The Constitution and Election Law

Previous posts have discussed authoritarian moves by the executive branch.

U.S. District Judge Indira Talwani, found the new Postal Service rule on mail-in ballots is likely unlawful and unconstitutional,

The Elections Clause of the Constitution provides: 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators. U.S. CONST. art. I, § 4, cl. 1. 

“[T]hese comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, [and] counting of votes[.]” Smiley v. Holm, 285 U.S. 355, 366 (1932). “In practice, the Clause functions as ‘a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.’” Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 9 (2013) (quoting Foster v. Love, 522 U.S. 67, 69 (1997)). “Because the power the Elections Clause confers is none other than the power to pre-empt, the reasonable assumption is that the statutory text accurately communicates the scope of Congress’s preemptive intent. . . . Unlike the States’ historic police powers, the States’ role in regulating congressional elections . . . has always existed subject to the express qualification that it terminates according to federal law.” Id. at 1415 (citation modified).  

 Accordingly, as to the time, place, and manner of federal elections, the Elections Clause “grants Congress ‘the power to override state regulations’ by establishing uniform rules for federal elections, binding on the States.” Foster, 522 U.S. at 69 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832–33 (1995)).13  

...

The Constitution does not grant the President any specific powers over elections.14 Broadly, the Constitution vests the President with “executive Power” and commands him to “take Care that the Laws be faithfully executed[.]” U.S. CONST. art. II, §§ 1, 3. The President “plays no direct role in the process” of appointing electors, “nor does he have authority to control the state officials who do.” Trump v. United States, 603 U.S. 593, 627 (2024). As the Supreme Court has observed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Medellín v. Texas, 552 U.S. 491, 526–27 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)). 

Religion, Well-Being, and the State of the States

Many posts have discussed federalism.

The State of the States Report of the State of the Nation Project has valuable data on states.

 

The State of the Nation report ranked every state across 31 measures like infant mortality, murder rate, voter turnout, etc.

Lower ranks are better.

I plotted that against the share of each state that is highly religious.

The most religious states had the worst ranks. pic.twitter.com/YdgQAvWzYT

— Ryan Burge 📊 (@ryanburge) June 7, 2026

No Absolute Immunity for Feds Who Break State Laws

Our chapter on federalism includes an extensive discussion of crime.

Devan Cole at CNN:

Vice President JD Vance’s claim Thursday that an Immigration and Customs Enforcement officer who fatally shot Renee Nicole Good in Minneapolis is “protected by absolute immunity” drew immediate pushback from experts who said the legal landscape around a potential prosecution is far more complicated.

Speaking at the White House, Vance appeared to try to stymie any efforts by Minnesota prosecutors to pursue a criminal case against the agent.

“The precedent here is very simple. You have a federal law enforcement official engaging in federal law enforcement action – that’s a federal issue. That guy is protected by absolute immunity. He was doing his job,” Vance said, echoing others in the Trump administration. “I’ve never seen anything like that. It would get tossed out by a judge.”

That assessment was quickly met with skepticism by experts who said the vice president was overstating the law around immunity for federal officials. Vance’s comments come amid nationwide protests of ICE officials and criticism of the agency’s efforts to carry out a historic deportation campaign with little to no oversight.

Bryna Godar at Lawfare:

As a baseline, federal officials are not immune from prosecution for state crimes just because they committed the offense while on the job. Some state prosecutions of federal officials that have gone ahead include a manslaughter charge against a postal worker who hit and killed someone while delivering mail, murder charges against military members who shot and killed a man they believed was stealing copper fixtures, and murder charges against federal officers who killed a passenger when shooting their guns at a departing car they alleged was illegally transporting whiskey.

The Supreme Court has long emphasized that “[a]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment.” So when a federal officer—be it an ICE agent or a postal worker—violates a state criminal law, they can potentially face prosecution. This could include charges for trespass, breaking and entering, kidnapping, assault, manslaughter, murder, or a host of other state-law crimes.

What happens next is where things get complicated. Generally, federal officers will seek to move their case into federal court. They will claim that they are immune from prosecution under the Supremacy Clause, and a federal court will decide whether the state’s prosecution can proceed. If it does proceed, it will typically play out in federal—not state—court, though state or local officials will still prosecute the case. And if the trial ultimately leads to a conviction, that conviction will be for a state—not federal—crime. This is an important point in state-federal conflicts because the president’s pardon power extends only to federal crimes, not state crimes. (For a more thorough analysis of the procedural elements, see this Lawfare article.)

