My State and Local Government Law Blog Post on "How Federalism Can Empower People to Vote with Their Feet"
The post focuses attention on an aspect of federalism that is often overlooked in current law and policy debates.
Federalism
Can a Federal Judge Stop State Courts From Hearing the Lawsuits Authorized by the Texas Abortion Ban?
In a prior case challenging the law, the 5th Circuit said state judges were not appropriate defendants.
The (Likely) End of the SALT Tax Deduction Litigation
Four blue states' misguided legal challenge to the cap on the SALT tax deduction suffered a well-deserved defeat in the Second Circuit. The case is likely over.
Second Circuit Rejects Blue States' Challenge to Cap on SALT Deduction
A unanimous panel makes quick work of meritless legal claims.
PennEast Abandons Plans to Use Eminent Domain to Seize State-Owned Land in Case that Resulted in a Major Supreme Court Decision
The case was the subject of a Supreme Court ruling in which the power of eminent domain prevailed over state sovereign immunity.
My National Affairs Article on "Voting With Our Feet"
The article explains how expanding opportunities for foot voting can enhance political choice, help the poor and disadvantaged, and reduce the dangers of political polarization.
Biden Keeps Pushing Dubious Arguments for CDC Supremacy
The president seems determined to anoint the agency’s director as the nation’s COVID-19 dictator, no matter what the law says.
The Biden Administration Seems To Think Every Public School Is Legally Obligated To Require That Students Wear Face Masks
The secretary of education argues that federal law makes the CDC's COVID-19 guidelines for schools mandatory.
Senate Democrats Embrace Marijuana Federalism. Will Republicans?
Senate Democratic Leader Charles Schumer is embracing a sensible approach to marijuana reform.
Chuck Schumer Says He Wants To Legalize Marijuana. His Bill Suggests Otherwise.
The Senate majority leader's racial rhetoric and overly prescriptive approach make an already iffy effort even more quixotic.
Why Didn't COVID-19 Kill the Constitution?
We can thank judges who were prepared to enforce constitutional limits on public health powers.
Federal Court Strikes Down Tax Mandate Requirement in Biden Stimulus Spending Bill
The mandate prevents bars states receiving federal funds under the Act from enacting tax cuts that are "directly or indirectly" offset by the grants.
Federal Court Enjoins Enforcement of "Tax Mandate" Barring States Receiving COVID-19 Funds from Cutting Taxes (Updated)
In a careful ruling, Judge Cole concludes Ohio made its case, and enjoins enforcement of the mandate against Ohio.
At Least 5 Justices Seem To Think the CDC's Eviction Moratorium Is Illegal. SCOTUS Left It in Place Anyway.
Brett Kavanaugh, who provided a crucial fifth vote, said he agrees that the CDC does not have the authority to override rental contracts.
Did Congress Give the CDC More Authority Than the President?
The agency’s legal defense of its eviction moratorium implies that it has vast powers to order Americans around.
Although 44% of Americans Live in States That Have Legalized Pot, Federal Prohibition Is Not Likely to End Anytime Soon
The president supports the ban, and his fellow Democrats do not seem serious about attracting Republican support for repealing it.
Unanimous Supreme Court Ruling Bolsters Right to File Federal Takings Cases Against State and Local Governments
The Court clarified that the challenged policy need only be a "de facto final" decision, and that property owners are not required to exhaust all possible state bureaucratic procedures before filing a federal takings case. The Court also emphasized that Takings Clause property rights have "full-fledged constitutional status."
Supreme Court Refuses to Hear New Hampshire v. Massachusetts—An Important Case Challenging Massachusetts' Taxation of NH Residents Working Remotely for MA Firms
But the issue of state taxation of remote workers is likely to recur.
Justice Thomas Decries "Contradictory and Unstable State" of Marijuana
In an opinion respecting the denial of certiorari, Justice Thomas suggests it may be time to reconsider Gonzales v. Raich
The Feds Can't Compel States to Enforce Restrictions on Guns or Immigrants
The anti-commandeering principle serves causes favored by both the right and the left.
As More States Legalize Marijuana, the Need for Marijuana Federalism Grows
If states are to have different marijuana laws and policies, federal reform is necessary.
My New Article on "The Normality of Knick"
It responds to a critique of the Supreme Court's major property rights ruling in Knick v. Township of Scott, by Profs. Stewart Sterk and Michael Pollack.
Missouri Now Refuses to Enforce Certain Federal Gun Laws
Biden's Justice Department has some problems with this.
More Sanctuary States of the Right
Conservative states seeking to protect gun rights are copying the tactics used by liberal immigration sanctuaries.
