Libertarian Rating of States

Many posts have discussed differences among the states, with special emphasis on California and Texas.

William Ruger and Jason Sorens at Cato:

This 2023 edition of Freedom in the 50 States presents a completely revised and updated ranking of the American states on the basis of how their policies protect or infringe on individual liberty.

This edition improves on the methodology for weighting and combining state and local policies to create a comprehensive index. Authors William Ruger and Jason Sorens introduce many new policy variables suggested by readers and changes in the broader policy environment (e.g., universal school choice and state laws that shape local zoning authority).

More than 230 policy variables and their sources are available to the public on this website. New policy variables include a battery of state‐​level land‐​use laws affecting housing, several new occupational licensing measures, a reworked household goods moving company licensing variable that focuses on the “competitor’s veto” element, qualified immunity limitations, and new abortion laws for the alternative indices. In this edition, the authors have updated their findings to

• Provide the most up‐​to‐​date freedom index yet, including scores as of January 1, 2023.
• Retrospectively evaluate how state COVID-19 responses affected freedom during the COVID-19 pandemic and beyond.
• Refresh their analysis of how the policies driving income growth and interstate migration have changed—before and after the Great Recession and during the pandemic.

In addition to providing the latest rankings as of the beginning of 2023, the 2023 edition provides annual data on economic and personal freedoms and their components back to 2000 and for some variables, back to the 1930s.

To read the full report, visit Free​dominthe50S​tates​.org.

See in particular, the writeups for California (#48), Texas (#17), and Florida (#2) 

 

RICO

 James C. McKinley Jr. at NYT:

At the heart of the indictment against Mr. Trump and his allies in Georgia are racketeering charges under the state Racketeering Influenced and Corrupt Organizations Act, or RICO.

Like the federal law on which it is based, the state RICO law was originally designed to dismantle organized crime groups, but over the years it has come to be used to prosecute other crimes, from white collar Ponzi and embezzlement schemes to public corruption cases.

It’s a powerful law enforcement tool. The Georgia RICO statute allows prosecutors to bundle together what may seem to be unrelated crimes committed by a host of different people if those crimes are perceived to be in support of a common objective.

“It allows a prosecutor to go after the head of an organization, loosely defined, without having to prove that that head directly engaged in a conspiracy or any acts that violated state law,” Michael Mears, a law professor at John Marshall Law School in Atlanta. “If you are a prosecutor, it’s a gold mine. If you are a defense attorney, it’s a nightmare.”

Prosecutors need only show “a pattern of racketeering activity,” which means crimes that all were used to further the objectives of a corrupt enterprise. And the bar is fairly low. The Georgia courts have concluded that a pattern consists of at least two acts of racketeering activity within a four-year period in furtherance of one or more schemes that have the same or similar intent.

The California Effect and Red State Pushback

At NYT, Conor Dougherty reports that California Assembly Member Buffy Wicks (D) declined to run for the House because she could accomplish more as a state legislator.

Consider, she said, an internet-privacy bill she drafted last year, called the Age-Appropriate Design Code. It requires websites to ratchet up their default privacy settings to protect children from online tracking and data collection. The bill was signed by Gov. Gavin Newsom over the opposition of the tech industry, which argued that it was too complicated to implement and tantamount to a state law setting national policy. That, in fact, was the point: Wicks passed the law with help from a member of Britain’s House of Lords, who had created similar regulations in her country, in the hope that if Britain and California passed the same rules, a global standard was likely to follow.

California has been so successful at bending national policy in its direction that academics have taken to calling the phenomenon the California effect. From labor and consumer protections to corporate governance, energy and animal-welfare measures, California’s laws are the most widely copied in the nation. Most corporations can’t afford to ignore its mammoth market (its $3.6 trillion economy is the world’s fifth-largest, exceeding India’s); they often end up adopting California’s rules across the country because doing so is cheaper than trying to craft two separate sets of products and policies.

For decades, California has been able to fund a sprawling administration whose agencies have federal-size budgets and wide latitude to set and enforce rules. But as the nation has fractured along cultural and economic lines, Republican governors, like Greg Abbott of Texas and Ron DeSantis of Florida, have sought to experiment with legislative activism of their own — a kind of anti-California effect. Recently, a number of red states have tried to create conservative guidelines for textbooks, explored ways of preventing companies from paying for employees’ abortions, tried to stop (or at least slow) the move away from fossil fuels and sought to limit Medicaid patients’ access to gender-transition care.