Breaking down the immunity piece, federal officials prosecuted for state crimes generally claim that they are immune from prosecution under the Constitution’s Supremacy Clause. The Supremacy Clause provides that federal law is “the supreme Law of the Land” and overrides state law when the two conflict. Courts have interpreted this provision to preclude state prosecutions when federal officials are reasonably carrying out lawful federal duties. For example, in the foundational case on Supremacy Clause immunity from 1890, the Supreme Court concluded that California could not prosecute a U.S. Marshal for murder where the marshal, who was assigned to protect a U.S. Supreme Court justice, shot and killed an attacker. In other examples, the U.S. Court of Appeals for the Tenth Circuit in 2006 affirmed dismissal of a Wyoming trespassing prosecution against federal wildlife officers who accidentally entered private land while collaring wolves, and a federal district court in the 1960s ordered the dismissal of disorderly conduct charges against a U.S. Marshal for his actions quelling a segregationist riot at the University of Mississippi.

The theory behind Supremacy Clause immunity, as explained in the 2006 Tenth Circuit wolf-collaring opinion authored by then-Judge Michael McConnell, is that, “while state criminal law provides an important check against abuse of power by federal officials, the supremacy of federal law precludes the use of state prosecutorial power to frustrate the legitimate and reasonable exercise of federal authority.”

To strike this balance, federal courts have adopted a two-part test for Supremacy Clause immunity: The federal official’s actions must have been (a) authorized by federal law and (b) “necessary and proper” in fulfilling the official’s federal duties. In other words, if an officer’s actions are unauthorized, unlawful, unnecessary, or improper, the state prosecution poses no Supremacy Clause problem because it is not undermining the implementation of federal law.

In practice, the contours of this two-part test are often contested. The U.S. Supreme Court has not weighed in on Supremacy Clause immunity in more than 100 years, so the doctrine has been developed largely in lower federal courts.

"I Feared for My Life, Officer"

  Many posts have discussed crime in the United States.

 Mark Maremont  and  Paul Overberg at WSJ:

It’s easier than ever to kill someone in America and get away with it.

In 30 states, it often requires only a claim you killed while protecting yourself or others.

While Americans have long been free to use deadly force to defend themselves at home, so-called stand-your-ground laws in those 30 states extend legal protections to public places and make it difficult for prosecutors to file homicide charges against anyone who says they killed in self-defense.

The number of legally sanctioned homicides by civilians in the 30 stand-your-ground states has risen substantially in recent years, The Wall Street Journal found in an analysis of data from the Federal Bureau of Investigation.

Justifiable homicides by civilians increased 59% from 2019 through 2024 in a large sample of cities and counties in those states, the Journal found, compared with a 16% rise in total homicides for the same locales.

Butt-legging Soars

 Alexander Hamilton wrote in Federalist 21:

It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, "in political arithmetic, two and two do not always make four .'' If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.

A release from Rutgers University:

New York City has the highest cigarette taxes in the nation, but Rutgers Health research indicates that many smokers illegally avoid them.

Most cigarette packs littered on city streets came from out-of-state sources or bore no tax stamps, according to a study that suggests widespread evasion of the city's steep tobacco taxes.

Researchers who collected 252 discarded cigarette packs from across the city's five boroughs found that only 16.6% bore the proper New York City tax stamp, down from 39.3% in 2011 and 23.7% in 2015 when other teams conducted the same experiment.

The findings, published in Tobacco Control, based on systematic collection from 30 census tracts in February 2024, offer a unique window into consumption patterns by using litter as a proxy for where smokers obtain cigarettes.

“It’s arbitrage,” said Kevin Schroth, a researcher at Rutgers Institute for Nicotine and Tobacco Studies and lead author of the study. “If something is cheaper in one place and more expensive in another, people will find ways to profit by purchasing in the cheap place and selling in the expensive one. And because we can compare our findings to prior work, we can see that it may be a growing problem for New York City’s tax collection. What’s interesting, though, is that despite this trend, New York City’s smoking rates are still declining. This might mean that part of a shrinking smoking population is very determined to get cheap, untaxed cigarettes.”

The research revealed a notable geographic shift in cigarette trafficking patterns. Georgia emerged as the primary source of illicit cigarettes, accounting for 27.8% of the littered packs and surpassing Virginia’s 20.6%. Packs with no tax stamps (which likely come from North Carolina or Indian reservations) comprised 20.2% of the sample, nearly doubling from 12.1% in 2015.

The study also highlighted the outsized role of Newport, a menthol brand that made up 43.3% of all collected packs. Some 89.9% of Newport packs lacked New York City tax stamps. This high percentage of menthol packs raises issues about smuggling’s impact on health equity, the researchers said. Menthol use is far higher among Black and Latino smokers than white smokers, and cheaper illicit menthols may make it more difficult for people to quit.

