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Kansas v. Carr Podcast

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Justice Antonin Scalia's last opinion for the U. S. Supreme Court was Kansas v. Carr, decided 8-1 on January 20.  The Federalist Society has this podcast on the decision, by yours truly.
I noted here that attorneys from the Justice Department had, with only a thin layer of ostensible politeness, warned state judges that they had best ease up enforcement in traffic cases against deadbeats and scofflaws. I see now, in this article in the NY Post, that the Department has ratcheted up the pressure with a letter from the Attorney General herself.

Again and again we hear from libertarians and liberals that the feds have taken too much of a hand in matters that ought to be left to state and local authorities.  We hear this caterwauling most loudly about drugs.  We have heard it for at least forty years, and we still hear it all the time.

But if drugs are one sort of problem that should be left to state and local judgment, dealing with traffic citations must be the quintessential matter.  

Let me know when, in dealing with this episode, you hear a liberal or a supposed libertarian complain about Big Government federal sprawl, much less about the spectacle of prosecutors menacing judges.  There was a time when that was considered, ummmm, not in keeping with appropriate prosecutorial functioning, but that was then.
Ilya Somin has this post with the above title at the Volokh Conspiracy on the WaPo site.

H.R. 4760, the Blue Lives Matter Act of 2016," is a sweeping bill to make assaults on police officers a federal offense, adding to the list of federal "hate crimes."

Of course it is true that blue lives matter.  It is also true that the police are under attack and need the support of the law-abiding people of this country.  It is also true that the road to hell is paved with good intentions.

Crimes against persons are generally matters of state law.  At times it has been necessary to stretch the boundaries of federal jurisdiction when states were failing in their constitutional obligation to provide equal protection of the laws, such as the murders of civil rights workers over half a century ago. 

Those dark times are long behind us.  State governments are perfectly capable of prosecuting crimes against police officers.  Federalizing the issue will not help.

The lines between state and federal jurisdiction are there for good reasons.  We should be restoring and fortifying them, not punching new holes in them.
Rory Little has this summary at SCOTUSblog of the criminal and related cases for the coming Supreme Court term.  What I found most interesting, though, is what is not there.  Not a single case of a state prisoner challenging his conviction or sentence in federal court has been scheduled for oral argument next term.

The full list of cases taken up for the next term so far is here.  Not a single "CFH" on the list.  There are two "CSH" cases, where the Supreme Court has taken a habeas corpus (or equivalent) case directly from the state courts.  There are four "CSY" cases, straight criminal appeals from state courts.  (Two of these arise from the same case, and a third presents a common question with the two.  CJLF has filed a single brief in all three.)  There are three "CFY" cases, federal criminal appeals.

Federal habeas for state prisoners lies at the crossroads of federalism, criminal law, and protection of individual rights, and that intersection has been the site of many collisions.  It has occupied a disproportionate amount of the Supreme Court's docket for many years.  Maybe not this year.

There are, of course, many more cases to be added.  Daniels v. Webster, discussed in this post by Ian Sonego, is a federal-prisoner habeas case that is highly likely to be added to the docket.

In addition to argued cases, there are summary dispositions, and chastising federal courts that just can't stand the fact that Congress took them down a peg in 1996 will doubtless be among those.  Even so, this could be the lightest term for state-prisoner federal habeas in some time.

As Rory notes, the reason for the Supreme Court to take criminal and habeas cases directly from the state courts is to get straight to the underlying issue without dealing with the limitations placed on the federal habeas remedy by Congress or the Supreme Court itself.  Perhaps the Court believes that the major questions of habeas procedure and limitations have largely been addressed and wishes to devote more attention to the underlying criminal law and procedure questions.

Sanctuary Cities and Blood

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Miriam Jordan and Zusha Elinson report for the WSJ:

The fatal shooting of a woman in San Francisco last week, allegedly by an illegal immigrant man convicted of seven felonies and previously deported to Mexico, has sparked a debate about the extent to which local law enforcement and federal immigration authorities should cooperate.