TikTok, Montana, and the Dormant Commerce Clause

 Montana has banned TikTok, which is suing.

119. The Commerce Clause of the U.S. Constitution grants Congress the power to regulate commerce with foreign Nations, and among the several States. U.S. Const. art. 1, § 8, cl. 3. While the Commerce Clause is framed by its text [as] an affirmative grant ofpower to Congress , the so-called Dormant component of the Clause has long been recognized as a self-executing limitation ofthe States to enact laws imposing substantial burdens on [interstate] commerce ." South-Central Timber Dev.,Inc. v.Wunnicke ,467 U.S.82 ,87 (1984).

 120. The TikTok Ban imposes substantial burdens on interstate commerce inviolation of the Commerce Clause and other structural provisions ofthe Constitution by prohibiting Plaintiff from operating TikTok in Montana and penalizing Plaintiff any time a user in Montana accesses TikTok or is offered the ability to access or download TikTok in the State . The TikTok Ban is not limited to Montana residents ; it applies to anyone in the State ,including those visiting or merely passing through for work.

121. Substantial burdens on interstate commerce generally result from inconsistent regulation ofactivities that are inherently national or require a uniform system of regulation. Bernstein v.Virgin Am.,Inc.,3 F.4th 1127, 1135 (9th Cir. 2021) (quoting Nat'lAss'n of Optometrists & Opticians v. Harris,682 F.3d 1144, 1148 (9th Cir.2012)).

122. Plaintiff's operation of TikTok ,an application used by over 150million users in the United States ,including in every State, is inherently national in scope and requires a uniform system of regulation, not one subject to the policy decisions offifty separate States.

 

 

Marijuana Policy Problems

 Zusha Elinson  and Jimmy Vielkind at WSJ:

The illegal marijuana trade is booming in California, seven years after the state legalized its possession, cultivation and distribution. Unlicensed sales totaled $8.1 billion last year, dwarfing legal sales of $5.4 billion, according to estimates by New Frontier Data, a cannabis analytics firm.

Lawmakers in New York are concerned their state is headed in a similar direction. New York legalized cannabis possession in small amounts in 2021. Two years later, just five shops sell marijuana legally in New York City, while 1,400 bodegas, smoke shops and other outlets without licenses do, according to an estimate by the city sheriff.

The persistence of the illegal pot business in the face of state legalization reflects a variety of forces. Slow rollouts of dispensary licenses leave unmet demand that unlicensed outlets are happy to serve. Police and prosecutors, facing pressing problems such as violent crime, give little priority to stopping illegal pot. And high taxes on legal sales fan the embers of illicit ones.

“When you start seeing tax rates that are approaching 30 to 40 percent on products, it’s really going to be difficult to compete against the remnants of an illegal market,” said Mason Tvert, a consultant who played a role in several state campaigns to legalize cannabis.

Some of the 22 states that have legalized marijuana possession have had better luck extinguishing the black market, said industry observers, because they have permitted more legal retail shops, streamlined the process of going legal or didn’t have such entrenched networks of dealers or growers at the outset. At the federal level, marijuana remains illegal.

Student Debt Relief and Biden v. Nebraska

Katherine Knott at Inside Higher Ed:

Several Supreme Court justices appeared skeptical of the Biden administration’s plan to forgive up to $20,000 in federal student loans during a nearly four-hour hearing Tuesday.

As expected, the hearing focused on whether federal statute allows the Biden administration to forgive student loans, whether the plaintiffs have standing to challenge the plan and whether the justices should apply a stricter standard in their review of the two lawsuits before the court.

The court’s six conservative justices homed in on questions of fairness and what Congress intended when it authorized the education secretary in 2003 to “waive” or “modify” provisions of student loan programs to ensure that those affected by a national emergency aren’t worse off financially.

The conservative justices seemed to think the Biden plan was too large to say it was a modification. “We’re talking about half a trillion dollars and 43 million Americans,” Chief Justice John Roberts Jr. said. “How does that fit under the normal understanding of modifying?”

Six states—Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina—and two Texas residents filed separate lawsuits in the fall to block the debt-relief plan before it began. The states allege that the plan would harm state revenues and agencies that hold student loans, while the Texas individuals take issue with the fact that they didn’t have a chance to comment on the proposal.

Both sets of plaintiffs argue that the Higher Education Relief Opportunities for Students Act of 2003, which the Biden administration says justifies its debt-relief plan, does not authorize that plan.

