Life After Erie:
What happens on the day after Erie is overturned?
Federalism
Written Version of My Talk on "How Federalism Promotes Unity Through Diversity"
This speech, which I gave at a Federalist Society conference, is now available in a written version on SSRN. It will be published by the Harvard Journal of Law and Public Policy.
Trump's Abortion Triangulation Makes Political Sense but Belies His 'Pro-Life' Pose
The former president is right to worry that supporting restrictions on abortion could hurt him in the general election.
Interstate Travel to Get Abortions has Prevented the Dobbs Decision from Significantly Reducing the Number of Abortions in the US
Some estimates suggest the number of abortions has even increased.
A Conservative Constitutional Argument Against a National Abortion Ban
Conservative legal scholar William Hodes argues that federal restrictions on abortion are beyond the scope of Congressional power.
Why Israelis Are Taking to the Streets
The furious response to a seemingly modest reform reflects a broader dispute about the role of courts in a democracy.
'Freedom Conservatism' Statement of Principles Shows the New Right Isn't the Only Game in Town
A new document with more than 80 signatories puts liberty, not government, at the heart of the conservative movement.
My New Brennan Center Article on Tyler v. Hennepin County and the Cross-Ideological Case for Stronger Judicial Protection for Constitutional Property Rights
The Tyler home equity theft case is just the tip of a much larger iceberg of property rights issues where stronger judicial protection can protect the interests of the poor and minorities, as well as promote the federalist values of localism and diversity.
'Cash Is Independence': Ron DeSantis Slams the Government's Plan for Centrally-Controlled Digital Money
"If you don't trust central authority, then you should see this immediately as something that is very problematic," says the Florida governor.
Federal Zoning Bill Would Preempt Local Parking Mandates
The legislation would give property owners "sole discretion" in deciding how many parking spaces they want to build.
Is Clarence Thomas Ethically Challenged?
Plus: What the editors hate most about the IRS and tax day
Debate: It's Time for a National Divorce
Are political breakups really as American as apple pie?
My New Article "Abortion and Foot Voting in Post-Dobbs America: Prospects for Change"
Second in a two-part series published by Australian Outlook, a publication of the Australian Institute for International Affairs.
Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated)
The Eighth Circuit joins the First, Third, Fourth, Ninth, and Tenth in rejecting the arguments for removal, but Judge David Stras writes an interesting concurrence.
My New Article on "Abortion and Foot Voting in a Post-Dobbs America"
It examines whether people are likely to "vote with their feet" based on interstate differences in abortion policy, after Dobbs. The first in a series of two articles on this topic.
Federal Court Issues Flawed Decision Striking Down Missouri Gun Sanctuary Law
The ruling has significant shortcomings and may be overruled on appeal. The Biden Administration's position in this litigation is wrong for much the same reasons as the Trump Administration was wrong to target immigration sanctuaries.
Biden Embraces the Fearmongering, Vows To Squash D.C.'s Mild Criminal Justice Reforms
In rebuking the legislation, the president showed that he may not know what's in it.
Two GOP Governors Endorse State-Sponsored Immigration Visas
The idea has limitations, but would be a major improvement over the status quo.
Studies Find Conservatives More Committed to Free Speech Online, Federalism
Plus: Government regulation of speech is on trial, biohackers flock to experimental charter city in Honduras, and more…
Eleventh Circuit Becomes Second Federal Appellate Court to Strike Down Tax Mandate Condition in 2021 Covid Stimulus Bill
Like the Sixth Circuit before it, the Eleventh ruled that the requirement that states receiving stimulus money refrain from cutting taxes was never clearly authorized by Congress.
Rand Paul Complains That Democrats Squandered Their Opportunity To Enact Marijuana Reforms
The prospects in the next session, when Republicans will control the House, are iffy.
Chuck Schumer Scrambles To Save the Marijuana Banking Bill He Blocked Last Year
The Senate majority leader is suddenly keen to pass legislation that he portrayed as a threat to broader reform.
Republicans Will Have To Rely on New Deal–Era Court Precedents If They Want a Federal Abortion Ban
The Supreme Court said in 1942 that local activity, not just interstate activity, was subject to congressional regulation.
