a federal problem that actually exists, such as, say, looming national bankruptcy.


A Decision on Younger Abstention

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This morning the US Supreme Court decided the Sprint case, having to do with Younger abstention, previously discussed in this post in October. The decision was unanimous in favor of the federal court going ahead and not abstaining.

No criminal cases were decided today, and none will be argued.

Crime of the Century

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Fifty years ago today was one of those moments in history when everyone old enough to be cognizant of public affairs remembers exactly where he was when he heard the news.  I qualify for this one, barely.  It was also the first and last time I saw a newspaper "extra."

A curious note on federalism and criminal law:  Had he lived, Oswald would have been prosecuted for murder by the State of Texas.  Despite multiple past assassinations, assassinating the President was not a federal offense.  18 U.S.C. §1751 was enacted in 1965.

David Bernstein had this post yesterday at the Volokh Conspiracy on the strangeness of the press coverage.
There was a strange hearing in the United States Senate regarding the "stand your ground" laws passed by a number of state legislatures.  Laurie Kellman has this story in the WaPo.  How was it strange?  Well, for starters, the star witness was Sybrina Fulton, the mother of Trayvon Martin, who testified:

"I just wanted to come here to . . . let you know how important it is that we amend this stand your ground, because it certainly did not work in my case," Fulton said, speaking without consulting prepared remarks. "The person that shot and killed my son is walking the streets today. This law does not work."
As we have noted here multiple times, the "stand your ground" aspect of Florida's self-defense law was completely irrelevant to that case.  The prosecution witness established that Martin had Zimmerman pinned on the ground at the time Zimmerman shot him.  "Duty to retreat," the point on which Florida's law differs significantly from the laws of a number of other states, is irrelevant when retreat is not an option.  See this post last July.  The relevant aspects of Florida self-defense law are fairly standard.  How can a law "not work in my case" when it has nothing to do with the case?

The hearing was strange, also, in that it was conducted before a legislative body with no authority to make the requested change in the law.  The circumstances in which a person can use deadly force in self-defense is a matter of state law, and nothing in the United States Constitution authorizes Congress to step in.  Section 5 of the Fourteenth Amendment does allow Congress to override some state laws that are used in a discriminatory manner, but despite all the race-baiting that has gone on in the Martin/Zimmerman matter, the claim that "stand your ground" laws are discriminatory is utterly unsupported.
Tuesday, November 5, is federalism day at the high court.  One case on the docket is Bond v. United States, No. 12-158, a rare criminal case where the defendant is right.  As I noted last January, Carol Bond deserves to be severely punished for her use of poison to get revenge on her former best friend for having an affair with her husband.  But that punishment should be meted out by the Commonwealth of Pennsylvania, not the United States.

The other case is a civil case that concerns a doctrine that often comes up in criminal cases.  That is the Younger doctrine, named for Evelle Younger, District Attorney of Los Angeles back in the turbulent 60s.  A criminal defendant filed suit in federal district court to halt an ongoing prosecution in state court.  The Supreme Court quashed that in Younger v. Harris (1971).  Younger had taken office as AG by the time the case was decided, but it bears his name anyway.

The case before the Supreme Court on November 5 is Sprint Communications Co. v. Jacobs, No. 12-815.  As you might guess from the title, it involves telecommunications regulation.  (Yawn.)  But wait, is the Supreme Court inclined to expand Younger or narrow it?  That might matter the next time a criminal defendant tries to go judge-shopping in federal court when the case belongs in state court. 

Scott Dodson has this preview at SCOTUSblog.  Sprint's main argument seems to be that because the case involves a federal question it should be decided in federal court.  But state courts have been competent to decide questions of federal law from the dawn of the republic.  Congress did not even vest the lower federal courts with "federal question" jurisdiction, as we now know it, until after the Civil War, and the exigencies of Reconstruction are now a fading speck in the rear-view mirror.  I will be rooting for the State of Iowa on this one.
Under the Supreme Court's post-1937 view of the Commerce Clause, Congress has the power to regulate intrastate activity if it affects interstate commerce.  That includes a farmer growing wheat for use on his own farm, the high court decided in my least favorite opinion by my favorite justice, Wickard v. Filburn (1942).  What's good for wheat is good for weed, the court said in Gonzales v. Raich (2005).

Today, the Ninth Circuit decided Montana Shooting Sports Assn. v. Holder, No. 10-36094.

