#16: Preempting Pot

Soon, we’ll be reading a commerce power case called Gonzales v. Raich (2005). In that case, the Court held that Commerce Clause gives Congress the power to regulate the intrastate cultivation and possession of marijuana for medical use. Because the Controlled Substances Act (21 U.S.C. 801) was a constitutionally permissible use of federal power, the law could be validly applied to California residents who possessed marijuana for medical use under California’s Prop 215.

“The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is “`superior to that of the States to provide for the welfare or necessities of their inhabitants,'” however legitimate or dire those necessities may be. Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause, so too state action cannot circumscribe Congress’ plenary commerce power.”Compassionate Use Act of 1996). The Court used the language of preemption when discussing the right of the federal government to pursue violations of the Controlled Substances Act in California, even when the violators were using marijuana in accordance with what is permissible under state law:

The Court’s decision in Raich, however, did not fully “preempt” California law. While the federal government reserved its right to enforce its stricter marijuana laws in California, state enforcement agencies were not obliged to follow.

This enforcement conundrum has only increased as more states have adopted more permissive marijuana laws. In light of the recent decriminalization measures in Colorado and Washington State, the Department of Justice has had to confront this difficulty head-on.

In a Senate Judiciary Committee hearing last year, the Deputy Attorney General addressed the problem of enforcement. Read this summary of the hearing.

In the hearing, Deputy AG James Cole invoked the 10th Amendment in his argument about why the federal government will not challenge the legalization of marijuana in Colorado and Washington. This has flummoxed some conservative opponents of legalization. Read this WND article about the controversy. In it, Rep. Cory Gardner (R-CO) is quoted as asking:

“Eric Holder has said that states cannot opt out of federal law, yet here he is doing the exact opposite. What is the administration’s guidance on when a state can assert 10th amendment freedoms and when they can’t?”

This issue is on its way to the courts, and Colorado is in the hot seat. Colorado is being sued by neighboring states over the legalization. SCOTUSblog has a primer on the litigation here. Colorado is now also being sued by residents of the state. Read this article for a quick background on the issue.

Paper Topic #16: What does this conflict–and the DOJ’s apparent capitulation on marijuana laws–say about federalism today, especially in light of the recreational use legalization laws in Washington and Colorado? How will Colorado fare in the litigation instigated by Nebraska and Oklahoma?

Suggested Reading: Renehan, A. (2014). Clearing the Haze Surrounding State Medical Marijuana Laws: A Preemption Analysis and Proposed Solutions. Hous. J. Health L. & Pol’y14, 299-299.

Related articles

#15: Wrongly Fired

The 11th Amendment states that:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Before its ratification, the Court held in Chisholm v. Georgia (1793) that states could be sued in federal court. The Eleventh Amendment was ratified in response to that decision. After its ratification, the Court held in Hollingsworth v. Virginia (1798) that state sovereign immunity had been established by the 11th Amendment.

Subject to some exceptions, then, state government actors have sovereign immunity from lawsuits. But the actual text of the 11th Amendment does not say that sovereign immunity extends to cases where states are sued by their own citizens. The Court extended sovereign immunity to cover this sort of situation in Hans v. Louisiana (1890). However, the Court seems to have backtracked on this, at least a bit. Read the excerpt of Nevada Department of Human Resouces v. Hibbs (2003) on WebCampus. Notice how the Court is allowing this abrogation of the 11th Amendment’s sovereign immunity requirement based on the fact that Congress was acting under section 5 of the 14th Amendment.

But it is still clear that states are afforded considerable protection from lawsuits in federal court, even lawsuits filed by their own citizens. Read this WSJ article about the “Facebook Likes” case, Bland v. Roberts (2013). Note that, while the 4th Circuit seems to have sided with the fired employees, these employees are unlikely to be entitled to back pay if they win at trial. Also relevant, though, is the Supreme Court’s sovereign immunity decision in Virginia Office for Protection and Advocacy v. Stewart (2014). Click through some of the links at the SCOTUSblog VOPA v. Stewart page, especially this analysis by Schwinn.

Paper Topic #15: How is the issue of sovereign immunity different in this case than it is in Hibbs and/or VOPA? What would have to happen in order for the workers in Bland to collect damages? Is this kind of sovereign immunity still relevant in today’s America?

Suggested Reading: Gates, H. M. (2012). Closing The Gap: The Fourth Circuit’s Narrowing Of The Ex Parte Young Exception In Virginia V. Reinhard And The Implications For Federal Rights. Seton Hall Circuit Review6(2), 1.

