Tag Archives: federalism

Meanwhile, Under The Radar….

One of the problems with political discourse grows out of specialization–as the world around us gets more and more complicated, people who are experts in different fields, who use different vocabularies and operate from within different conceptual frameworks have trouble communicating with each other and with the public.

This “silo-ing” can be frustrating, and it’s made worse by the unnecessary use of jargon. But a lot of it is inevitable. I can’t follow the more detailed statistical analyses of my economics colleagues, or the computations that support climate science, or the medical terminology my doctor uses.

Similarly, very few Americans follow legal matters that are more complex than an episode of “Law and Order.” That’s why a case currently pending before the Supreme Court has gotten very little attention, despite its potential consequences. The case is Gamble v. United States.

To its credit, The Atlantic had an article explaining the issue, and those consequences.

Gamble addresses a fairly arcane area of constitutional jurisprudence:  the dual-sovereignty doctrine. That’s a 150-year-old exception to the Fifth Amendment’s prohibition of double-jeopardy. In plain English, the doctrine allows state and federal courts to prosecute the same person for the same criminal offense.

And why, you are asking yourselves, should you give a rat’s patootie about that?

Within the context of the Mueller probe, legal observers have seen the dual-sovereignty doctrine as a check on President Donald Trump’s power: It could discourage him from trying to shut down the Mueller investigation or pardon anyone caught up in the probe, because the pardon wouldn’t be applied to state charges. Under settled law, if Trump were to pardon his former campaign chairman Paul Manafort, for example—he was convicted last month in federal court on eight counts of tax and bank fraud—both New York and Virginia state prosecutors could still charge him for any crimes that violated their respective laws. (Both states have a double-jeopardy law that bars secondary state prosecutions for committing “the same act,” but there are important exceptions, as the Fordham University School of Law professor Jed Shugerman has noted.)

If the dual-sovereignty doctrine were to be tossed, then Trump’s pardon could theoretically protect Manafort from state action.

Senator Orrin Hatch has submitted a brief in the case, arguing that the doctrine should be invalidated, although he claims the Mueller investigation has nothing to do with it. (Pardon me while I snicker….)

Here’s the analysis: If Trump shuts down the Russia investigation, Mueller  could “farm out” cases to state-level attorneys general. Those AGs can’t be shut down by Trump and they can, within some limits, charge people with state crimes, even after those people have received a federal pardon. If the dual-sovereignty doctrine is invalidated, however, a federal pardon would essentially block a subsequent state-level prosecution.

The original issues in the case had nothing to do with the Russia investigation; it began as a relatively arcane argument about how federalism should work. And Paul Rosenzweig, a senior fellow at the conservative R Street Institute thinks it may not have the effect that Orrin Hatch evidently thinks it will.

Trump’s pardon power is “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States,’” Rosenzweig said. If that language is interpreted to mean federal criminal offenses specifically, a Trump pardon wouldn’t protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble.

If that Constitutional language is interpreted that way. But it probably won’t be, if Brett Kavanaugh–or someone like him– is on the Court.

That’s one example of why judicial philosophy–and appointments to the Court– matter a lot more than many people think.

The Devil’s In The Details

We used to call this federalism.

I really do respect the research done by the Brookings Institution. Overall, I find their methodologies appropriate and their conclusions sound. But every once in a while, I see an “essay” that makes me wonder what the authors have been smoking. The linked article on “constitutional localism” falls into that category.

Specifically, we call for a new civic ethos or governing framework which we call Constitutional Localism, that will shift the greatest number of public decisions possible to the community level—albeit within a clear constitutional framework to protect the individual freedoms and rights won over the past 250 years.

We see the pursuit by Americans of varied lifestyles and cultural preferences as a healthy sign of American freedom and choice, not a destructive force. We need to rebuild public confidence in American democracy, not by insisting on a singular national answer to each problem, but by celebrating the ability of America’s varied communities to find solutions that work best for them. As we see it, the challenge confronting the nation is to find a way to permit this range of opinion and action to flourish while restoring a shared faith in the common democratic values and processes that define American self-government.

