Maximalists Threaten a Federalist Compromise on Abortion
National legislation and extraterritorial application of state laws are inconsistent with the local leeway that the Constitution protects.
Federalism
Some States Restrict Abortion After Dobbs, Others Rush To Protect Access
Plus: What overturning Roe means for Republicans' future, court halts ban of Juul products, and more...
John Roberts and the Path SCOTUS Did Not Take on Abortion
Although the chief justice's incrementalism did not sway his colleagues, his observations about the meaning of a "right to choose" could be relevant in state legislatures.
Kavanaugh Indicates States Can't Bar Residents From Getting Abortions in Other States
This makes it likely, though not certain, that the Supreme Court will strike down such laws if states enact them.
Here Is a State-by-State Rundown of What Will Happen Now That SCOTUS Has Freed Lawmakers To Restrict Abortion
Most states are unlikely to enact bans, but 22 either have them already or probably will soon.
Legalizing Pot Requires GOP Support
With its unnecessarily complicated and contentious provisions, the MORE Act received only three Republican votes in April.
Could Congress Prohibit Abortion If Roe Is Overturned? (Updated)
Questions about the scope of federal power will remain.
Ninth Circuit Concludes Arizona Has Standing to Challenge Conditions on COVID Relief Funds
Language in the American Rescue Plan Act prohibits states from using the funds "directly or indirectly" to offset lost revenues from tax cuts.
The Failed Senate Abortion Bill Went Far Beyond Preserving Current Rights
Without citing any constitutional authority to dictate state abortion policies, the bill would have overridden regulations that have been upheld or have yet to be tested.
Can States Ban Residents From Getting Abortions in Other States, if Roe v. Wade is Overturned?
The answer is probably "no." But the federal government could more easily ban such transactions.
Is Abortion a Constitutional Right? Josh Blackman on Alito's Draft
The constitutional scholar on abortion, Sam Alito, and the future of federalism
Pro-Life Libertarians Can Cautiously Cheer the End of Roe
For libertarians who see unborn babies as innocent rights-bearing individuals, reducing the number of lives ended by abortion brings us closer to our credo.
Why Pro-Choice Blue States Should also be Pro-YIMBY
Atlantic writer Jerusalem Demsas argues that blue states can't give "refuge" to people fleeing abortion restrictions if they don't cut back on zoning restrictions that lead to sky-high housing costs.
Will People Vote With Their Feet for Abortion Rights in a Post-Roe World?
The answer to this important question is highly uncertain. I tentatively predict a significant, but still modest, increase in abortion-driven migration.
A Qualified Defense of Letting States Decide on Abortion
Fewer Americans would be forced to live under a legal regime, imposed from on high, that is contrary to their convictions on a matter of life and death.
Could Congress Ban Abortion Nationwide if Roe Gets Overruled?
Under current Supreme Court precedent, the answer is probably "yes." But that precedent might not hold, thanks in part to Clarence Thomas.
Anthony Fauci Thinks Scientific Expertise Trumps the Rule of Law
The president’s COVID-19 adviser embodies the arrogance of technocrats who are sure they know what’s best for us.
If the CDC's Mask Mandate Is 'Necessary for the Public Health,' Why Didn't the DOJ Seek a Stay To Restore It?
The Biden administration's main priority seems to be leaving the agency's authority vague enough to allow future interventions.
Congress Won't Legalize Pot Anytime Soon, but It Could Protect Marijuana Businesses by Passing Banking Reform
Chuck Schumer seems less interested in achieving cannabis reform than in making political hay from his inevitable failure.
Florida's Agriculture Commissioner Says the Ban on Gun Possession by Marijuana Users Is Unconstitutional
Nikki Fried, a Democrat, is suing the Biden administration, arguing that the policy violates the Second Amendment and a congressional spending rider.
Supreme Court Definitively Ends the SALT Tax Deduction Case
The highly dubious lawsuit filed by four blue states against the the law capping federal tax deductions for state and local taxes is now truly dead in the water.
Supreme Court Denies Certiorari in Blue State Challenge to Cap on SALT Deduction
An utterly meritless suit ends not with a bang, but a whimper.
When Will Democrats Get Serious About Repealing Pot Prohibition?
