Convictions : federalism

Abortion and Same-Sex Marriage As None of the Government's Business

Doug Kmiec — Mon, 19 May 2008 17:03:00 GMT

Contemplating abortion and same-sex marriage as beyond all governmental power to either approve or disapprove. Might government silence over topics where the culture is deeply divided be part of Senator Obama's national reconciliation effort? ...(read more)

A Guest Post by Robert Weisberg on the Relationship Between "Actvism" and "Federalism"

Dahlia Lithwick — Mon, 19 May 2008 15:22:00 GMT

Robert Weisberg, of Stanford Law School, offers a guest post:

Dahlia Lithwick’s latest column about the California marriage decision shows how the availability of the "activism” trope is more than the intelligence (or other virtues like rationality, sanity, or honesty) of those decrying it can bear. I would add a twist: the conflation of concerns about separation of powers and federalism. On the Bill O’Reilly show the night of the decision, Fox New jurisprude Megyn Kelly first offered a fairly generic denunciation of the decision as matter of constitutional jurisprudence. Then, when asked (by O’Reilly!) whether the decision at least merited respect under the principle of states’ rights (O’Reilly also noted that the state court was mostly Republican appointees), Kelly got agitated and fumed that states’ rights are not about the rights of state judges but the rights of the people. Whatever the mens rea of Ms. Kelly’s rant (see challenged virtues, above), it wonderfully illustrates the power and plasticity of the activism trope. And the focus on California is especially ironic. Here in the Golden State we have a ruling that may last just a few months, given the voters’ penchant for—indeed their addiction to—direct democracy.

We do have an elected legislature here, but California voters love to do the legislative work themselves (both the restoration of the death penalty in the 1970s and the three-strikes law in the 1990s were passed the old-fashioned way in Sacramento but then got enhanced via initiative within one year), and the 50 percent rule applies to initiatives that change the Constitution as well. It is a state where the people seem quite willing to kick Supreme Court justices out of office (see Bird, Reynoso, Grodin over the death penalty in 1986) and, of course, find it easy to kick out a governor for no particular reason except dislike and mild buyers’ remorse. So in the separation-of-powers arena, the fourth branch of self-declared people’s sentiment seems quite able to take care of itself.

Of course, we could also put the problem with this reading of states’ rights in more abstract terms, noting, for example, that the presence of both the Ninth and 10th Amendments in the federal Bill of Rights suggests that in 1791 there was a big difference seen between the autonomy of states and at least one, admittedly vague, version of a residual power of the people. The venerable provenance of federalism in the 18th century is a strange bedfellow to a concern over the phenomenon of judicial review—which was hardly on the minds of the Framers, especially at the state level.

In any event, imagine that the D.C. gun ban had been enacted in a state; the U.S. Supreme Court had upheld it on broad collective rights grounds (contra the likely outcome in Heller), and the state Supreme Court had then struck it down as a violation of the state’s right-to-bear-arms clause: Would the chance of that decision being denounced as activist by pro-gun groups have exceeded zero, or the chance of those groups forbearing from proclaiming it as a vindication of states’ rights less than 100 percent?

A Federal Case?

Phillip Carter — Fri, 18 Apr 2008 19:53:00 GMT

I think Judge Gertner's right -- there are some things which flatly shouldn't be a federal case.

I'm reminded here of the so-called "felon in possession" cases I saw while working as an extern in the U.S. Attorney's Office in Los Angeles. Under federal criminal law, it's a crime for a previously-convicted felon to possess a gun which has moved in interstate commerce (i.e. any gun). The cases I watched came as part of a massive Justice Department initiative called "Project Safe Neighborhoods" which aimed to reduce gun-related crime in America through various means, including the federal prosecution of persons arrested with a gun who had a prior felony conviction. Many were initially arrested by local law enforcement; some were even tried first in state corut. However, they eventually made it into federal court because the feds wanted to take advantage of stiffer federal sentencing laws, more prosecutorial resources at the federal level, and the comparitive advantage of the federal court jury pool versus that in Los Angeles County.

The strategy has worked. PSN has locked up a lot of gun-carrying felons for a very long time. In general, I applaud that outcome, because I want streets that are free of gun violence too. But, I agree with Judge Gertner that we should be concerned about the larger implications here, especially the stark differences between the federal and state criminal systems which create the incentive to make a federal case out of everything.

Prosecutorial Discretion: Transparency and Federalism

Nancy Gertner — Fri, 18 Apr 2008 18:07:00 GMT

On April 18, the L.A. Times reported the United States Attorney was facing criticism from line prosecutors who said that they were being pressured to file "relatively insignificant criminal cases" for the purpose of driving up statistics that would lead to increased federal funding. The United States Attorney denied the accusation.

Whatever the facts, the question of how prosecutors exercise their considerable discretion to bring federal charges is critical. With mandatary minimum sentencing, prosecutorial decisions effectively determine the outcome. Federal substantive criminal law is chaotic -- with overlapping offense categories that can apply to the same charged conduct, some with mandatory minimums and some without. And those decisions, unlike the decisions of judges that are regularly reviewed and criticized, are not transparent; they are the classic low visibility decisions, accountable for the most part only to the hierarchy within the local office and no further. Given that power, and lack of transparency, every effort must be made to keep the process from becoming politicized either to beef up statistics -- the allegation here -- or to go after political enemies --as was claimed in connection with the U.S. attorney firings.

Justice Scalia said it best dissenting in Morrison v. Olson, the case in which the Supreme Court upheld the independent counsel statute, the statute that later allowed Ken Starr to investigate President Clinton. "Law enforcement", he noted, "is not blind." No one can investigate everything, so the prosecutor has to pick his cases. And if he can choose his cases, he can choose his defendants, the "most dangerous power" of all. The risk is that the prosecutor will go after the people he thinks he should get, not the cases that need to be prosecuted. The "who" before the "what"."

But another, perhaps even more important issue, is whether federal court is the appropriate place for the "relatively insignificant criminal" cases. There is certainly an important role for federal law enforcement. But, this effort must be done carefully. If not, it will only deepen the perceived inequities in the criminal justice system, inequities that lead one person to get a long federal sentence, while another is prosecuted in state court facing a lesser penalty for the same conduct, while one person faces a federal jury which may well be far less diverse than the state juries, etc. Moreover, too much reliance on federal prosecutions can undermine over the long haul the critical role of local law enforcement, which has the best intelligence and the closest ties to the community. And federal resources, as a colleague on my court has noted, are often best saved for more complex cases.

So whatever the facts in this case -- and we only know the accusations -- federal prosecution decisions are simply too important to the public, to the defendants, to be subject to in appropriate, external pressures.