A month ago I posted about the interesting legal and policy question of whether business closures aimed at preventing spread of the COVID-19 virus should be seen as a taking for which fair compensation is due. I’ve got another round on that subject up now at Cato at Liberty.
In addition, the piece I wrote a month ago for the Wall Street Journal on federalism and the pandemic response is now out from behind that newspaper’s paywall in a Cato reprint.
I joined host Newel Normand to talk federalism, the Constitution and the pandemic on New Orleans’s WWL on Thursday. You can listen here.
I’m in the Wall Street Journal today with this paywalled piece on the triumph of federalism on pandemic response: would-be modernizers aren’t scoffing at state government any more, as governors lead the way.
The piece briefly mentions that after surviving yellow fever Alexander Hamilton and his wife Eliza underwent quarantine in the Schuyler Mansion on the order of Albany officials. That was a fun one to research. The essentials are found briefly stated in item number 10 of this list or in this longer narrative. Hamilton wrote a letter griping about the conditions of his confinement. And this article recounts how after the yellow fever outbreak of 1793, Congress expanded the federal government’s role in epidemic response, seen as a helper to the states.
More: responsive thoughts on federalism and the virus emergency from Ilya Somin.
The feds plan to be less heavy-handed in using consent decrees to micromanage states and cities, and there’s a good case for that, I argue at National Review. Alas, as I explain, national media bungled the story in November by characterizing Jeff Sessions’s memo as if it were primarily aimed at reducing oversight of police. “Not once in its seven pages does the word ‘police’ even appear.”
My short piece doesn’t take up the question of how the well-documented problems of consent decrees in other areas are to be weighed against the possible advantages of the device in curbing abuse-prone police departments. But at least some advocates of police reform and accountability have expressed doubts about whether the process, which can sometimes take political pressure off the local authority, really works as advertised [David Meyer Lindenberg, Tim Lynch, Scott Greenfield; see also John McGinnis]
Retired Justice Sandra Day O’Connor has released a letter to the public about her declining health. O’Connor is rightly admired for her inspiring life story and unswerving loyalty to the highest civic principles as well as the ideals of the judiciary. Even at this difficult moment of her life, as the letter shows, she is intent on advancing the res publica.
That O’Connor was the swing Justice of her day did not mean that her role on the Court came down to trimming or compromise. Together with fellow Arizonan Rehnquist, no one was more central in the Court’s reinvigoration of federalism, drawing on her record as the only Justice of our era with extensive service in a state legislature. She has led public discussion in the right direction on issues ranging from professional responsibility and race and redistricting to judicial elections.
And as I noted in 2005, if a single jurist deserves our thanks for helping turn back what had seemed like an irresistible trend toward ever more litigiousness in the civil justice system, it is she. “More vocally than any of her present colleagues, Justice O’Connor sounded the alarm against what she’s termed ‘the increasing, and on many levels frightening, overlegalization of everyday life in our country today.'” Her leading role on such issues as due process review of punitive damages reflected that view. For that, as well as for her notice of my work along the way, count me among the grateful.
In the New Jersey sports betting case, a Supreme Court divided 7-2 confirms that the Constitution sharply limits the power of the federal government to compel states to enact laws furthering federal policy. The implications are many in fields “from environmental regulation to sanctuary cities, marijuana to guns.” [Ilya Shapiro] [Ilya Somin] It’s a “major victory for federalism….makes clear that a majority of the Court is strongly committed to the anti-commandeering principle. That bodes well for state efforts to oppose commandeering (and perhaps other types of federal coercion) in other areas.” Earlier here, here, here, etc.
“Is there now more opportunity for cross-ideological support for [federalism]? Or do continuing divisions on the nature of federalism such as the debate between competitive and cooperative federalism make this an unpromising alliance?” Panel at Federalist Society Lawyers’ Convention with John McGinnis, Heather Gerken, Abbe Gluck, Ilya Somin, John Eastman with Judge William Pryor moderating.
Attorney General Jeff Sessions has rescinded an earlier Justice Department memo which had prescribed a hands-off approach to enforcing some aspects of the federal ban on marijuana in states that have legalized the drug for medical or recreational use. A needless step backward for federalism and state autonomy, or a necessary implication of the rule of law and the associated geographical uniformity of federal law? Some commentaries: Ken White/Popehat; Jacob Sullum (“Although [the] move reflects Sessions’ well-known opposition to marijuana legalization, it is not clear how big an impact it will have on the cannabis industry, because federal prosecutors have always had broad discretion but limited resources in this area”); Jonathan Blanks (“This move endangers state-legal businesses and violates the principle of federalism that has been central to the Republican Party for decades”); Jonathan Adler; Ilya Somin; Jeffrey Miron (“Marijuana liberalizations (decriminalization, medicalization, and legalization) have generated none of the negatives asserted by Sessions [who compares the drug to opiates and links it to violence]; in fact, the evidence shows minimal impact on use, health, traffic safety, education, or crime”).