Tag Archives: federalism

Time To Rethink Federalism

I used to begin my classes in Law and Public Policy with what I call the “constitutional architecture,” the structures of U.S. government. As I would tell students, the Founders had divided authority both vertically and horizontally–through Separation of Powers and Federalism.

Most graduate students were familiar with those terms. Undergraduates generally knew that we had three branches of government, although the term “Separation of Powers” was less familiar to them, but very few could define federalism–the division of jurisdiction between the federal government and the states. Both mechanisms were intended to provide “checks and balances”–to limit the power of the central government.

The world we inhabit is very different from the world that confronted the nation’s founders. We still need federalism–but it is past time to review and adjust the current divisions of authority among local, state and federal levels of government.

A number of those divisions are still useful and should be retained. State and federal governments have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, to choose a couple of examples, but other current assignments of responsibility no longer make much sense. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, it’s an invitation to misconduct–an invitation that  state-level lawmakers eagerly accept.

In a number of areas, there are awkward pretenses of state “sovereignty” where contemporary realities mean none really exists. (Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the similar “strings” attached to federal funding.) 

At the other end of the spectrum, there are an increasing number of issues, including but certainly not limited to the threats posed by climate change and the pandemic, that must be addressed globally.

Then there are the increasing tensions created by legislators in red states who want to be free of the constraints imposed by the Bill of Rights.

The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until Donald Trump managed to pack the Supreme Court with rightwing ideologues–they have been forbidden to retract them.

There are multiple reasons to revisit the division of authority between the nation’s state and federal governments. I realize that any effort to do so would be met with alarm–much as we’ve seen with calls to eliminate the filibuster that currently prevents the Senate from actually governing. We humans are creatures of habit: we become accustomed to the world we have grown up with, and assume that the structures of whatever society we inhabit are just “the way it is.” (A great example: the people who argued against same-sex marriage by insisting that marriage “has always been between one man and one woman.” That’s demonstrably false. Even if you ignore biblical history, more than half of the world still recognizes plural marriage. But it was true within the confines of their limited experience.)

A recent guest essay in The New York Times pointed to the undeniably negative effect of our current federalism on public health.

Tennessee and North Carolina are both digging out from catastrophic flooding, while parts of Louisiana were flattened by Hurricane Ida, and most of New Orleans remains without electricity. Ida’s remnants also brought even more rain to areas of the South and beyond that were already dangerously waterlogged.

In the Utter Failure to Understand What “Pro-Life” Really Means tournament, normally a very close battle in the red states, Texas is currently uncontested: Its leaders just made it easier to carry a gun and harder to end an unwanted pregnancy in the same week.

Finally, in the Colossally Botched Medical Emergency competition, it’s neck and neck across the region as Republican governors double down on efforts to block mask and vaccine mandates, along with every other pandemic-mitigation attempt made by people who are not allergic to science.

The author points out that every single one of these disasters is a public health emergency that red state governors have worsened “in every way imaginable.” (A recent NBC poll confirmed that politics has played havoc with public health. It found 91 percent of Biden voters vaccinated opposed to 50 percent of Trump voters.)

 Citizens’ health and safety– and the extent of their civil rights–  should not depend upon their state of residence. 

Skinning That Cat

There’s an old adage to the effect that there is more than one way to skin a cat. I thought about that when I read a recent opinion column in the New York Times, focusing on Mitch McConnell’s packing of the federal bench with rightwing judges.

The article began by acknowledging that McConnell and Trump–enabled by their allies in the Senate– have packed the federal courts with more than 200 conservative judges over the last four years. Their remaking of the federal judiciary includes three Supreme Court justices, and is part and parcel of the rightwing effort to achieve what it could never manage to achieve through legislation– “including eliminating health care for millions and undermining what remains of the Voting Rights Act.”

The authors of the essay remind readers that we are not entirely helpless in the face of this ideological takeover; they advocate taking a page from the conservatives and forging “a new form of progressive federalism.” 