With state and city taxes totaling $6.85 per pack plus a $1.01 federal tax, cigarettes sold legally in New York City are among the highest taxes in the nation. By contrast, cigarettes face 37 cents in taxes in Georgia and 60 cents in Virginia, allowing smugglers and their customers to split more than $6 in tax savings on every pack. (New Jersey’s tax of $3 per pack might make it a destination for individual city smokers who want to save money without going far, but it appears to be too high for smugglers.) North Carolina imposes a 45-cent tax and does not require tax stamps. Indian reservations do not impose taxes or require stamps.

Schroth, who previously worked with the New York City Health Department on cigarette tax enforcement, described a retail system where legitimate and illicit cigarettes operate side by side. Some store owners hide untaxed cigarettes in secret compartments beneath counters or above drop ceilings, he said, while customers use code phrases like "special price" to signal their interest in tax-free products.

Local agencies conduct store sweeps, but cracking a supply chain that stretches down Interstate 95 is difficult.

Schroth said the most promising fix lies upstream. He pointed to a federal “track and trace” system Congress authorized in 2009 that would assign unique identifiers to packs and record transfers from manufacturer to distributor to retailer.

“With track and trace, you could pick up a littered pack in New York and see that it moved through a specific warehouse and into a specific store in Georgia,” Schroth said. “That lets you focus enforcement on the points feeding the illicit market. It could also reveal sources of unstamped packs. The FDA would have to follow its rule-making process to execute this Congressional mandate.”

The persistence of illicit trade creates a paradox for public health officials: While cigarette taxes are designed both to generate revenue and discourage smoking, the study's findings suggest they are high enough that a significant portion of the city's estimated 565,000 adult smokers may be circumventing the price increases meant to push them toward quitting.

Still, smoking rates in New York City have continued to decline even as tax evasion appears to have increased. Adult smoking fell from 14.3% in 2015 to 9.7% in 2022, below both the national average of 11.6% and the rest of New York State at 12.3%.

The researchers acknowledged limitations in their methodology, noting uncertainty about whether people who litter cigarette packs are more likely to buy smuggled cigarettes than others. However, they argued that comparing litter samples over time using identical methods provides valuable insights into changing patterns of tax compliance. rule-making

The Secret Service Screwed Up

 One year ago, a shooter nearly killed Trump.  The Senate Homeland Security Committee has a report on how badly the Secret Service screwed up:

1. USSS denied multiple requests for additional staff, assets, and resources to protect President Trump during the campaign.
2. USSS did not fire a single person involved in the planning and execution of the Butler rally. USSS formally disciplined only six personnel, some of whom received their disciplinary decision as recently as July 2025. In two instances, the final disciplinary decision was a reduced punishment from what was originally recommended.
3. Former Director Kimberly Cheatle falsely testified to Congress that no USSS asset requests were denied for the Butler rally.
4. Despite USSS leadership receiving an intelligence briefing regarding the protectee and authorizing counter-snipers at all of President Trump’s outdoor rallies a day prior, counter-snipers were not present at the July 9 Doral campaign rally.
5. There were ill-defined responsibilities for USSS agents serving in advance roles.
6. USSS agents failed to communicate crucial information regarding the suspicious individual to President Trump’s shift detail, which had the ability to prevent him from taking the stage.
7. Pertinent threat intelligence related to the protectee was not shared with USSS agents in charge of security at the Butler, Pennsylvania, rally.
8. There was a severe lack of coordination and communication between USSS and state and local law enforcement from the advance process through the event.

What ICE Can and Cannot Do

 Many posts have discussed immigration.

Russell Contreras at Axios:

ICE is tasked with enforcing the nation's immigration laws anywhere within the nation's interior (the Border Patrol's jurisdiction is 100 miles into the interior, from any land or maritime border).

• ICE agents can arrest anyone they suspect of being in the U.S. illegally. They can arrest U.S. citizens only if they see them "breaking laws."
• To conduct raids or operations targeting suspects, ICE agents only need an "administrative warrant" — a warrant signed by a supervisor, not a judge, Rebekah Wolf, director of the American Immigration Council's Immigration Justice Campaign, tells Axios.

ICE agents can conceal their identities and refuse any request to disclose their personal information.

• This has led to conflicts between people ICE agents have encountered, as well as allegations by Trump's administration that protesters have tried to dox agents involved in raids.
• Wolf said officers in other agencies are required to identify themselves and provide badge numbers to prevent impersonators. ICE has no such requirement, and there have been reports of ICE impersonators harassing people, creating more chaos and uncertainty in some communities.

ICE doesn't have to collect evidence for cases and has few parameters around its use of force.

