Appellate Court Upholds Constitutionality of Federal Hate Crimes Act Conviction Based on the Commerce Clause
The decision is a complicated ruling that potentially sets a dangerous precedent for the scope of federal power under the Constitution.
Federalism
Foot-Voting Nation
The seventh post in the Volokh Conspiracy symposium on "Our American Story: The Search for a Shared National Narrative" (ed. by Joshua Claybourn).
California Was Ready to Punish This Synagogue Shooter for Murder. The Feds Want to Make Sure He Is Also Punished for Hating Jews.
The federal hate crime charges against John T. Earnest are redundant and constitutionally problematic.
Foot-Voting Nation
My new book chapter is now available for free on SSRN. It desccribes how "voting with your feet" played a central role in American history, how foot voting is at the heart of much of the nation's success, and the recent rise of dangerous new obstacles to foot-voting. Part of a new book, "Our American Story: The Search for a National Narrative."
Federal Appellate Court Rules Against Trump Administration on Most Issues in California "Sanctuary State" Case
The ruling, written by a Republican-appointed judge, is an important victory for federalism.
Justice Department Decides Not to Appeal Court Ruling Striking Down Federal Law Banning Female Genital Mutilation
The decision is likely to be unpopular. But it is the right thing to do nonetheless, as the law is unconstitutional. Not every evil must be addressed by a federal law.
It Might Be the 'Heart of the Resistance,' but California Is Not Its Own Nation-state
But that might be news to some Californians, and even more of the state's elected and appointed officials.
'Making Federalism Great Again'—My Forthcoming Texas Law Review Article on the Litigation Generated by Trump's Assault on Sanctuary Cities
My newly posted article explains how the administration's efforts have had the unintended effect of strengthening judicial protection for state autonomy.
Mike Lee: 'Every Conceivable Partisan Combination' Has 'Deviated From' Federalism
"This isn't a partisan issue," the Utah senator says. "This is a constitutional issue."
Will One of Arizona's More Vocal Drug Warriors Get a Seat on the State's Supreme Court?
Years after the state legalized medical marijuana, Maricopa County's top attorney served as a barrier.
Audio of Recent Federalist Society Teleforum on Sanctuary Cities
The event features Ilya Shapiro of the Cato Institute, and myself.
The Next Attorney General Says He Won't Go After State-Licensed Marijuana Suppliers
William Barr does not like legalization but says Congress has to resolve the "untenable" conflict between state and federal law.
The DOJ Shouldn't Reignite the Fight Against Intrastate Gambling
Respect federalism and leave the states alone.
Foot Voting and the Future of Liberty
My book chapter on this subject from the "Cambridge Handbook of Classical Liberal Thought" is now available on SSRN.
Thoughts on Today's Federal Court Decision Against Obamacare
The judge was right to conclude that the individual health insurance mandate is now unconstitutional, but wrong to rule that the rest of the ACA is now unlawful because it can't be severed from the largely toothless mandate left in place under the 2017 GOP tax bill.
James Fields Killed Heather Heyer Because of Her Opinions, and Now the Government Is Trying to Do the Same to Him
The federal case against the Charlottesville murderer illustrates how hate crime laws punish people for their bigoted beliefs.
Federal Court Rules Against Trump in Sanctuary Cities Case Brought by Seven States and New York City
The ruling is the latest in a long line of setbacks for the administration's efforts to punish sanctuary jurisdictions by withholding federal law enforcement grants.
Legalizing Marijuana and Gay Marriage Seemed Impossible
But losing taught libertarians how to win
Why the Federal Law Banning Female Genital Mutilation is Unconstitutional
FGM is a horrible crime. But banning it is one of many issues the Constitution leaves to the states, much like banning rape and murder. Yesterday's court decision striking down the law was correct.
Federal Female Genital Mutilation Ban Exceeds Congress's Power, Holds District Court
Policing such behavior, the court concludes, is a matter for the states, because it isn't authorized as a regulation of commerce or as necessary and proper to comply with treaties.
Three Steps Forward for Marijuana Legalization
Democratic control of the House, the passage of marijuana legalization referenda in three states, and the removal of Jeff Sessions presage a brighter future for legalized pot.
The DOJ Should Not Prosecute Robert Bowers
The federal case against the Pittsburgh shooter is redundant and constitutionally questionable.
Why Mandatory National Service is Both Unjust and Unconstitutional
A post based on my presentation at a panel on mandatory national service organized by the National Commission on Military, National, and Public Service.
Yet Another Federal Court Rules Against Trump and Jeff Sessions in a Sanctuary Cities Case
The decision is the latest in a long line of legal setbacks for the administration's efforts to force sanctuary cities to help deport undocumented immigrants.