POTUS and Marijuana

From President Biden:

As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana. Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities. And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.

Today, I am announcing three steps that I am taking to end this failed approach.

First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana. I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals. There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result. My action will help relieve the collateral consequences arising from these convictions.

Second, I am urging all Governors to do the same with regard to state offenses. Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.

Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law. Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.

Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.

Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs. 

The Congressional Research Service finds that a president cannot directly decriminalize marijuana, but there is more to the story -- hence step three of the Biden announcement.

Either Congress or the executive branch has the authority to change the status of marijuana under the CSA [Controlled Substances Act]. Congress can change the status of a controlled substance through legislation: Congress included  marijuana in Schedule I by legislation when it enacted the CSA, and has more recently passed legislation to impose controls on other substances, including synthetic cannabinoids and fentanyl analogues. In the alternative, the CSA empowers DEA to make scheduling decisions through the notice-and-commentrulemaking process, in consultation with the Department of Health and Human Services (HHS) (HHS has delegated its factfinding role in this process to the Food and Drug Administration (FDA)). The CSA provision directing DEA to schedule controlled substances as “required by United States obligations under international treaties” may limit the agency’s authority to relax controls of marijuana; another CRS report discusses considerations for Congress related to marijuana’s status under international drug control treaties.

If the President sought to act in the area of controlled substances regulation, he would likely do so by executive order. However, the Supreme Court has held that the President has the power to issue an executive order only if authorized by “an act of Congress or . . . the Constitution itself.” The CSA does not provide a direct role for the President in the classification of controlled substances, nor does Article II of the Constitution grant the President power in this area (federal controlled substances law is an exercise of Congress’s power to regulate interstate commerce). Thus, it does not appear that the President could directly deschedule or reschedule marijuana by executive order.

Although the President may not unilaterally deschedule or reschedule a controlled substance, he does possess a large degree of indirect influence over scheduling decisions. The President could pursue the appointment of agency officials who favor descheduling, or use executive orders to direct DEA, HHS, and FDA to consider administrative descheduling of marijuana. The notice-and-comment rulemaking process would take time, and would be subject to judicial review if challenged, but could be done consistently with the CSA’s procedural requirements. In the alternative, the President could work with Congress to pursue descheduling through an amendment to the CSA.

Weed the people: These are the states where marijuana is legal.

This map reveals that public opinion, red and blue states, and voters across the political spectrum have all come around to the idea of legal weed. pic.twitter.com/4MegZIgnv6

— Vox (@voxdotcom) April 20, 2022

Three Hundred Seventy-Six Officers Failed to Stop the Uvalde Massacre

Law enforcement in the United States is decentralized and fragmented.  Sometimes the system works well. During the Uvalde Massacre, it did not.

INVESTIGATIVE COMMITTEE ON THE ROBB ELEMENTARY SHOOTING TEXAS HOUSE OF REPRESENTATIVES, INTERIM REPORT 2022 

In total, 376 law enforcement officers responded to the tragedy at Robb Elementary School. The breakdown of responders, by agency, is as follows.

• 149 United States Border Patrol
• 91 Texas Department of Public Safety
• 25 Uvalde Police Department
• 16 San Antonio Police Department (SWAT)
• 16 Uvalde County Sheriff ’s Office
• 14 Department of Homeland Security – HIS
• 13 United States Marshals
• 8 Drug Enforcement Agency
• 7 Frio County Sheriff ’s Office
• 5 Kinney County Sheriff ’s Office
• 5 Uvalde Consolidated Independent School District
• 4 Dilley Police Department
• 4 Zavala County Sheriff ’s Office
• 3 Medina County Sheriff ’s Office
• 3 Sabinal Police Department
• 2 City of Uvalde Fire Marshals
• 2 Pearsall Police Department
• 2 Texas Parks and Wildlife
• 2 Uvalde County Constables
• 2 Val Verde County Sheriff ’s Office
• 1 Frio County Constables
• 1 Southwest Texas Junior College
• 1 Zavala County Constables 

Public Opinion and Federalism

 Frank Newport at Gallup:

There is some evidence speaking to Americans' preference for state versus federal control of government. In 2016, Gallup asked Americans, "Which theory of government do you favor: concentration of power in the state government or concentration of power in the federal government?" This was an update of a question included in one of Gallup's earliest surveys in 1936. At that point, in the middle of the Great Depression and President Franklin Roosevelt's massive mobilization of the federal government in the New Deal program, 56% of those interviewed favored the federal government approach. By the time Gallup asked the question again in 1981, in Ronald Reagan's first year in office, the public had flipped, favoring the state power alternative by 56% to 28%. The most recent results from 2016 showed a similar response, with 55% choosing the state government alternative and 37% choosing the federal government.