#14: Federalism and Same-Sex Marriage

Equality Bacon

Read for 10/21/2015

You might remember a while back when many of your facebook friends changed their profile pictures to red equals signs. This was the round before everyone rainbowized their profile pics. This was about the time that the Court was preparing to hand down its decision in U.S. v. Windsor (2013). Read the excerpt I’ve posted in the content section on WebCampus. How is it that what seems like a 14th Amendment equality issue could morph into a federalism question? Read this insightful SCOTUSblog post that helps to show how the question came to be framed in these terms.

Of course, it has also become very trendy for conservative politicians to abandon the position that “marriage should legally be between one man and one woman” and move to a position that calls for each state to make that determination for itself. One recent example of this is Rep. Joe Heck, who recently made an interesting argument on KNPR’s “State of Nevada.” First, he averred that he still believes (“personally”) that marriage is between a man and a woman. He went on to say that there should be no federal role in defining marriage as anything other than that, although he thought the states should be able to decide for themselves. Interestingly, he also thought that the process currently taking place in the federal courts, whereby these institutions are now regularly striking down state-level bans on same sex marriage, were an appropriate part of the process of determining the legality of same sex marriage. As we all know, of course, the federal courts are part of the federal government. Heck did not elaborate on what he thought of the role of the federal courts in using the federal constitution to invalidate state same sex marriage bans.

For the Alabama Supreme Court, however, this debate is far from over. A federal judge overturned Alabama‘s 2006 ban on same sex marriage. Even though the US Supreme Court refused to issue a stay of the same sex marriages in anticipation of the Supreme Court ruling on the case, the Alabama Supreme Court has taken the matter into its own hands. This Washington Post article gives some of the early details. The Alabama Supreme Court issued a bewildering per curiam opinion, which can be found here. In it, they seem to suggest a number of contradictory reasons for refusing to abide by the federal court’s order. Among these reasons is simply that the Supreme Court’s decision in Windsor was wrong, so the Alabama Supreme Court is not bound by it.

In the wake of Obergefell v. Hodges (2015), you’d think that Alabama would have fallen in line. But you’d be wrong. Indeed, a request to disregard Obergefell is currently pending in front of the Alabama Supreme Court. Read this for an update. In any event, the Obergefell decision has essentially settled the primary question of marriage equality (setting aside the major issue of First Amendment rights). However, the implications of Windsor’s lesser-known companion case Hollingsworth v. Perry (2013) might be construed as having more important implications for federalism than Obergefell did.

Paper Topic #14: Outside of the same sex marriage context, what impact does Hollingsworth v. Perry (2013) have on state sovereignty  and federalism aside from those related to marriage equality?

Suggested Reading: Young, E.A. and Blondel, E.C. 2012. “Federalism, Liberty, and Equality in United States v. Windsor.” Cato Supreme Court Review 2012-2013:117-147.

Palmer, S. 2015. No Legs to Stand On: Article III Injury and Official Proponents of State Voter Initiatives. UCLA L. Rev.62, 1055.

#0: Welcome to PSC 330

D69898_11Congratulations! You’ve found your way to the PSC 330 blog. Here, I’ll be posting short articles that help to link the content of the course to what’s going on in the world. I’ll let you know on Twitter when a new post is up by tweeting with the hashtag #PSC330. This feed will also include links to additional news items or opinion pieces that are relevant to our course. If you’re not on Twitter, you can check the WebCampus Twitter widget or look on my website: rebeccagill.net. Just click on the “330” link on the menu bar.

Many of these blog posts will pose a question about the the breadth, limits, and interaction of government powers. You will choose from among these questions the topic for each of your three short papers in the course. Really, though, you’ll probably need to narrow the question a bit and form it into an appropriate argument that you can defend in your short papers. There’s much more information about this on our WebCampus page in the “Short Papers” folder.

The material on the blog is required, just as is the material in the book. You need to read the appropriate book section and the blog before you come to class. Each blog post will include the date by which I expect you to read it. I will be posting the blogs several class periods ahead so that you have the information you need to get started on your papers. I’ll post these a bit in advance, but not too far ahead; I want to make sure I have the chance to update these with any new cases or content that is relevant to the discussion.

The blog content will feature prominently in most of our classroom discussions, and it is fair game for both the in-class clicker questions and the exams. Remember, if I preface a link by saying “read this,” then the material on the linked page is required, too. Enjoy! 

-RG