First, state elected officials must be ready to respond quickly to, or act in advance of, rulings from the Supreme Court. If, for example, the Affordable Care Act is weakened or struck down, Democratic state legislatures should have bills drafted to introduce that day to protect people who will lose coverage. And officials must act now to protect and expand access to reproductive health care — especially for poor women and women of color — given the clear threat to Roe v. Wade.

Are excessively business-friendly federal courts making it easier for companies to pollute? Harder for government agencies to address racism? Progressive states can pass policies “to patch holes ripped open” by those courts.

if the Supreme Court further constrains the Consumer Financial Protection Bureau, states can go after corporations for violations of state securities and consumer protection statutes. If the court adopts cramped readings of federal environmental statutes, state regulators must use their tools to go after the country’s largest polluters. And if the court continues to undermine federal bribery laws, state attorneys general can bring corrupt politicians to justice under state criminal law.

What about states like Indiana, deep red and highly unlikely to follow that prescription? In those states, progressive advocacy groups and lawyers outside government can bring lawsuits to enforce rights protected by state constitutions. When I was Executive Director of Indiana’s ACLU, our affiliate brought such suits, and several were successful. And in the early days of the gay rights movement, organizations like Lambda Legal and the ACLU achieved state-by-state victories that ultimately helped change a nationally homophobic legal environment.

Recently, Nevada became the first state in the country to officially protect same-sex marriage in its Constitution. As the essay reminds us, several states have refused to allow their police take part in the federal government’s immigration crackdown. States

can rely on conservative decisions that promote state independence from the heavy hand of Washington. The very jurisprudential tools that make it harder for Washington to achieve progressive aims can empower states to do so instead.

Ironically, the same federalism that facilitated slavery and Jim Crow under the veil of “states’ rights” can be turned to progressive ends.

It’s slower and will take more work, but there’s more than one way to skin that cat.

 

Federalism On Steroids?

There are many observations we might make about the newest Supreme Court Justice and the travesty of her elevation. Assuming Democratic reluctance to enlarge the Court in a tit-for-tat response to the last 12 years of GOP court packing, one of those observations concerns prospects for federalism and states’ rights.

As Elizabeth Warren noted in a speech opposing Barrett, the nominee carefully refused to answer numerous important questions. She wouldn’t say whether the Supreme Court ruling upholding the right to contraception was correct, or whether the government is entitled to criminalize a same-sex relationship. Despite the applause from Republicans about the size of her family (seven children!), she refused to opine that it’s wrong to separate children from their parents at the border. She called climate change “controversial.” She evaded  many other inquiries, including what should have been considered “softball” questions: whether it’s OK to intimidate voters at the polls, and whether a president has the right to postpone an election.

When she held up that blank notepad she’d brought to the hearing, it was evident that the pristine paper was her reminder to abstain from sharing anything resembling content.

it is likely that Barrett will join Trump’s other regressive Court picks, and rubber-stamp state laws that violate rights we have come to view as American, endorsing a radical federalism allowing the rights of individuals to be defined by the states in which they live.

I’ve previously posted about the demographic shifts we’ve seen and the effects those shifts have had on equal treatment and “one person, one vote.” I’ve previously recommended Bill Bishop’s book The Big Sort, and its analysis of what he called “voting with our feet.” The likelihood of a radical return to “states’ rights” is likely to super-charge that residential apartheid.

States like Indiana already struggle to retain young people–especially educated young people. Red states like ours will rush to take advantage of their new imperviousness to federal constitutional constraints. They won’t just outlaw abortion (and in some states, access to birth control), they’ll expand gun rights, restrict access to health care and eviscerate their already paltry social safety nets. The Court has already declined to interfere with a variety of vote suppression tactics that favor the GOP–everything from gerrymandering, to ballot counting, to poll hours and locations.

The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until now–they have been forbidden to retract them.

The new approach to federalism–what one might call “federalism on steroids”–will upend that understanding of American citizenship. The extent of your rights will depend upon your state of residence. If the young people with whom I interact are any indication, that’s a situation that threatens to leave a number of red states with a dwindling and aging population.