At issue is the Department of Homeland Security's practice of seeking to identify potentially deportable individuals in jails or prisons nationwide by issuing a "detainer," a request rather than an order to extend the individual's detention.

Kathryn Steinle, 32 years old, was walking with her father along Pier 14 on the evening of July 1 when she was shot in her upper torso, police said. She later died at a hospital.

*                               *                             *

On March 26, [the suspect, Francisco] Sanchez was booked into the San Francisco County Jail on a local drug-related warrant after serving a federal prison term, the city's sheriff's office said. The next day, Mr. Sanchez appeared in San Francisco Superior Court and the drug charges were dismissed.

Yesterday in the comments to Bill's post, Doug Berman raised the question of whether the Charleston killer should be prosecuted in state or federal court.  I will repost my answer here:

State. No question in my mind.

Unlike the Boston Marathon, this was not a national and international event but rather a local church. Also, there is no reason, at this point, to believe this murderer's attack was any kind of terrorist attack on the United States as a nation, as Tsarnaev's was.

There is no state action here, and any effect on interstate commerce is very tenuous. There was a time, half a century ago, when federal criminal law needed to be stretched to cover local cases of violence by individuals with no state action involved because state and local government was unable or unwilling to deliver justice and thus people were denied equal protection of the laws. Those days are long behind us.
Events are moving right along.  Valerie Bauerlein reports in the WSJ:
From the Answers to Questions Practically No One Is Asking File ... Did a statute enacted almost 20 years ago abrogate a Supreme Court decision rendered almost 40 years ago with hardly anyone noticing, even though this involves a very heavily litigated area of law?  Nope, even the Ninth Circuit won't buy that.
This morning, speaking from her well-appointed headquarters in Washington, DC, Attorney General Loretta Lynch announced a federal probe of the Baltimore Police Department for what she implied are repeated and serious violations of the constitutional rights of criminal suspects and, apparently, numerous others:

The "pattern or practice" investigation into the Baltimore Police Department will center on police officers' use of force, stops, searches and arrests, as well as allegations of discriminatory policing practices. If the DOJ finds a pattern of civil rights abuses, it will pursue a legally binding settlement to secure systemic reform.

To translate:  DOJ plans to wring a consent decree out of the Baltimore PD in which the feds will henceforth run the Department.

Meanwhile, on Long Island, a different event was taking place.  So far as I have been able to discover, neither Ms. Lynch nor any lower-ranking figure from the Department of Justice took the trouble to attend.

NY Speaker Arrested for Corruption

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Reid Wilson reports for the WaPo:

Federal agents on Thursday arrested powerful New York Assembly Speaker Sheldon Silver (D) on federal corruption charges, stemming from payments he received from two New York City law firms.
Jennifer Queliz, a spokeswoman for the U.S. Attorney's office in the Southern District of New York, confirmed Silver was in custody Thursday morning. U.S. Attorney Preet Bharara will hold a press conference Thursday afternoon to announce the charges.
There is an interesting federalism question on the constitutional basis for federal prosecution of corrupt state officials.  It generally hinges on some tenuous connection with mail or interstate commerce.  In my view, a corrupt official denies the honest people of the state equal protection of the laws.  The bribe-payor gets special treatment that the honest people do not.  That is, of course, why he pays the bribe.  I haven't gotten any takers for my view yet.

Whatever the basis, prosecuting corrupt state officials is one of the most important functions of federal law enforcement.  Some valiant prosecutors do go after crooks who hold their purse strings, but we cannot expect that as a matter of course.
As noted in today's News Scan, the states of Nebraska and Oklahoma have filed suit in the Supreme Court against Colorado over its marijuana law.  Here are a few random thoughts.

My first impression was that such a suit would be meritless, bordering on frivolous.  Of course a state is within its constitutional authority to not prohibit something.  After skimming quickly through the complaint, though, it is more nuanced than that.  The gist of the claim is that the Colorado law involves its government in affirmatively promoting a trafficking in marijuana that violates federal law.  I will have to study it more carefully to form an opinion on the merits of the complaint.