Political identity is highly related to preferences for state versus federal power. Remarkably, this partisan difference has persisted over the past eight decades. In 1936, 72% of Democrats favored the federal government theory of government, compared with 35% of Republicans. In 2016, 80 years later, 62% of Democrats favored the federal government, compared with 17% of Republicans.

More generally, a good deal of data show that the American public is more confident in their state government than in the federal government. This reflects the truism that Americans are, in general, more positive about government the more local it is. State governments routinely inspire more confidence than the federal government. And local governments inspire more confidence than state governments. As a September 2021 Deloitte Insights review pointed out, "Distant government tends to be distrusted government."

Gallup's most recent Governance poll, conducted in September 2021, showed that 37% of Americans have a great deal or fair amount of confidence in the legislative branch of government, 44% of Americans have confidence in the executive branch and 54% have confidence in the judicial branch. Americans' confidence in their state government is at the 57% level (a great deal or fair amount) and faith in local government is at 66%.

A Pew Research survey conducted April 25-May 1 of this year showed similarly that 32% of Americans have a favorable opinion of the "federal government in Washington," 54% have a favorable opinion of "your state government" and 66% a favorable opinion of "your local government." Last August, as another example, a Gallup survey showed that Americans gave the federal government the lowest positive image rating of any of 25 business and industry sectors tested.

In summary, we have a situation as far as public opinion is concerned in which Americans have for decades been more positive about their state government than the federal government, in which Americans hold the federal government in very low regard, and in which, when asked, Americans appear to tilt toward the idea that states should have more power than the federal government.

Abortion and Divergence

Megan Messerly at Politico:

Abortion policy is in the hands of the states following the Supreme Court’s Friday decision to overturn Roe v. Wade.

But it could take months for all the legal maneuvering to be completed and for the nation to have a more definitive picture over where abortion is legal, said Greer Donley, a professor specializing in reproductive health care at the University of Pittsburgh Law School... Only three states — South Dakota, Louisiana and Kentucky — have laws that immediately ban most abortions.

Most states with so-called trigger laws require the attorney general, governor or legislature to certify that the court’s opinion does, indeed, overturn Roe, include a delay of up to 30 days before they take effect, or both.

In other states, court action will likely be necessary to determine whether states’ pre-Roe abortion bans can take effect or enjoined laws restricting access to the procedure can be lifted, a process legal experts anticipate could take weeks to months. That means abortion will remain legal, at least in the short term, in places such as Ohio.

 Ronald Brownstein at The Atlantic:

The increasing divergence—and antagonism—between the red nation and the blue nation is a defining characteristic of 21st-century America. That’s a reversal from the middle decades of the 20th century, when the basic trend was toward greater convergence.

One element of that convergence came through what legal scholars call the “rights revolution.” That was the succession of actions from Congress and the Supreme Court, mostly beginning in the 1960s, that strengthened the floor of nationwide rights and reduced the ability of states to curtail those rights. (Key moments in that revolution included the passage of the Civil Rights and Voting Rights Acts and the Supreme Court decisions striking down state bans on contraception, interracial marriage, abortion, and, much later, prohibitions against same-sex intimate relations and marriage.)

Simultaneously, the regional differences were moderated by waves of national investment, including the New Deal spending on rural electrification, the Tennessee Valley Authority, agricultural price supports, and Social Security during the 1930s, and the Great Society programs that provided federal aid for K–12 schools and higher education, as well as Medicare and Medicaid.

The impact of these investments (as well as massive defense spending across both periods) on states that had historically spent little on public services and economic development helped steadily narrow the gap in per capita income between the states of the old Confederacy and the rest of the country from the 1930s until about 1980. That progress, though, stopped after 1980, and the gap remained roughly unchanged for the next three decades. Since about 2008, [Michael] Podhorzer calculates, the southern states at the heart of the red nation have again fallen further behind the blue nation in per capita income

Juneteenth 2022

Maria Cramer at NYT:

Last June, President Biden made Juneteenth a federal holiday, proclaiming it as a day for all Americans to commemorate the end of slavery.

