Cato’s Caleb Brown interviews me on the immediate legal implications of this week’s same-sex marriage cases. Because we spoke the day after the ruling, some of my comments have already been outrun by events; for example, it took only a day or two, not weeks, to overturn the Ninth Circuit stay and begin holding marriages. And the Obama administration has now declared that it will extend federal recognition to all lawfully issued marriage licenses even if not recognized in the state of a couple’s domicile, which had been one of the two biggest immediate practical uncertainties. (The other is the question of retroactive effect: will taxpayers, for example, be allowed to amend filings for past years?) Given the recognition of marriage licenses obtained outside a state of domicile, “States like Texas and Florida will begin noticing — or perhaps they won’t notice — that some of their citizens are getting some federal benefits that somewhat foil their state policy.”
A link to the podcast is here.
The rolls have been expanding steadily for years, at tremendous cost, and the new NPR report, by Chana Joffe-Walt, is just plain devastating:
A person on welfare costs a state money. That same resident on disability doesn’t cost the state a cent, because the federal government covers the entire bill for people on disability. So states can save money by shifting people from welfare to disability. And the Public Consulting Group is glad to help.
PCG is a private company that states pay to comb their welfare rolls and move as many people as possible onto disability.
More: Jagadeesh Gokhale, Cato Regulation mag (PDF)(program “facing insolvency in just three years”); Ronald Bailey, Reason; Reihan Salam; Wynton Hall, Breitbart.com (furious counterattack from some on Left). And Heather Mac Donald, with notable prescience, saw the problem coming more than 17 years ago.
P.S.: A disability lawyer’s response.
On Tuesday and Wednesday the Supreme Court will hear oral argument on Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.
The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.
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Advocates press for a national law on college hazing [ABA Journal]
“For operational purposes, ‘states’ are best understood as undercapitalized health care and pension funds that write speeding tickets on the side.” [Law and Liberty]
The federal government should keep its busy hands off local traffic laws — and that goes for bribing states to its will, as well as issuing direct orders. Today the House will debate a measure that would make that point by cutting off a fledgling program that would pay states for doing what “distracted driving” crusader and DoT secretary Ray LaHood lacks the constitutional authority or political capital to do directly. I explain in my new post at Cato at Liberty.
“…we [Judge Janice Rogers Brown and I] dress as Lillian Hellman and Yosemite Sam respectively.” — Michael Greve on his participation in the presumed conspiracy to restore the dreaded “Constitution in Exile” of pre-New Deal days. [Liberty and Law]
Soon-to-be Prof. Greve (he will be joining the George Mason law faculty after many years at AEI) was at Cato this week to discuss his remarkable new book, The Upside-Down Constitution. At the risk of damning with faint praise, I will say that his book is the most stimulating work I know of on the subject of federalism to have been published in my lifetime. If I could sum up his thesis, it would be that one of the past century’s gravest constitutional malfunctions has been that the states (not a misprint, he means the 50 states) have overrun their proper role in the constitutional scheme. More on his thesis here, here, and, on “Madison’s nightmare,” here. In all seriousness, I recommend The Upside-Down Constitution highly; although it’s demandingly complex in places, I can’t imagine reading it without one’s understanding of the constitution, and federalism in particular, being permanently changed.
Erie Railroad Co. v. Tompkins (1938) was the New Deal-era decision that directed federal courts to apply the law of the states in which they are located, and in so doing abolished a huge body of federal common law. In a new series of posts based on his book The Upside-Down Constitution, Michael Greve argues that Erie was wrongly decided and in practical terms a gigantic mistake that needs correcting. [Liberty and Law]
In the earlier and sounder conception of federalism, local and national government were meant to check each other’s overweening power. Nowadays, unfortunately, the two often interact in a cooperative way to encourage bigger government at both levels, as Washington bribes the states to spend and regulate more. I explain at Cato at Liberty (& Damon Root, Reason).
It’s quite real, I argue at Cato at Liberty — and I try to draw some distinctions as to ways Congress could usefully address liability without inserting itself into the proper business of the state courts. More: Adler, Volokh; Reynolds, Instapundit, Turkewitz, Childs/TortsProf, Beck/Drug & Device Law.
A case called Bond v. U.S., arising from an admittedly bizarre fact pattern involving a wife’s attempt to injure a romantic rival, provides an opportunity to test the limits of extension of federal criminal law into areas that would ordinarily serve as the occasion of state-level prosecution. The Cato Institute has filed an amicus brief urging a narrow view of the proper federal criminal role in the case, in pursuit of the view that the federal government is one of limited, enumerated powers. [Ilya Shapiro, Cato]
Ken at Popehat: “Let’s get this straight from the start: I’m in favor of anti-SLAPP statutes and vigorous legal protections for free speech. I’m just not convinced that federalizing libel law is the right way to go about it.” Earlier on the Cohen bill here.
Perhaps the most buzzed-about story while I was on vacation (I’m back now) was the frank acknowledgment by former Democratic Party chairman (and former physician) Howard Dean when asked why liability reform was omitted from the health care redesign. From the New York Times “Prescriptions” blog:
The man then asked why tort reform was not part of any health overhaul.
Dr. Dean replied that the more items in a big bill, the more enemies it will have. “The people who wrote it did not want to take on the trial lawyers in addition to everyone else,” Dr. Dean said.
Dr. Dean also said he believed that patients should be able to bring actions against health care professionals, but they should go to arbitration. Then the case could go to trial, he said, but the arbitration verdict should be submitted as evidence. Not much reaction to that either way.
Mr. Moran [Northern Virginia Congressman Jim Moran] then apologized to the man whose identity he had questioned and added his 2 cents about why tort reform was not part of any bill. He said if it were, such a bill would have to go through the judiciary committee, which he said was one of the most partisan in Congress and would never have reported it out.
Commentary: Mark Tapscott/Examiner, Washington Times, Darrin McKinney/ATRA, Dan Pero linking Tiger Joyce/Investors Business Daily, Charles Krauthammer/FoxNews.com via Carter Wood/PoL and NRO “Corner”, Fred Barnes/Weekly Standard.
Relatedly, Philip K. Howard writes on “Stonewalling Legal Reform“, citing a Jon R. Gabel piece in the Times that rebuts a much-touted-by-trial-lawyers Congressional Budget Office report minimizing the likely cost reductions from malpractice reform. From the American Spectator Blog, “Conservative Leaders on Costly Lawsuits and Health Care Reform“. And Ramesh Ponnuru at NRO reiterates his argument that while malpractice reform is a good idea, it shouldn’t be imposed on the national level by the federal government.
More: Jim Lindgren at Volokh Conspiracy skewers an appalling report on health care “myths” which received, but did not deserve, the imprimatur of Indiana University.