Recently in Federalism Category

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

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.

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?

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