One year later, only 18 states have passed legislation that would provide funding to let state employees observe the day as a paid state holiday, according to the Congressional Research Service.

Opponents of bills that would create funding for the permanent holiday have complained of the costs associated with giving workers another paid day off. Some have said that not enough people know about the holiday to make the effort worthwhile.

For supporters, such arguments are painful to hear, especially as more Americans said they were familiar with Juneteenth. In June 2022, nearly 60 percent of Americans said they knew about the holiday, compared with 37 percent in May 2021, according to a Gallup poll.

“This is something that Black folk deserve and it was like we had to almost prove ourselves to get them to agree,” said Anthony Nolan, a state representative in Connecticut, where legislators argued for hours earlier this year before passing legislation to fund the holiday.

Juneteenth commemorates the events of June 19, 1865, when Gordon Granger, a Union general, arrived in Galveston, Texas, to inform enslaved African Americans of their freedom after the Civil War had ended.

The day has been commemorated by Black Americans since the late 1800s. Though all 50 states have recognized Juneteenth by enacting some kind of proclamation celebrating it, its full adoption as an American holiday has yet to take root.

...

The Juneteenth commemoration marks the legal end of slavery in the United States, a hard-fought achievement of the Civil War. General Granger’s announcement in 1865 put into effect the Emancipation Proclamation, which had been issued more than two years earlier by President Abraham Lincoln, on Jan. 1, 1863.

Vaccine Mandate for National Guard

Jordan Williams at The Hill:

An Oklahoma federal judge on Tuesday denied an attempt from the state to block the Department of Defense’s coronavirus vaccine mandate for National Guard members.

In a 29-page ruling, U.S. District Judge Stephen Friot denied a motion from Oklahoma Gov. Kevin Stitt (R) and Attorney General John O’Connor to preliminarily enjoin the mandate, saying the plaintiffs’ claims were without merit.

“The court is required to decide this case on the basis of federal law, not common sense. But, either way, the result would be the same,” Friot wrote. “The claims asserted by the Governor and his co-plaintiffs are without merit.”

From the ruling:

The constitutional allocation of responsibility for Guard matters has been fleshed out by Congress. The beginning point, understandably relied upon by the defendants, is 32 U.S.C. § 110: “The President shall prescribe regulations, and issue orders, necessary to organize, discipline, and govern the National Guard.” In turn, the Service Secretaries (as relevant here, the Secretary of the Army and the Secretary of the Air Force) are empowered to “prescribe such regulations as the Secretary considers necessary to carry out provisions of law relating to the reserve components under the Secretary’s jurisdiction.” 10 U.S.C. § 10202(a).

Apropos of the constitutional grant of power to Congress to provide for “organizing” and “disciplining” the Militia, Congress has directed that “[t]he discipline, including training, of the Army National Guard shall conform to that of the Army. The discipline, including training, of the Air National Guard shall conform to that of the Air Force.” 32 U.S.C. § 501. If the Guard fails to comply with federal standards, the President is empowered to cut off its funding: “If, within a time fixed by the President, a State fails to comply with a requirement of this title, or a regulation prescribed under this title, the National Guard of that State is barred, in whole or in part, as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.” 32 U.S.C. § 108. If a state should find federal standards governing the National Guard to be too tight a fit, the state is free to establish (and pay for) its own, independent version. 32 U.S.C. § 109(c). Oklahoma has not done so.

The upshot of all this is that, however wide-ranging the command authority of the Governor and the Adjutant General may be within the four corners of their own state (and the court does not presume to define the extent of that authority other than as is strictly necessary for present purposes), it is unmistakably clear that the intent of Congress, as expressed in the text of its enactments, is that the Guard and its members will at all events be prepared, conformably to federal military standards, Case 5:21-cv-01136-F Document 41 Filed 12/28/21 Page 19 of 29 20 to be ordered into federal service, deploying alongside members of the active duty Army and Air Force, on little or no notice, anywhere in the world–which is exactly what the Oklahoma Guard and its members have done, with great distinction, on dozens of occasions

Justice Thomas on Federalism and the Inconsistencies of Marijuana Law

 Cite as: 594 U. S. ____ (2021) 1 Statement of THOMAS, J. SUPREME COURT OF THE UNITED STATES STANDING AKIMBO, LLC, ET AL., v. UNITED STATES ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 20–645. Decided June 28, 2021