Where to start?

First of all–and most obvious–the framework they suggest is the legal framework we have–a significant, albeit diminishing, degree of state autonomy, constrained by the requirement that local laws not violate the Bill of Rights.

The fact that “localism” often doesn’t look very local is a function of 21st Century reality: the inter-related needs of national (and increasingly global) commerce; the ease with which citizens and criminals can cross state lines, the national nature of many threats we face–from medical epidemics to terrorist attacks to acid rain. Etc.

The challenge is to determine what sorts of rules are properly the purview of local lawmakers, and which need to be national in scope. Americans have engaged in arguments about this since the Articles of Confederation. In my state, Indiana, municipalities face the same issue–a longstanding debate about the state legislature’s refusal to allow meaningful home rule by cities and towns.

People of good will can–and will–argue about what political scientists call “devolution,” and what partisans dub “state’s rights.” Which rules should be left to the locals, and which must be made nationally or even globally? To what extent should citizens think of themselves as part of the broad American fabric, and to what extent members of various sub-constituencies? How much consistency is needed to create unum from our pluribus, and how much is too much?

There is a modern twist to this age-old debate, and it is disquieting.

I have blogged previously about The Big Sort and the growing urban/rural divide. Americans appear to be “sorting” ourselves into like-minded communities, geographical “bubbles” where we can live with people who think and act like us. It is part of the polarization that has kept government from working toward that elusive something called “the common good.” Do we really want to encourage cities to create various iterations of “people’s republics” while more rural areas establish enclaves ruled by “Christian Talibans”?

At what point does autonomy become separatism? Inquiring minds want to know…

 

Net Neutrality

Well, they did it. Trump’s Verizon  puppet at the FCC–after a campaign of disinformation and downright dishonesty–got his (and Verizon’s) fondest wish: they voted yesterday to dispense with Obama-era rules protecting Net Neutrality.

If you are one of the many Americans who is unfamiliar with this policy, or unsure why it matters, Vox has a comprehensive explanation; if you have less time, Paul Krugman recently offered a concise analogy. Asked for his thoughts on the impending vote, and on the policy, he responded that

… for a democratic society, and also just for a society that is open to new ideas, level playing fields are really important. One of the great unifying things that we did very early on in our country’s history was to establish a postal service, where the cost of sending a letter was the same no matter who was sending it, no matter how far you were sending it…

We’ve done very, very well with providers not allowed to discriminate among different users. This is something that’s very much not broken. Why try to fix it?

This assault on Internet equality is just one of the myriad Trump Administration efforts to remake our country into a plutocracy–to make America “great” for the powerful and wealthy.

It gets harder and harder to keep track of the wholesale de-regulation that Trump insists will unleash the productivity of the market–the rollbacks of environmental regulations that keep our air breathable and our water drinkable, the withdrawal of measures to protect students from fraudulent private colleges and sexual assaults, reversal of regulations preventing fossil fuel companies from despoiling protected lands….I teach public policy, so following all of these efforts to eviscerate the rules of fair play (and not-so-incidentally, anything Obama did or favored) is part of my job–and I can’t begin to keep up.

Before the election of this monumentally ignorant man, I was not a huge fan of robust federalism, or the argument that state “laboratories of democracy” would, or at least could, constrain unwise federal policies. As I’ve watched sensible state governments respond to Trumpism by protecting immigrants, decriminalizing marijuana, enacting stringent environmental protections and demonstrating that raising taxes actually promotes economic growth, I’ve warmed to the wisdom of that argument.

And now…

Washington State has followed the shameful vote against Net Neutrality with an announcement that it will fill the void and protect Internet users: 

On the eve of an expected vote by the Federal Communications Commission to roll back crucial net neutrality rules, Gov. Jay Inslee joined Attorney General Bob Ferguson, legislators, and business leaders to announce state plans to preserve an open internet and protect Washington consumers from internet companies that are not transparent about costs or services.