Sixth Circuit Concludes ARPA Condition on COVID Relief Violates Spending Clause
The U.S. Court of Appeals for the Sixth Circuit concluded some state challenges to the COVID relief bill were not justiciable, but reaches the merits in one case and finds the law lacking.
Senators Reach Bipartisan Deal to Pass Respect for Marriage Act Protecting Right to Same-Sex Marriage
The deal includes several amendments to the original draft legislation that are unlikely to have much substantive effect.
Yale Journal on Regulation Symposium on Peter Shane's "Democracy's Chief Executive"
Participants include Daniel Farber, Keith Whittington, Cristina Rodriguez, Lisa Heinzerling, and myself, among others.
New Research Highlights the Limits of Abortion Bans
Out-of-state and self-managed abortions pose daunting challenges for pro-life legislators.
Biden's Marijuana Reforms Are Long Overdue but Will Have Just a Modest Impact
The president's mass pardon does not extend to pot suppliers, and his rescheduling plans won't make marijuana a legal medicine.
Let States Issue Immigration Visas - a Federalist Response to GOP Governors' Migrant Busing Stunts
GOP governors' ploy highlights the value of giving states the power to issue their own migration visas. It can simultaneously ease labor shortages, reduce disorder at the border, enable more migrants to escape poverty and oppression, and help restore the original meaning of the Constitution.
Lindsey Graham's Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism - But it Might Fly Under Current Supreme Court Precedent
The problem is the Court's ultra-broad interpretation of Congress' power to regulate interstate commerce. But the justices might cut that back.
Marco Rubio, Who Last Month Said Abortion Regulation Should Be Left to the States, Endorses a Federal Ban
The senator's avowed devotion to federalism is no match for his political ambitions.
Lindsey Graham's Abortion Ban, Which Would Override State Laws, Shows Contempt for Federalism
The Republican senator improbably claims his bill is authorized by the 14th Amendment and the Commerce Clause.
1st Circuit Says Maine's Residency Rule for Medical Marijuana Suppliers Is Unconstitutional Protectionism
Notwithstanding federal pot prohibition, the appeals court says, the requirement violated the Commerce Clause's implicit prohibition of anti-competitive interstate trade barriers.
A Case That Pits Gun Rights Activism Against Federalism
Gun control advocates may embrace the 10th Amendment.
Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court
Five Circuits have considered, and rejected, fossil fuel efforts to get state-law tort and nuisance claims removed to federal court. Will their luck change in the Supreme Court?
Will Anti-Abortion States Suffer a Brain Drain?
We won't know the answer for some time. I suspect the drain will be relatively small, if we focus on abortion bans, as such. But it may get larger if anti-abortion laws end up having substantial negative side-effects on other activities.
Six More States Could Legalize Recreational Marijuana This Fall
If all of the ballot initiatives succeed, pot will be legal in 25 states.
The Biden Administration Defends the Federal Ban on Gun Possession by Medical Marijuana Users
The Justice Department says that policy is rational and consistent with the right to keep and bear arms.
Cato Supreme Court Review Article on the Supreme Court's January 2022 Vaccine Mandate Decisions
I am one of the relatively few people who think the Court got both cases right.
The Conservative Case for Sanctuary Cities and States
Political scientist David Leal explains why conservatives should reject efforts to compel states and localities to help enforce federal laws these jurisdictions oppose.
Chuck Schumer's Doomed Marijuana Monstrosity Is Not a Serious Attempt To Repeal Pot Prohibition
The Senate majority leader's 296-page bill would compound the barriers to successful legalization.
Steve Sanders on Full Faith and Credit and the Respect for Marriage Act
A prominent academic expert on both same-sex marriage and full faith and credit weighs in.
Federalism and the Respect for Marriage Act
Does the bipartisan act protecting same-sex marriage run afoul of constitutional federalism principles? The answer is definitely not with respect to one of its provisions, and probably not with respect to the other.
Without Roe v. Wade, Litigants Look to State Constitutions for Protection of Abortion Rights
Several state supreme courts already have recognized the right to terminate a pregnancy. Will more states join the list?
Justice Breyer's Final(?) Majority Opinion Is A Win For Federal Power
Justice Breyer consistently resisted conservative efforts to constrain federal power, so his opinion in Torres is a fitting swan song.