The 9th Circuit Considers Whether the DEA's Classification of Marijuana Violates Federalism and the Separation of Powers
The puzzle of marijuana's Schedule I status invites a reconsideration of the agency's vast discretion to decide which substances should be prohibited.
Do Democrats Realize They Need Republican Support To Legalize Marijuana?
The MORE Act, which was reintroduced today, is full of contentious provisions that go far beyond repealing federal prohibition.
Video of Federalist Society Executive Branch Review Panel on "State Sovereignty or Fair-Weather Federalism?"
Participants include Prof. Edward Rubin (Vanderbilt), Prof. Carolyn Shapiro (Chicago-Kent), Ilya Shapiro (Cato Institute), and myself.
New Developments in Ohio's Challenge to the Stimulus Bill Provision Restricting Tax Cuts by States Receiving Federal Grants under the Act
A federal court issues a ruling against the requirement that states receiving stimulus funds are not allowed to raise taxes. Meanwhile, the Treasury Department issues an "interim final rule" intended to limit the scope of the mandate - and protect it against legal challenge.
Upcoming Federalist Society Executive Branch Review Conference
The online event features panels on a wide range of issues related to executive power, including one on federalism where I will be one of the participants.
If You Want To Fix the Country, Devolve Power
Revived federalism is a start, but it doesn’t go far enough.
How Texas Became a Magnet for Foot Voters
As a recent Washington Post article explains, the combination of low taxes, job opportunities, and few restrictions on building new housing are crucial to the state's success. Both major parties have much to learn from Texas' experience.
This 87-Year-Old Republican's Bill Would Restore the Second Amendment Rights of Cannabis Consumers in States That Have Legalized Marijuana
Under current law, marijuana users who possess firearms are committing a felony punishable by up to 10 years in prison.
A Sanctuary State of the Right
Montana's new law refusing to help enforce federal gun restrictions is similar to liberal "sanctuary cities'" refusal to assist in federal immigration enforcement. Both are protected by Constitution.
More Than A Dozen States Are Trying To Nullify Federal Gun Control
Conservative state legislators are taking a page from the playbook of pro-immigration activists and the marijuana legalization movement.
The Right to an Abortion Isn't Going Away
While overturning Roe v. Wade would lead to new restrictions in many states, legal access to abortion would be unaffected in most of the country.
New Mexico Joins New York and 15 Other States in Legalizing Marijuana
Joe Biden, meanwhile, supports continued national prohibition, maintaining an untenable conflict between state and federal laws.
Biden Stimulus Bill Provision Targeting State Tax Cuts Might be Struck Down by Courts for Same Reasons as Trump Efforts to Pull Federal Grants From Sanctuary Cities
In both situations, the grant conditions in question were not clearly and unambiguously authorized by Congress.
Federal District Court Rules Against CDC Eviction Moratorium
There are now two district court decisions ruling against the moratorium and two upholding it.
COVID-19 Edicts Highlight the Importance of Structural Limits on Government Power
The national eviction moratorium and Arizona’s business restrictions were based on dubious assertions of authority.
The State of the Legal Struggle Over the CDC Eviction Moratorium
Two district court decisions have upheld the moratorium against various challenges, while one has ruled against it. The legal battle may be just beginning.
New article—Constitutionalizing Interstate Relations: The Temptation of the Dark Side
On the inconsistency between choice of law cases and interstate sovereign immunity cases
Update on New Hampshire v. Massachusetts
The Supreme Court did not resolve the case today, but did take the noteworthy step of asking for the views of the federal government.
New Hampshire's Supreme Court Lawsuit Seeking to Prevent Massachusetts from Taxing NH Residents Working Remotely for Massachusetts Firms
The case was filed directly in the Supreme Court under its "original jurisdiction" over cases filed by one state against another. It could have important implications for the future of federalism.
My New Article on "Freedom Through Foot Voting"
The article adapts and expands some of the ideas developed in my recent book "Free to Move," and is now available for free download on SSRN.
Will Democrats Embrace the Imperial Presidency Now That Their Guy Is in Charge?
Partisans who abandon constitutional principles because they prove inconvenient are in for a rude surprise when the other team wins.
Biden's Mask Mandate Retreat Is a Hopeful Sign
The president acknowledges that there are limits to executive power, even during a public health emergency.
To Avoid More Political Violence, Allow Americans To Escape Each Other's Control
Let people join with the like-minded to reject officials and laws that don’t suit them and to construct systems that do.
Would a National Lockdown Have Saved the U.S. From COVID-19?
A comparison of Texas and California suggests that legal edicts matter less than The New York Times thinks.