Cato Unbound Symposium on the Constitutional Scope of Federal Power Over Immigration Continues
Responses to my lead essay by legal scholars John Eastman and Gabriel Chin have now been posted, along with my rejoinders to them.
Jeffrey Rosen on "Madison's Nightmare"
Legal scholar and National Constitution Center President Jeffrey Rosen explains how many of the Constitution's safeguards against "mob rule" have frayed. His description of the problem is compelling, though he is less strong on possible solutions.
Cato Unbound Symposium on Federal Power Over Immigration
The lead essay on this month's Cato Unbound is my article outlining why the text and original meaning of the Constitution do not give the the federal government any general power to restrict immigration. There will be responses by critics, and ongoing discussion until October.
Anti-Pot Staffers Conspire to Turn Trump Against Marijuana Federalism
A White House policy committee is collecting information on "negative trends" and "threats" associated with legalization.
Will EPA Trump California's Clean Air Act Waiver?
The Trump Administration is seeking to roll back federal automotive fuel economy standards and prevent California from maintaining more stringent standards of its own.
Cory Booker Proposes Bill to Curb Exclusionary Zoning
He deserves credit for being one of the very few national politicians to focus on this enormous problem. If enacted, his proposal would be a step in the right direction, though it is likely to have only a modest impact.
Trump and Jeff Sessions Suffer Yet Another Defeat in Chicago Sanctuary City Case
The ruling is notable in underscoring how the Supreme Court's sports-betting decision in Murphy v. NCAA helps sanctuary cities.
Beware Decentralization Without Mobility
Economist Bryan Caplan reminds us that political decentralization has little value unless it is accompanied by mobility.
National Ban on Smoking in Public Housing Is Unconstitutional, Lawsuit Says
Tenants are challenging a HUD rule that requires local public housing authorities across the country to prohibit people from smoking in their homes.
Abortion, Clarence Thomas, and the Commerce Clause
Cornell law professor Michael Dorf asks whether Clarence Thomas would vote to strike down federal laws restricting abortion, on federalism grounds. The answer might well be yes. But the issue would have to be presented to him in the right way.
Four Blue States File Dubious Lawsuit Against Cap on Federal Tax Deduction for State Tax Payments [updated with brief response to Michael Ramsey]
The lawsuit contends that the Constitution requires a federal tax deduction for "all or a significant portion" of state income tax payments.It relies on badly flawed constitutional arguments to try to prop up a badly flawed policy.
California Supreme Court Removes Question on Splitting Up State from November Ballot
The initiative could be reinstated for the 2020 election, however, if the Court concludes that its inclusion does not violate California law.
Four Blue States Scream 'Federalism' and Sue to Stop Changes in Federal Tax Deductions
New York gets salty over new limits because now the rich will know they're being soaked.
Federal Court Rules Against Trump Administration on Most Issues in California "Sanctuary State" Case
The ruling is just the start of what may be a prolonged legal battle over immigration and federalism.
Supreme Court Rules States Can Demand Outside Online Retailers Collect Sales Taxes
A blow against federalism, tax competition, and small businesses trying to expand.
How Anti-Trump Republicans Can Change the President's Behavior
Cory Gardner used confirmation holds to force a potential breakthrough on marijuana federalism. There's a lesson there.
Why the Individual Mandate Part of the New Obamacare Case Matters
Most of the attention on the twenty state lawsuit against Obamacare understandably focuses on the "severability" issue, which could lead to the demise of the entire Affordable Care Act. But the individual mandate part could also set an important precedent.
Should California be Broken Up?
A plan to divide California into three states will be on the state's referendum ballot in November. If it passes and is approved by Congress, it could potentially be a significant change for the better.
Cory Gardner and Elizabeth Warren Introduce Bill Largely Abolishing Federal Ban on Marijuana in States that have Legalized it Under their Own Laws
If it passes, this will be a major victory for both marijuana legalization and federalism.
Trump Suffers Another Defeat in Philadelphia Sanctuary City Case
The ruling is the latest in long line of defeats for the administration's efforts to cut federal grants to sanctuary jurisdictions. It breaks new ground by showing how the recent Supreme Court ruling in Murphy v. NCAA helps sanctuary cities.
Congress Stands With the Blue, Against the Constitution
The lopsided House vote for treating assaults on cops as federal crimes is a bipartisan portrait in cowardice.
Interview with Judge Jeffrey Sutton About his New Book "51 Imperfect Solutions: States and the Making of American Constitutional Law"—Part II
Part II of my interview with Judge Jeffrey Sutton about his new book state constitutional law.
Interview with Judge Jeffrey Sutton About his New Book "51 Imperfect Solutions: States and the Making of American Constitutional Law"—Part I
The first part of my interview with Judge Sutton about his important new book on state constitutions.