Sixteen years ago, this Court held that Congress’ power to regulate interstate commerce authorized it “to prohibit the local cultivation and use of marijuana.” Gonzales v. Raich, 545 U. S. 1, 5 (2005). The reason, the Court explained, was that Congress had “enacted comprehensive legislation to regulate the interstate market in a fungible commodity” and that “exemption[s]” for local use could undermine this “comprehensive” regime. Id., at 22–29. The Court stressed that Congress had decided “to prohibit entirely the possession or use of [marijuana]” and had “designate[d] marijuana as contraband for any purpose.” Id., at 24–27 (first emphasis added). Prohibiting any intrastate use was thus, according to the Court, “‘necessary and proper’” to avoid a “gaping hole” in Congress’ “closed regulatory system.” Id., at 13, 22 (citing U. S. Const., Art. I, §8).

Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary

Thomas notes that the federal government outlaws marijuana even though 36 states have legalized it for medical use and 18 allow recreational use.

Yet, as petitioners recently discovered, legality understate law and the absence of federal criminal enforcement do not ensure equal treatment. At issue here is a provision of the Tax Code that allows most businesses to calculate their taxable income by subtracting from their gross revenue the cost of goods sold and other ordinary and necessary business expenses, such as rent and employee salaries. See 26 U. S. C. §162(a); 26 CFR. 1.61–3(a) (2020). But because of a public-policy provision in the Tax Code, companies that deal in controlled substances prohibited by federal law may subtract only the cost of goods sold, not the other ordinary and necessary business expenses. See 26 U. S. C. §280E. Under this rule, a business that is still in the red after it pays its workers and keeps the lights on might nonetheless owe substantial federal income tax. 

...

This disjuncture between the Government’s recent laissez-faire policies on marijuana and the actual operation of specific laws is not limited to the tax context. Many marijuana-related businesses operate entirely in cash because federal law prohibits certain financial institutions from knowingly accepting deposits from or providing other bank services to businesses that violate federal law. Black & Galeazzi, Cannabis Banking: Proceed With Caution, American Bar Assn., Feb. 6, 2020. Cash-based operations are understandably enticing to burglars and robbers. But, if marijuana-related businesses, in recognition of this, hire armed guards for protection, the owners and the guards might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a “drug trafficking crime.” 18 U. S. C. §924(c)(1)(A). A marijuana user similarly can find himself a federal felon if he just possesses a firearm. §922(g)(3). Or petitioners and similar businesses may find themselves on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act. See, e.g., Safe Streets Alliance v. Hickenlooper, 859 F. 3d 865, 876– 877 (CA10 2017) (permitting such a suit to proceed).

 

US Policing: Decentralized and Mostly Small-Scale

At WP, Mark Berman reports that police reform is tough because policing is decentralized and most departments are small.

According to a federal survey in 2016, there are more than 12,200 local police departments nationwide, along with another 3,000 sheriff’s offices. And most of those don’t look like the New York Police Department, which employs more officers than Brooklyn Center, in suburban Minneapolis, has residents.

Nearly half of all local police departments have fewer than 10 officers. Three in 4 of the departments have no more than two dozen officers. And 9 in 10 employ fewer than 50 sworn officers. Brooklyn Center, which has 43 officers, and Windsor, which reported a seven-member force, fit comfortably in that majority.

Experts say that while smaller departments have their benefits, including being able to adapt to their communities and hire officers with local ties, these agencies also are typically able to avoid the accountability being sought as part of the national movement to restructure and improve policing. These departments’ often limited resources and the decentralized structure of American law enforcement complicate efforts to mandate widespread training and policy changes, experts say.

“You want to change American policing, figure out how to get to … the departments of 50 officers or less,” said Chuck Wexler, executive director of the Police Executive Research Forum, a Washington-based group that works with police departments. “How do you reach them? How do you get to them? … That’s what the American people keep wondering.”

Statehood

 Matt Glassman at Legislative Procedure:

The short answer is that Congress passes a federal law. The admission of new states is governed by Article IV, section 3 of the Constitution, which reads:

“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

Although various detailed plans for structuring the statehood process were considered both before the adoption of the Constitution and as revisions to it in the 19th century, the Framers went with a plan that did not constitutionally constrain either the size of new states or set a population threshold required for admission. Nor did they require any supermajority procedures. In effect, they made it surprisingly easy to add new states. Creating a new state is arguably the only irreversible process in the entire Constitution. Yet, it requires no more than federal law to achieve it.