Instead of building on Republican support for federalism, they seem determined to alienate potential allies.
Military Federalism and State Sovereign Immunity
Reflections from Robert Leider on the oral argument in Torres v. Texas Department of Public Safety.
Video of American Enterprise Institute Event on my Book "Free to Move: Foot Voting, Migration, and Political Freedom"
It includes commentary by housing policy specialist Emily Hamilton (Mercatus Center), and economist Filipe Campante (Johns Hopkins University).
The Verdict Against Ahmaud Arbery's Killers Highlights the Problems With Federal Hate Crime Statutes
Such laws, which allow redundant prosecutions based on defendants' bigoted beliefs, supposedly are authorized by the amendment that banned slavery.
Biden Administration Files Dubious Lawsuit Challenging Missouri's Gun Sanctuary Law [Updated with a Note on State Courts]
The suit deserves to fail for much the same reasons as Trump-era attacks on immigration sanctuaries.
This Texas Town Rejected Stimulus Money to Avoid Vaccine Mandates
"Obviously we could have used the money, but at what cost?,” says Sheila Hemphill, an activist and lobbyist from Brady, Texas
My New Article on "Rethinking the Supreme Court's Impact on Federalism and Centralization"
The article challenges longstanding conventional wisdom. It is coauthored with political scientist Michael Dichio (University of Utah).
Justice Breyer, Democracy, and Expertise
His judicial philosophy emphasized promotion of democracy, a theme in tension with his emphasis on the need for deference to expertise.
In the Case That Blocked OSHA's Vaccine Mandate, the Justices Disagreed About When COVID-19 Counts As a Workplace Hazard
The crux of the argument is the distinction "between occupational risk and risk more generally."
My New Article on "How Judicial Review Can Help Empower People to Vote with Their Feet"
The article challenges longstanding conventional wisdom claiming that judicial review of democratically enacted laws is at odds with popular political choice.
Defending OSHA's Vaccine Mandate, Sonia Sotomayor Says 'I'm Not Sure I Understand the Distinction' Between State and Federal Powers
The justice's reference to a national "police power" raised some eyebrows.
The Supreme Court Seems Inclined To Block OSHA's Vaccine Mandate
Most of the justices appear to be skeptical of the argument that the agency has the power it is asserting.
My New "The Week" Article on "The Case for Empowering Americans to Vote with Their Feet"
How foot voting can expand political freedom for Americans, particularly the poor and disadvantaged.
Who's Voting with their Feet for Texas and Why
Recent articles in the Texas Monthy and the New York Times provide some useful insight on why Texas has been gaining migrants at such a high rate.
Podcast Interview about my Book "Free to Move" with Hoover Institution Immigration Economist Tim Kane
We cover many issues related to the book, as well as freedom of movement more generally - both domestic and international.
Revised Edition of My Book "Free to Move: Foot Voting, Migration, and Political Freedom" is Now Out
Now available on Amazon, after a supply chain delay.
Horizontal Federalism and Abortion after Dobbs
Flagging some interesting blog posts on the question.
If Roe Gets Overruled, Abortion Policy may not be "Left to the States"
Absent Roe, current Supreme Court precedent likely gives the federal government considerable power to either restrict or protect abortion rights. But that precedent could potentially be limited in ways advocated by Supreme Court Justice Clarence Thomas, an unlikely potential savior of abortion rights!
Without Promising Alternatives to the 'Viability' Rule, the Supreme Court Seems Inclined to Ditch Its Abortion Precedents
The justices may find it difficult to uphold Mississippi's abortion ban without overturning Roe v. Wade.
This Republican's Marijuana Legalization Bill Aims To Build Bipartisan Support for Repealing Federal Prohibition
Rep. Nancy Mace is touting "a framework which allows states to make their own decisions on cannabis."
Here Are the Arguments That Persuaded the 5th Circuit To Block OSHA's Vaccine Mandate for Private Employers
The appeals court said the rule, which was published on Friday, raises "grave statutory and constitutional issues."
Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Preempted
Nuisance claims may not be a particularly effective way to address the problem of climate change, but federal law does not preempt state common law nuisance claims seeking compensatory damages.
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.
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.