Inslee wrote a letter to the FCC earlier this month, in which he made a strong case for the retention of current policy.

All Americans, as a matter of principle, should enjoy equal access to the educational, social and economic power of the internet. Ensuring this important technology remains free and unfettered is critical both to our personal freedoms and to our country’s economy,”

Making Washington State’s announcement, Inslee conceded that the FCC’s vote will preempt states from ensuring full net neutrality. But he said states can take a number of steps to promote an open internet and strengthen protections for consumers–and Washington intends to take them:

Hold companies to their commitments not to block websites, throttle speeds, or impose prioritization pricing

  • Direct the state’s Utilities and Transportation Commission (UTC) to establish a process for ISPs to certify that they will not engage in practices inconsistent with net neutrality principles.
  • Limit state-conferred benefits to ISPs that have made such certifications.
  • Limit applicability of UTC pole attachment rules to ISPs that are net neutral.
  • Review other state-conferred benefits such as easements and taxes.

Leverage the state’s power as a large purchaser of ISP and telecommunications services

  • Use the state government’s role as a big customer, and our ability to establish state master contracts used by localities, to incentivize Washington companies to adhere to net neutrality principles.
  • Pursue regulatory and legislative action to award contracts to vendors that meet net neutral business requirements.
  • Lead the exploration of a multi-state purchasing cooperative to procure internet service from providers that adhere to net neutrality principles.

Hold companies accountable for warranties made to consumers

  • Create a state-wide internet speed test. This will allow Washingtonians to test their own broadband speed at home, and submit the test to help appropriate state agencies determine what internet speeds consumers are receiving and where companies may be blocking or throttling.
  • Collaborate with legislators to strengthen our consumer protection laws to include the principles of net neutrality.

Encourage new entrants into the currently concentrated ISP market

  • Pursue legislation authorizing public utility districts and rural and urban port districts to provide retail ISP and telecommunications services.
  • Prohibit government-owned ISP services, such as municipal broadband networks, from engaging in blocking, throttling, or priority pricing for Internet services.

As one Washington state legislator asserted, state governments have the right to prevent a “reckless and power-intoxicated federal government from handing over access to the free flow of information to the largest corporations on this planet.”

If other states follow in Washington’s path, they will do more than protect an essential platform for American democratic discourse.

They’ll make a federalism fan out of this skeptic.

Never Thought I’d Cheer States’ Rights…

It has been somewhat lost among all his other bluster, and more recently by the diversion of his air strike against Syria, but Trump has reiterated his threat to withhold federal monies from so-called “Sanctuary” cities and states. (As many people have pointed out, the sudden onset of humanitarianism that purportedly prompted those airstrikes has yet to prompt a willingness to accept children fleeing the hellhole that is today’s Syria.)

Trump’s threats are evidently as empty as his compassion. Talking Points Memo reports that, thanks to a Supreme Court decision in a lawsuit brought by Republicans opposed to the ACA, Trump can’t withhold funds from states acting humanely. It would be illegal.

File under “be careful what you wish for”….

In 2012, the Supreme Court forced the Obama administration to make Medicaid expansion voluntary for states instead of mandatory, ruling that when the federal government “threatens to terminate other significant independent grants as a means of pressuring the States to accept” a federal policy, it is unconstitutionally coercive.

Conservative groups that celebrated this victory over “infringement on state sovereignty by the federal government” may now be dismayed to learn that it could throw a wrench into the Trump administration’s current plan to punish sanctuary cities.

Attorney General Jeff Sessions recently warned local officials that continued refusal to co-operate with federal immigration authorities would jeopardize approximately $4 billion dollars in unrelated grants; those grants currently support local programs addressing everything from human trafficking, sexual assault, and gang violence to mental health, gun crimes and various public safety issues.

Sessions evidently neglected to research the Administration’s authority to follow through on that threat.