And it was immediately and always controversial. Throughout the 19th century, statehood played a prominent role in destabilizing American politics. New states' ability to alter the balance of political power in the federal government led to near-constant political jockeying over state admissions, as partisans sought to expand the Union as a mechanism of consolidating political power. Frustration with the process led to routine calls for its reform, especially for the imposition of size and population threshold restrictions on Congress's ability to add states.

Federalism and Minimum Wages

 Drew DeSilver at Pew:

Prospects for raising the federal minimum wage, which has stood at $7.25 an hour since 2009, appear to have stalled out yet again, despite broad public support for the idea. In truth, though, for the past several years most of the real action on minimum wages has been in states, counties and cities, not on Capitol Hill. Just this past November, for example, Florida voters approved Amendment 2, which will gradually raise the state’s minimum until it reaches $15 in 2026.

As a practical matter, the $7.25 federal minimum wage is actually used in just 21 states, which collectively account for about 40% of all U.S. wage and salary workers – roughly 56.5 million people – according to our analysis of state minimum-wage laws and federal employment data. In the 29 other states and the District of Columbia, minimum wages are higher – ranging from $8.65 in Florida to $15 in D.C.

In eight of the states with higher-than-federal minimum wages, some cities and counties have adopted local ordinances that provide for even higher rates than their state’s minimum, accelerate schedules for future increases, or both. (None of the states where the $7.25 federal minimum prevails have higher local minimums.) Our research found at least 46 such cities and counties – most of them (36) in the Los Angeles and San Francisco Bay areas of California. The highest local minimum wage in the country, $16.84, is in Emeryville, a suburb of San Francisco.

Vaccine Distribution Problems

 

Margaret Harding McGill and Kim Hart at Axios:

[Last year] the federal government focused on vaccine production, but left it to the states to figure out how to actually get shots in arms.

• Local governments — dealing with significant budget and staff shortages — generally lack digital teams that can quickly stand up technology infrastructure.
• Tech-savvy public interest groups have offered assistance, but the services they can provide — and the government's willingness to accept them — has been limited.
• Government IT procurement processes failed to anticipate the needs for vaccine distribution or effectively vet vendors, leaving a fractured system.

.The big picture: "Actually delivering services means being tech-savvy today. And that piece is missing," Hana Schank, director of strategy for Public Interest Technology at New America, told Axios.

Early on in the pandemic, it was clear that vaccines would eventually arrive and that technology infrastructure would be needed for mass distribution. But local jurisdictions were preoccupied with contact tracing and securing personal protective equipment — two other areas where tech solutions fell short.

• "Contact tracing was the first big massive red flag for vaccines," said DJ Patil, former U.S. chief data scientist who is now Chief Technology Officer of Devoted Health, and worked directly on state COVID-19 response efforts in California. "People didn't see the opportunity that was coming and the chance to get it right."
• "You can have unbelievable amounts of technologists willing to show up, but we still don't know how to plug them in" to government processes, he said. "So they go with a vendor instead."

 Even when governments turned to tried-and-true vendors, problems arose.

...

Reality check: County health departments are often responsible for distributing vaccines — but their budgets have been gutted during the pandemic.In a survey conducted last June by the National Association of County and City Health Departments, more than 89% of local health departments said general COVID-19 response efforts had diverted resources away from immunizations.

The bottom line: Obtaining a vaccine will get easier, but that's mainly because vaccine supplies will continue to increase.

Texas v. Califoria, California v. Texas

Our colleague Kenneth Miller has a new book titled Texas vs. California (Oxford University Press, 2020)

Texas and California are the leaders of Red and Blue America. As the nation has polarized, its most populous and economically powerful states have taken charge of the opposing camps. These states now advance sharply contrasting political and policy agendas and view themselves as competitors for control of the nation's future. Kenneth P. Miller provides a detailed account of the rivalry's emergence, present state, and possible future. First, he explores why, despite their many similarities, the two states have become so deeply divided. As he shows, they experienced critical differences in their origins and in their later demographic, economic, cultural, and political development. Second, he describes how Texas and California have constructed opposing, comprehensive policy models--one conservative, the other progressive. Miller highlights the states' contrasting policies in five areas--tax, labor, energy and environment, poverty, and social issues--and also shows how Texas and California have led the red and blue state blocs in seeking to influence federal policy in these areas. The book concludes by assessing two models' strengths, vulnerabilities, and future prospects. The rivalry between the two states will likely continue for the foreseeable future, because California will surely stay blue and Texas will likely remain red. The challenge for the two states, and for the nation as a whole, is to view the competition in a positive light and turn it to productive ends. Exploring one of the primary rifts in American politics, Texas vs. California sheds light on virtually every aspect of the country's political system.