The Montana Legislature passed the Montana Firearms Freedom Act ("MFFA" or "the Act"), which declares that a firearm or ammunition "manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce." Mont. Code Ann. § 30-20-104. It purports to authorize the manufacture and sale of firearms within the state, but imposes certain requirements for a firearm to qualify under the Act, notably that the words "Made in Montana" be "clearly stamped on a central metallic part." Id. § 30-20-106.
Will that dog hunt?  No.

Criminal Law at the Federal Level

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Audio and video from the Federalist Society's First Annual Executive Branch Review Conference are available here.  The criminal law panel, with the above title, features George Terwilliger, John Malcolm, and Mary Beth Buchanan.  Adam Liptak of the NYT moderates.
In the wake of the Zimmerman acquittal, there is predictable talk about invoking the "dual sovereignty" loophole in the double jeopardy rule and prosecuting him for a federal civil rights violation.  (Update: Arian Campo-Flores, Lynn Waddell, and Ashby Jones have this story in the WSJ.  "The Justice Department said Sunday it would weigh whether to file federal criminal charges against George Zimmerman....")

A commenter to Bill's post on the verdict asks how that is possible in the absence of state action.  Good question.

The FBI has this page with plain-English explanations of the principal federal criminal civil rights laws.  (Well, plainer English, compared to the actual statutes.)

Because the federal government, unlike state governments, is one of enumerated powers, any law Congress passes has to have an identifiable authorization in the Constitution.  In United States v. Lopez (1995), the Supreme Court reversed a prosecution under the Gun-Free School Zones Act of 1990 for lack of such a power.  Taking a gun to school did not have enough connection with interstate commerce to support a Commerce Clause argument for federal authority.  In United States v. Morrison (2000), the Court struck down a federal civil remedy for rape under the Violence Against Women Act.

Federal civil rights prosecutions against state actors (e.g., police officers) usually come under 18 U.S.C. §242, which the FBI summary describes thusly (emphasis added): "This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S."  The "color of law" element limits the act to people acting under authority of the State, bringing the statute within Congress's power under §5 of the Fourteenth Amendment to enforce the prohibition on deprivation of rights by States.  "Color of law" is sometimes a stretch, but it is extremely doubtful it could be stretched far enough to cover Zimmerman.  So what's left?

Federalism and Sex Offenses

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The US Supreme Court today decided a case on the Sex Offender Registration and Notification Act (SORNA), a law passed by Congress in 2006.  The majority upholds SORNA as applied to the particular offender in a rather peculiar and fact-specific opinion.  The case is United States v. Kebodeaux, No. 12-418.
Gary Fields and Neil King report in the WSJ:

Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.

The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats. It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.
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Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force. He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.

Efforts at criminal law reform are often covers for people whose real agenda is to repeat the disastrous soft-on-crime mistakes of the 60s and 70s (e.g., California's realignment), so my skeptical antenna goes up immediately.  However, the fact that sensible Sensenbrenner is chairing the committee is reassuring.

Our main concern here at CJLF is with acts that every rational person agrees should be criminal, such as murder, rape, robbery, and burglary.  "Overcriminalization" is the use of criminal law to address issues that should be civil matters, and we are okay with efforts to prune that back.  Indeed, the moral force of the criminal law is enhanced by reserving it for genuinely evil acts with evil intent.  It is diluted by extending it to lesser transgressions and by blurring the distinction between intent and error. 

In addition, most crimes should be matters of state law, and as all-weather federalists we are fine with efforts to trim federal law back to its proper territory.  If the committee comes up with proposals to address these issues without going soft on crimes that genuinely deserve strong punishment and genuinely should be federal, it can make a positive contribution.

Bond Returns

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Carol Bond, that is.  She is a despicable person who may just be right on the legal question.

She is not the only despicable person in the story.  Her husband and best friend had an affair, resulting in the friend's pregnancy.  Bond was certainly justified in being angry and taking action, but poison was over the top.  That is a crime for which she should have been prosecuted and punished -- by the Commonwealth of Pennsylvania.  The question is whether Congress has the authority to make a federal case out of it.  The high court previously decided she had standing to raise this objection.  (Opinion here, prior post here.)

Today the Court took up the substantive question.  Orders list is here.  Rick Pildes has this guest post at the Volokh Conspiracy.  Lyle Denniston has this post at SCOTUSblog.

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