Recently in Federalism Category

Two months ago, I noted that Attorney General Sessions had formally clarified the scope of the defunding provision of President Trump's Executive Order 13768 on so-called sanctuary cities and federal grants. See also this post from April on the misguided injunction against that provision.

After the AG's clarification, the Government moved for reconsideration.  Today, to the surprise of no one, Judge Orrick denied that motion.

Unlike the travel ban case, this case does not involve a temporary order that is or shortly will be moot.  If the Ninth Circuit does not reverse the injunction, it should go to the Supreme Court.

US Attorney for D.C.

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Orin Kerr has this post at the Volokh Conspiracy on the reportedly forthcoming nomination of Jessie Liu for U.S. Attorney for the District of Columbia.

D.C. is a unique district.  Although Congress provided the District with its own elected government and its own state-court-like court system, it did not provide a locally chosen prosecutor.  The U.S. Attorney prosecutes both the inherently federal offenses in U.S. District Court and the "local" offenses (federal only because D.C. is a federal enclave) in the D.C. Superior Court.

The DoJ ranks of the Trump Administration are slowly filling, but it is taking a long time.
The desperate need for Jeff Sessions to turn DOJ's Civil Rights Division upside down has never been on more vivid display than in the juxtaposition of the following stories.

In the first, we see that, under DOJ's consent decree with crime-ridden Baltimore, one subject of considerable attention is the need for police to use the correct pronoun when they interact with citizens.  PowerLine repeats the relevant portion of the decree:

Ensure that BPD officers address and in documentation refer to all members of the public, including LGBT individuals, using the names, pronouns, and titles of respect appropriate to the individual's gender identity as expressed or clarified by the individual. Proof of the person's gender identity, such as an identification card, will not be required. 

To the best of my knowledge (readers please correct me if I'm wrong), there has not been a single episode of murder, robbery or mugging in Baltimore's 288 year history because the police used the wrong pronoun in referring to a gay, bi, or transgender person.

The second story provides a different slant on what Baltimore police might attend to instead of pronouns.


Malignant Neglect in Berkeley?

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Paul Cassell at the Volokh Conspiracy discusses the "black bloc" thugs who violently forced the cancellation of a speech they disagreed with a couple weeks ago and the curious failure of Berkeley authorities to make any arrests of the thugs.  "If a[] Los Angeles Times reporter can find the black bloc attackers," Cassell asks, "why can't the Berkeley authorities?"

I hope UC Berkeley authorities will be able to announce some progress on the investigation soon. They have said that they are working "in close concert with the FBI on an ongoing investigation into the matter." But the same report indicates that the FBI has not confirmed or denied that it is actually conducting an investigation, and it is not immediately clear whether the FBI will find that the attack warrants federal attention.

Local failure to prosecute those who violently interfere with the rights of others -- because the locals have more sympathy with the thugs than those they attack -- is an old problem.  Congress addressed it in the Ku Klux Act, signed by President Grant in 1871.  This case will warrant federal attention if Berkeley police fail to act. 

Executive Order on Sanctuary Cities

Congress enacted this law over 20 years ago (8 U.S.C. ยง 1373(a)):

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
And, of course, the Constitution has provided since its ratification in 1788: 

This Constitution, and the laws of the United States which shall be made in pursuance thereof ..., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
So there is no real question that state or local laws which contradict the federal law are void.  But what to do about it?  Today President Trump issued as executive order titled Enhancing Public Safety in the Interior of the United States, which provides in part:
The U.S. Supreme Court decided two cases this morning involving the reach of federal law under the Commerce Clauses of the Constitution.

Taylor v. United States, No. 14-6166, deals with one of the broadest laws for extending federal criminal jurisdiction to seemingly local cases, the Hobbs Act.  Any robbery affecting interstate commerce is within federal jurisdiction, and given the post-1937 definition of interstate commerce, that is a very broad sweep.  In today's case, any robbery of drug dealers can be a federal offense.

RJR Nabisco v. European Community, No. 15-138, involves civil suits under the Racketeer Influenced and Corrupt Organizations Act.  The Court puts some limits on this much-misused procedure, blocking civil RICO suits where the acts are all outside the United States.

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.

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