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…
Federalism
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.
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.
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.