The Gun-Free School Zones Act Is Doubly Dubious
The federal law relies on a risible reading of the Commerce Clause to restrict a constitutional right.
Federalism
The Trump Administration's Fake Housing Emergency
The results of America's overly burdensome housing regulations aren't great. But they're not an "emergency."
When It Comes to Fighting Crime With the National Guard, Trump Says, He Can Do 'Anything I Want To Do'
The president's plan to promote public safety by deploying troops in cities across the country is hard to reconcile with constitutional constraints on federal authority.
My New The Hill Article: "Abolish ICE and Give the Money to Real Cops"
It makes the case for abolishing ICE and transferring its funds to state and local police.
D.C. Is Just the Beginning—the Trump Administration Is Preparing To Deploy Troops to More U.S. Cities.
The president signed an executive order on Monday establishing specialized units within the National Guard to support federal law enforcement in American cities.
Trump's Unconstitutional Plan to Penalize States that Allow Cashless Bail
His executive order directs the Justice Department to deny federal funds to jurisdictions that use cashless bail for suspects for many types of crimes. The plan is another assault on federalism and separation of powers.
Trump Directs DOJ To Penalize States and Cities That Use Cashless Bail
As part of his response to the alleged crime emergencies taking place nationwide, Trump signed an executive order restricting federal funding from jurisdictions with cashless bail policies.
Pentagon Draws Up Plans To Send Troops to American Cities
The Trump administration is considering plans for a "Reaction Force" of National Guard troops to deploy quickly to American cities with signs of civil unrest.
The FBI Has No Business Tracking Down Texas Democrats
Using the FBI to track down AWOL Texas Democrats is an unnecessary expansion of federal law enforcement authority.
On Sanctuary Cities, It's Trump vs. the 10th Amendment
The anticommandeering doctrine stands in the way of Trump’s immigration crackdown.
New York's Governor Blames Nevada's 'Weak Gun Laws' for the Manhattan Mass Shooting
Kathy Hochul's focus on "assault weapons" is puzzling, since the perpetrator easily could have killed the same number of people with a gun that did not fall into that politically defined category.
One Big Beautiful Housing Supply Bill
Congress considers a consensus housing supply bill while the White House cracks down on the homeless.
History Isn't on the DOJ's Side in Its Case Against NYC's Sanctuary Policies
The Trump administration's lawsuit against New York City challenges decades of sanctuary policies and local independence.
Federal Court Rejects Trump Lawsuit Challenging Illinois Sanctuary Policies
The court ruled the state and local policies are protected by the Tenth Amendment.
Fourth Circuit Rejects Claim that West Virginia Abortion Law Is Preempted
A mifepristone manufacturer is unsuccessful in evading West Virginia's prohibition on abortion, even when performed by medication.
Life as an Academic Defender of the Intuitively Obvious
Academics are supposed to discover nonobvious, counterintituitive truths. But, especially in recent years, much of my work involves defending positions that seem obvious to most laypeople, even though many experts deny them.
Gun Rights Groups Welcome the Demise of Illogical and Constitutionally Dubious Federal Firearm Taxes
The taxes on sound suppressors, short-barreled rifles, and short-barreled shotguns, originally enacted in 1934, were meant to be prohibitive, imposing bans in the guise of raising revenue.
The Tax Bill Rewards States for Higher Rates of Food Stamp Fraud
Telling states to pay for a share of the food stamp program makes a lot of sense and would likely reduce fraud.
Senate Votes 99–1 To Remove AI Moratorium from 'Big, Beautiful Bill'
Now nearly 100 state AI laws will remain in force—and nearly 1,000 more are already waiting in the wings.
Using the National Guard in DEA Raids Is the Worst Kind of Drug War Mission Creep
The deployment of National Guard soldiers on a DEA drug raid is a serious test of whether the Posse Comitatus Act means something or not.
The Senate Is One Step Closer To Passing a 10-Year Moratorium on State AI Regulation
The Senate parliamentarian says the 10-year AI moratorium may be passed by a simple majority through the Senate's budget reconciliation process.
The 9th Circuit Rejects Trump's Audacious Claim That He Can Use the National Guard However He Likes
Although the appeals court said the president probably complied with the law he invoked to justify his California deployment, it emphasized that such decisions are subject to judicial review.