Fittingly, the two states are at odds in an important upcoming Supreme Court case. 

Oyez sums California v. Texas:

In 2012, the U.S. Supreme Court upheld the individual mandate of the Affordable Care Act (ACA) against a constitutional challenge by characterizing the penalty for not buying health insurance as a tax, which Congress has the power to impose. In 2017, the Republican-controlled Congress enacted an amendment to the ACA that set the penalty for not buying health insurance to zero, but it left the rest of the ACA in place. Texas and several other states and individuals filed a lawsuit in federal court challenging the individual mandate again, arguing that because the penalty was zero, it can no longer be characterized as a tax and is therefore unconstitutional. California and several other states joined the lawsuit to defend the individual mandate.

The federal district court held that the individual mandate is now unconstitutional and that as a result, the entire ACA is invalidated because the individual mandate cannot be “severed” from the rest of the Act. The U.S. Court of Appeals for the Fifth Circuit upheld the district court’s conclusion but remanded the case for reconsideration of whether any part of the ACA survives in the absence of the individual mandate. The Supreme Court granted California’s petition for review, as well as Texas’s cross-petition for review.

Voting by the Dead (Seriously)

As of this morning, 89.6 million Americans had already voted.

 Wendy Underhill at NCSL:

What happens when an eligible voter casts an absentee ballot and then passes away before Election Day? This question comes up more and more, as absentee/mail voting, and even early in-person voting, gain in popularity.

Do these pre-Election Day votes count? Like everything else related to elections, the answer varies from state to state. By our count, statutes in at least 12 states (Arkansas, Connecticut, Idaho, Florida, Louisiana, Maryland, Massachusets, Minnesota, Montana, New Mexico, North Dakota and Tennessee) direct election officials to count these ballots.

Massachusetts has done so most recently, with the enactment of HB 4820 in July: “The absentee or early ballot of any voter who was eligible to vote at the time the ballot was cast shall not be deemed invalid solely because the voter became ineligible to vote by reason by death after casting the ballot.”

Again by our count, 15 states go the other way and are clear that these ballots are not to be counted: Colorado, Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky (by an AG’s opinion, 77-667), Mississippi, Missouri, New Hampshire, New Jersey, Pennsylvania, South Dakota, Virginia (again by an AG’s opinion, 10-104) and Wisconsin.

Regardless of the law, it is hard to retrieve a ballot from someone who has died between casting it and Election Day. Once the absentee ballot has been verified and the ballot is removed from the envelope for counting, the ballot can’t be retraced to the voter—it’s a secret.

Checks and Balances in Action

Madison in Federalist 51:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

During the Obama years, Republican state officials sued to stop administration policies.  Democratic officials  have been doing the same since 2017.

 An editorial in The Daily Sentinel (Grand Junction, CO):

 Montana’s Democratic Gov. Steve Bullock hit the nail on the head with a tweet following a federal judge’s ruling Friday that William Perry Pendley has been serving unlawfully as the acting director of the Bureau of Land Management.

“Today’s ruling is a win for the Constitution, the rule of law, and our public lands,” Bullock wrote.

...

U.S. District Judge Brian Morris said Pendley has served as the acting director of the BLM unlawfully for 424 days without being confirmed to the post by the U.S. Senate.

Pendley’s “ascent to Acting BLM Director did not follow any of the permissible paths set forth by the U.S. Constitution or the (Federal Vacancies Reform Act),” Morris wrote in his opinion. “Pendley has not been nominated by the President and has not been confirmed by the Senate to serve as BLM Director.”

...

“Under Federal Defendants’ theory, a President could ignore their constitutional appointment responsibility indefinitely and instead delegate authority directly or through Cabinet Secretaries to unconfirmed appointed officials. Such an arrangement could last for an entire presidential administration. In fact, the case before the Court presents that scenario.”

The administration’s theory “flies in the face of the constitutional design.”

An Interior spokesman told CNN the administration will appeal immediately. In the meantime, Morris gave both sides of the case 10 days to file briefs about which of Pendley’s order must be vacated.

We all intuitively know that someone exercising the power of BLM director without Senate confirmation doesn’t square with the law.

Witnessing in action the checks and balances design of our Constitution is a thing of beauty.