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Posts by Mark Wilson

Apr 27

States’ Rights . . . to Do What, Exactly?

Posted 24 days ago by Mark Wilson

So we’ve got a federal health care law, the federal government arguing for exclusive federal authority in immigration, and statutes that allow for federal prosecution of basically any crime if that crime involved using the mail or transmitting anything over a wire.

Whither federalism?

2012 is a very different place from 1789, where there were no phones, no lights, no motor cars, not a single luxury! Of necessity, a person had the most interaction with his or her local government, and perhaps the state government. But the national government? Unless you lived on the mid-Atlantic coast, Washington, D.C. was a far-off place. Read more

Apr 4

The Medical Marijuana Bait-and-Switch

Posted 47 days ago by Mark Wilson

The federal government raid and shut-down of Oaksterdam University in Oakland, California is the culmination of a bait-and-switch that began in 2009 with the Justice Department’s “Ogden Memo.” The Ogden Memo was ostensibly a clarification of federal policy on raiding medical marijuana dispensaries in states where such dispensaries are legal under state law. The Department, wrote Deputy Attorney General David Ogden, should expend resources only in situations where dispensary activities accompanied violence, possession of firearms, ties to criminal enterprises, or other activities not within the scope of state laws. The Justice Department simply did not have the resources to target all dispensaries, which were still in violation of the federal Controlled Substances Act.

Fairly quickly, the Administration backed away from the Ogden Memo. Throughout 2010 and 2011, the Drug Enforcement Administration continued raiding dispensaries. Last June, a new memo emphasized that all dispensaries should be a top priority for the Justice Department. Just last week, San Francisco District Attorney George Gascón surprisingly announced that he considered all twenty-one of the city’s dispensaries illegal, though he later recanted and declared his support for medical marijuana. Read more

Mar 28

It’s ‘Regulation’ if You’re Already There

Posted 54 days ago by Mark Wilson

Reading the brief for the states opposing the Affordable Care Act, one is properly acquainted with the definition of a Jeremiad: “a prolonged lamentation or complaint; also, a cautionary or angry harangue.” The states’ brief is lean on legal arguments and long on exhortations that, if the Supreme Court upholds the mandatory coverage provision of the Affordable Care Act, we’re that much closer to a totalitarian dystopian society.

The states’ focus — and, it turns out, the focus of various Justices — is what “regulation” means. The Commerce Clause authorizes Congress only to regulate interstate commerce. Does this include creating interstate commerce? That’s the states’ framing of the issue, but it’s centered on a premise that may or may not be true: that people who choose not to purchase health insurance are not engaged in interstate commerce. Read more

Mar 22

An Emphasis on Process over Substance: Another Reason to Abolish the Death Penalty

Posted 60 days ago by Mark Wilson

What has Justice John Paul Stevens been up to in retirement? An interview on The Colbert Report, for one. And finding time to write reviews for The New York Review of Books, for another.

Last year, the recently-retired Justice penned a review of Professor William Stuntz’s book, The Collapse of American Criminal Justice. Earlier this month, Justice Stevens returned to reviewing books on criminal justice with The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s.

Justice Stevens’ review of Professor Stuntz’s book is especially enlightening. It highlights the problems with American criminal justice that come from two vectors: collusion between the executive, judiciary, and legislative branches to be “tough on crime,” and the Constitution’s emphasis on procedural rights over substantive rights. This latter vector leads us to the most undesirable outcomes. Read more

Mar 5

The Walls of DOMA Come Tumbling, Tumbling Down

Posted 77 days ago by Mark Wilson

One question that has arisen all too infrequently in discussions of California’s Proposition 8 is, “What effect would such a ruling have on DOMA?” The Defense of Marriage Act (DOMA), chaptered at 1 U.S.C. § 7, defines “marriage” for federal purposes as “a legal union between one man and one woman as husband and wife.”

Judge Jeffrey S. White, who presides in my ‘hood (the U.S. District Court for the Northern District of California), recently found that DOMA is unconstitutional because (1) it “treats gay and lesbian individuals differently on the basis of their sexual orientation,” (2) laws classifying gays and lesbians differently from heterosexuals are subject to heightened scrutiny, and (3) as such, DOMA fails review both because it is not substantially related to an important government objective, and because the government’s proffered objective (“promoting procreation within marriage”) is not “a legitimate reason to exclude same-sex marriages from federal recognition.” (See Golinksi v. Office of Personnel Management.)

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Feb 22

Citizens United and the Precedent of Doom

Posted 89 days ago by Mark Wilson

Citizens United II is coming, looming like a sequel to Friday the 13th. This time, the part of the Federal Election Commission will be played by the State of Montana. Though the Court has not yet granted certiorari, an order from last week staying the Montana Supreme Court’s decision proves insightful. Look out, Montana! Don’t go into that dark basement alone!

Accompanying the State on its journey through the abandoned cabins of Camp Crystal Lake are Justices Breyer and Ginsburg, still highly suspicious of the majority’s reasoning in Citizens United. In last week’s order, Justice Ginsburg wrote, “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United . . . make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’” Read more

Feb 2

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Oklahoma’s Innovation in Stopping Judicial Review

Posted 109 days ago by Mark Wilson

Oklahoma Senate Joint Resolution 84 would remove the Oklahoma Supreme Court’s jurisdiction “over the constitutionality of laws enacted in this state.” In its place, the bill proposes an “Ad Hoc Court of Constitutional Review.” This would make Oklahoma the only state where the Supreme Court, or equivalent is not also the constitutional court.

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Jan 25

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U.S. v. Jones: Gear Up for the Sequel

Posted 117 days ago by Mark Wilson

“The Fourth Amendment protects people, not places.” Except when it protects places, which it apparently does sometimes. On Monday, the Supreme Court ruled unanimously that the government’s placement of a GPS device on the defendant’s car in United States v. Jones was a search, and without a warrant, was unconstitutional.

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Jan 18

Indecency, Hypocrisy, and Dennis Franz’s Bottom

Posted 124 days ago by Mark Wilson

Last week, the Supreme Court heard oral arguments in FCC v. Fox, where the Court must decide whether the FCC’s “fleeting” indecency policy, which includes isolated profanity and brief nudity, is unconstitutionally vague. There’s something missing from this discussion. The reality is that violence almost always passes constitutional muster. Why the double-standard?

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Jan 12

Richard Cordray Is the Latest Symptom

Posted 130 days ago by Mark Wilson

While we were away on the holiday break, President Obama used his constitutional authority to appoint Richard Cordray as the director of the new Consumer Financial Protection Bureau (CFPB). There are certainly some questions about the degree to which the Senate’s pro forma sessions permitted (or did not permit) President Obama to exercise his interim appointment authority. But there’s an even bigger question, here. Why did he have to resort to an interim appointment?

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