America has already seen its population shift to urban areas. As the “creative class” (and those who want to employ them) described by Richard Florida increasingly cluster in vibrant municipalities, those urban locations become even more attractive.

Gay families aren’t going to locate in states that refuse to recognize their marriages or parental rights. Women aren’t going to choose locations that allow the government to dictate their most intimate decisions. Few families will want to live in states where gun owners are encouraged to bring firearms everywhere, including schools. (And don’t think this is hyperbole–here in Indiana, we have state representatives who work constantly to legislate that “freedom.’)

States offering universal healthcare (a la Massachusetts) will look awfully good to a lot of Americans.

I wonder: At what point do “states’ rights” and a commitment to expanded “local control” end up creating separate and not-so-equal  parts of what has been one country? At what point will fiscally healthy blue states decide to stop supporting “taker” red states?

When does federalism on steroids translate into secession?

 

The Pandemic And The Constitution

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about the shutdowns, the “stay-in-place” orders? Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think it is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.

 

 

The Pandemic And The Constitution

Faculty at the O’Neill School of Public and Environmental Affairs, where I teach, decided to put together a special course addressing issues raised by the pandemic. Those of us involved will each teach one class session; mine, unsurprisingly, will look at the civil liberties issues involved. The question I will explore is whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.

When I began to do some research in preparation for the class, I found the pandemic raising a more significant number of constitutional issues than I had anticipated. Many of those issues lack clear answers.

One of the most visible—and contentious—of those issues involves federalism. Federalism, as readers of this blog know, is the structure under which government jurisdiction is divided between federal, state and local units of government. What does the law say about the role of the federal government in a pandemic? What powers are reserved to the states?

There has been a great deal of public and official confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, and at the same time has disclaimed responsibility for tasks that he says are state responsibilities. Several of his statements have been inconsistent with the Constitution (I know–you’re shocked), which vests primary responsibility with the states, and anticipates support, co-ordination and assistance from the federal government.

Other questions: Does a pandemic allow government to impose more stringent limits on the First Amendment right to assemble? This issue arises in several ways: citizens have  protested state orders requiring masks and social distancing (some of those protestors have been armed). Those eruptions have been much smaller (and weirder) than the massive  Black Lives Matter demonstrations following the murder of George Floyd–but both challenge efforts to control the pandemic.

Then there are the shutdowns, the “stay-in-place” orders. Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. (Government does have to demonstrate the reasonableness of those measures and their utility in ameliorating the threat of contagion.)

What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” Can they do that?

We are hearing a lot about new cellphone apps being developed to permit “contact tracing.” That technology has been met with considerable alarm from privacy advocates and organizations concerned about increasing government surveillance. The potential for misuse is high–and limitations on use of these technologies remain legally ambiguous.

The right to vote is obviously a critically-important constitutional right (not to mention a necessary guarantor of democracy) and the pandemic has further enabled efforts at vote suppression. Conflicts about the availability of absentee ballots for people fearful of the Coronavirus have already erupted, and efforts to expand vote-by-mail are being frantically resisted by Republicans. (The debate is further complicated by the evident inability of many states to handle increased voting by mail.)

Several states have used pandemic restrictions to justify denying women access to abortion. There is considerable debate about the degree to which those restrictions can be imposed, and a case from Texas (of course!) has been appealed to the Supreme Court.

The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.

Incarcerated persons, and those being detained by ICE face hugely increased medical risks and unique constitutional questions: what about an inmate’s right to consult with his or her lawyer? At what point do the conditions of confinement–the likelihood of contagion– rise to the level of “cruel and unusual punishment”?

A fascinating case that has recently been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of deliberate disinformation be held liable for damages? The case is Washington League for Increased Transparency and Ethics v. Fox News .The complaint alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

It is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the equivalent of “falsely shouting fire in a crowded theater.”

And you thought the only thing to fear was the Coronavirus itself…