Stripping the cities and counties of this funding, however, is easier said than done. Doing so could violate the 10th Amendment, which protects states’ rights against federal intrusion, and a number of Supreme Court cases, including the 2012 case that struck down Obamacare’s mandatory Medicaid expansion, legal experts warn.

“It may be unconstitutional on several grounds,” said George Washington University Law School professor John Banzhaf III.

Banzhaf argues that U.S. law dating back to the mid-1800s bars the government from “commandeering” local officials to enforce federal law in almost all instances. The 2012 Supreme Court ruling in National Federation of Independent Businesses v. Sebelius expanded on this principle, holding that “states could not be required to expand Medicaid programs under threat of a loss of federal funds—the same coercive method threatened by Sessions—except where the threat was one mandated by Congress and signed into law, not a mere presidential order,” Banzhaf said.

Two other cases–one in 1987 and one from 1997–reinforce the limits on federal coercive power.

In the 1987 decision South Dakota v. Dole — which concerned a government attempt to cut highway funding to states that tried to lower the federal drinking age — the Court said the federal government can only cut grants related to the policy they are trying to enforce. Though the federal government’s argument trumped the state’s in that case, the ruling significantly narrowed the kind of funding the federal government can withhold when attempting to incentivize local governments to carry out a certain policy….

The Court went even further in 1997, ruling in Printz v. United States that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”

Sessions has now indicated that future grants will be conditioned upon compliance with federal immigration law, a tacit admission that– his threats notwithstanding–he cannot reach previous awards issued without such provisions.

I’m sure those staunch defenders of states’ rights–the ones who were so sincere when they explained that their opposition to civil rights laws had nothing to do with racial animus–will applaud this current application of federalism doctrine.

On the other hand, perhaps I shouldn’t hold my breath waiting for their applause….

A Timely Reminder

The most recent issue of the Harvard Law and Policy review was devoted to analyses of the “State of the States: Laboratories of Democracy.” The introductory essay, by Joel Rogers, made an important point that is all too often obscured by our focus on national issues, personalities and campaigns: the federal government really doesn’t run the country.

The federal government controls many public functions, some of them uniquely: macroeconomic policy and interstate commerce, the currency and its value, war and foreign policy. But on nearly everything else that government touches, state and local government play a far greater and more active role. Our national government is essentially a big insurance company, debtor, and gigantic military. Takeaway non-discretionary income transfers, debt service, and national defense, and its 2014 spending was only 0.7% of GDP, its total investment and consumption was only $472 billion, its total non-defense civilian employment was only 1.3 million. By comparison, in that same year, state and local governments spent 10.3% of GDP, did $1.9 trillion of investment and consumption, and employed 14.3 million people respectively, fifteen, four, and eleven times as much as the federal government.

Furthermore, he points out that the areas of our common lives that are subject to local control tend to be areas that are pretty important to most citizens.

That includes, inter alia, the quality of their public schools (where state and local governments not only provide ninety percent of funding, but also control what and who is taught, by whom, and how); environment (through state and local government control of energy use, transportation, most water, and waste disposal); neighborhoods (through their control of land use, zoning, housing, parks and other public spaces, police, and emergency response); and our democracy (through their control of voting rights, campaign and election administration, and decennial redis-
tricting). The power of the federal government is distant, and slight, com-
pared to this.

Take a close look at the list of decisions made by state and local government units, and then consider which candidates and/or parties are most likely to perform those tasks competently and in the public interest.

Here in Indiana, at the state level, the Pence administration has a truly deplorable record on education (what some have characterized as a “war” on public schools). It has fought environmental regulations to the point of suing to avoid compliance. And the Indiana legislature has an equally deplorable record, especially when it comes to democracy: not just redistricting, which has allowed legislators to choose their voters, rather than the other way around, but refusing to extend voting hours  or to consider other measures to encourage, rather than discourage, voting.

We need to remember the importance of our “down-ticket” choices when we go to the polls in November. Donald Trump may pose a more existential threat, but that’s no excuse for failing to appreciate the importance of offices closer to home.