Federal Court Rules Against Trump Plan to Condition Federal Transportation Grants to States on Cooperation with Federal Deportation Efforts
The ruling is the latest in long line of court decisions striking down executive efforts to attach conditions to federal grants that were not approved by Congress.
Trump Argues That He Can Take Over a State's National Guard Whenever He Feels Like It
The government's lawyer told a 9th Circuit panel the president's deployments are "unreviewable," so he need not even pretend to comply with the statute on which he is relying.
Whether or Not Trump Invokes It, the Insurrection Act Is Antiquated and Dangerously Broad
On its face, the law gives the president sweeping authority to deploy the military in response to domestic disorder.
Did Justice Barrett Flip in PennEast Pipeline?
An interesting tidbit from today's NYT profile of Justice Amy Coney Barrett
The Restraining Order Against Federalizing the California National Guard Highlights Trump's Lawlessness
U.S. District Judge Charles Breyer concluded that the president failed to comply with the statute he cited—and violated the 10th Amendment too.
Gavin Newsom Defends Federalism Against Trump's Unilateral National Guard Deployment
In a federal lawsuit, California's governor argues that the president's assertion of control over "the State's militia" is illegal and unconstitutional.
The Tom Cotton Do-Over
Trump and the right are living out their fantasies of rewriting the awful summer of 2020.
First Circuit Rejects Constitutional Challenge to Federal Marijuana Prohibition
Like it or not, Gonzales v. Raich remains good law, and federal prohibition is constitutional under current doctrine.
Mitchell Berman on Conditional Federal Grants and the Constitution
While there is no constitutional right to receive grants, the Constitution does bar grant conditions that undermine constitutional rights.
Gary Winslett: The American Dream Has Migrated South
Middlebury professor Gary Winslett argues the South—not China—poached the Rust Belt’s manufacturing base by out-competing it on policy.
Federal Court Blocks Trump Executive Order Denying Federal Funds to Sanctuary Cities
The decision is based on precedents in similar cases during Trump's first term.
My New Brennan Center Article on "Sanctuary Policies in a Federal System"
The article covers state sanctuary policies, their constitutional basis, how they can constrain Trump's mass deportation efforts, and how Trump can try to get around them.
States Keep Suing the Feds, but Not in Defense of Federalism
State Attorneys General appear more interested in lining up with their political tribe than they are in defending state interests.
Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits
Justice Thomas dissents from the Court's continued unwillingness to hear bills of complaint filed under the Court's original jurisdiction.
Medical Marijuana Legalization Takes Effect in Nebraska After Lawsuit Dismissal
Voters overwhelmingly favored the new policy, which a former state legislator unsuccessfully tried to block.
California Gov. Newsom Speaks Loudly, Carries Small Stick
Newsom is a prototypical modern progressive governor whose pro-democracy tour of Southern states evoked more mocking than fear.
How Donald Trump and Elon Musk Could Cut $2 Trillion in Government Spending
If Musk is truly serious about fiscal discipline, he'll advise the president-elect to eschew many of the policies he promised on the campaign trail.
Kamala Harris Promotes Federal Pot Legalization As a Boon to Black Men
Although the framing is a transparent political ploy, it is reassuring to see that the vice president has not abandoned her opposition to the federal ban.
Waiving the Filibuster to Pass a National Abortion Bill Is a Bad Idea
Democrats will live to regret doing this if they have the votes to do it.
California Gov. Gavin Newsom Vetoes Car Speed Alarm Bill
He returned S.B. 961 to the California Senate for all the wrong reasons.
Trump Endorses Federal Marijuana Reforms and Reiterates His Support for Legalizing Pot in Florida
His new stance could encourage Vice President Kamala Harris to emphasize her opposition to federal marijuana prohibition.
Bowing to Public Opinion, Trump and Harris Both Agree That Marijuana Should Be Legal
It remains unclear whether either would do anything about that as president.
Eighth Circuit Wrongly Struck Down Missouri's Gun Sanctuary Law - But Also Created a Roadmap for How Such Laws Can Escape Invalidation in the Future
The court indicates the law would be constitutional so long as it does not claim to declare a federal law "invalid."
Eighth Circuit Rejects Missouri's Second Amendment Preservation Act
States cannot invalidate or refuse to recognize federal law.