Procedurally, there is some inside baseball on the peculiarities of Supreme Court jurisdiction.

Time and Again

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Opening its new term, the U.S. Supreme Court has once again unanimously chastised the notorious Ninth Circuit for once again ignoring the limits placed by Congress on its authority to second-guess reasonable decisions on debatable questions of law by the state courts with primary jurisdiction over a case.  The opinion begins (emphasis added):

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. §2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is "clearly established." See, e.g., Marshall v. Rodgers, 569 U. S. __, __ (2013) (per curiam) (slip op. at 6). Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith.
The case is Lopez v. Smith, No. 13-346.

There is a broad spectrum of viewpoints on the Supreme Court today, but when there is not a single justice who thinks the court of appeals' decision is correct, when the error is so obvious that it doesn't even require full briefing and argument, and when the same pattern recurs "time and again," there is something gravely wrong with some of our courts of appeals (mostly those divisible by 3).

The continuing violation of this provision by some of the lower federal courts is the largest-scale defiance of federal law since the "massive resistance" campaign in the wake of Brown v. Board of Education (1954).  Except this time federal courts are perpetrators of the violations instead of enforcers of the law.

Federalism and Other Head Fakes

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We've been hearing for years that if drugs are to criminalized at all, it should be left to the states, and that the federal government has no business in the field.

There are legitimate questions about the scope both of federal police power and the reach of its authority under the Commerce Clause.  In my view, such questions are more pressing now than ever in light of the ominous combination of the burgeoning regulatory state and the increased politicization of the Justice Department.  But the question whether the federal Controlled Substances Act is within Congress's power has been raised and settled long ago.  To my knowledge, after dozens if not hundreds of challenges, not a single court has held the CSA unconstitutional, and the most serious challenge to it was rejected almost ten years ago in Gonzales v. Raich.

One must wonder, though, about the authenticity of the complaints about federal overreach.  While many such arguments are rooted in a sincere if (in my view) mistaken view of federal power, others  --  most, I suspect  --  are just bellyaching by dopers who love getting blasted and want to belittle anything that stops the fun.

If these people were sincere in their federalism arguments, surely I would be hearing from them about the U.S. Justice Department's astonishing decision to "order" a second autopsy of the victim of the police shooting in Ferguson, Mo.  In my numerous years as a federal prosecutor, and more recently as a law professor, I never heard that the Justice Department had the authority to order any such thing. I'll be grateful to any reader  --  especially among those wanting criminal law to be left almost exclusively to the states  -- who can fill me in.
The Sixth Circuit Court of Appeals has ruled that a Michigan man did not violate federal forced labor laws by having children do household chores. The court found that 18 U.S.C. § 1589, a statute designed to prevent forced labor by threat, harm, or abuse, does not extend to activities conducted by children in the home traditionally seen as normative chores. The opinion is here.

Jean-Claude Toviave, an immigrant from Togo in 2001, illegally brought four young relatives - a younger sister, two cousins, and a nephew - to live with him in 2006. After they arrived, Toviave made the children cook, clean, and do the laundry. He also occasionally made the children babysit for his girlfriend and relatives. Toviave would often beat the children if they misbehaved, didn't follow his rules, or failed to perform assigned chores. He was apparently quick to beat the children and did so with a myriad of objects as well as has fists.

After school personnel became worried about abuse in the home, they contacted local authorities and an investigation ensued. The Department of Homeland Security became involved once it became clear that the children had come into the country illegally. Toviave was charged with visa fraud, mail fraud, forced labor, and human trafficking. He pled guilty to visa and mail fraud, the trafficking charge was dropped, and he proceeded to trial on the forced labor charge. He was convicted of four counts of forced labor, one for each child.

While complicated by the fact that Toviave was neither the children's biological father nor their legal guardian, the Sixth Circuit found unanimously that while the abuse the children suffered was reprehensible and cruel, Toviave had not violated 18 U.S.C. § 1589.

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.


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