• Because it's such a young agency, it hasn't faced many lawsuits and court challenges to its use-of-force policies, unlike other federal agencies such as the FBI, the Forest Service or the Bureau of Indian Affairs.
• That's resulted in few directives aimed at limiting ICE agents' tactics.
• ICE units can conduct pre-dawn raids, unannounced entries (with judicial or administrative warrants), and surveillance without many of the public accountability rules that serve as checks on local authorities.

ICE agents can't enter a private home unless they have a judicial warrant.

• They still must adhere to the Constitution regarding the search and seizure limits protecting U.S. citizens.
• Although ICE isn't supposed to place U.S. citizens in immigration detention, Cárdenas says its agents have been detaining U.S.-born Latinos and dismissing their proof of citizenship as fake before eventually letting them go.
• This has led to allegations of racial profiling.
• ICE did not immediately respond for comment on these episodes.

ICE also can't force a local law enforcement agency to join an operation, but police are obligated to keep order if protesters surround and ICE operation.

 

Federalism and EVs

Three years after President Biden signed the bipartisan infrastructure law, it has resulted in only 58 ERV charging stations. Marc J. Dunkelman at WP:

[By] the time of the chaotic 1968 Democratic National Convention in Chicago, progressives had soured on the establishment’s excesses. Men such as Lyndon B. Johnson and Robert McNamara had steered the nation into an unwinnable war in Vietnam. Local power brokers such as Richard J. Daley and Robert Moses decimated whole neighborhoods in the name of urban renewal.

And so, to protect ordinary people, reformers erected mechanisms to dilute public authority. Slowly, over the course of the next half-century, bureaucracies they deemed too powerful became, in effect, impotent.

By the point the Biden administration turned its attention to expanding the nation’s EV charging infrastructure, the approach that FDR might have taken during the 1930s — just hiring people to do it — was entirely off the table. Such a plan would immediately be labeled a “socialist” enterprise that posed a threat to private companies.
...

Instead, the Biden administration was left to rely in large part on the system that governs 90 percent of federal transportation spending: distributing the money to the states. This pattern, established during the Eisenhower administration, works by sending federal dollars to the state highway departments that maintain the nation’s infrastructure. Each state figures out how to implement the law, which in this case called for high-speed chargers at least every 50 miles on major highways.

The states, of course, had no experience with EV technology. And so it was up to the federal government to help them navigate their new responsibilities. The Transportation and Energy departments quickly established a “joint office” to guide the work. Within weeks of the infrastructure law’s signing — lightning speed, by modern standards — the administration had published a draft rule establishing the requirements:

• The chargers would have to work on all electric vehicles (as opposed to just Teslas).
• They would have to be reliable 97 percent of the time (so drivers wouldn’t encounter broken stalls).
• They would have to be located in remote areas where there would otherwise be gaps (as opposed to the busy corridors where private companies might choose to place them without subsidy).

Over the course of 2022, the government incorporated public feedback into the rule, as mandated by the 1946 Administrative Procedure Act. In the nearly 80 years since its passage, the APA has become the Magna Carta of bureaucratic governance, ensuring that agencies are fair and transparent. The attendant checks and balances, designed explicitly to prevent the bureaucracy from steamrolling opponents, almost inevitably slow things down.

State Push Against Incumbent Administration

Many posts have discussed federalism.

 Bruce Mehlman:

States Increasingly Battle Washington, Further Squeezing Business. Regardless of whether activist pressure returns, #resistance will come from blue states. U.S. states are increasingly all red or all blue… 38 of 50 have complete one party control in 2025. Ambitious governors and attorney generals fight Washington whenever their party does not hold the White House via competing policy initiatives or lawsuits, often pressuring businesses to “take a side” and/or develop different products / services for red America vs blue America.

 

A Failure to Communicate

Law enforcement in the United States is decentralized and fragmented.  Sometimes the system works well.  Sometimes lack of coordination can be dangerous.

Mike Allen at Axios:

The Secret Service and local law enforcement often were not on the same page during the July 13 rally where a would-be assassin fired at former President Trump, the agency said today. In a summary of its internal investigation into the assassination attempt, the Secret Service said those communications breakdowns — both before and during the rally — are the reason the attacker was able to get close enough to fire at Trump.

 Some local agencies were apparently coordinating with one another more than with the Secret Service, the report says, which led to a lack of follow-up even after some officials questioned the way snipers were positioned. Secret Service agents "were not apprised of how focused state and local law enforcement were in the minutes leading up to the attack on locating the suspicious subject". Otherwise, they might have been able to get Trump off the stage before shots were fired.

Read the Secret Service summary.

Spoiled Sunshine: Perceptions of California

 A Leger survey for the LAT finds that 29% of Americans -- and 48% of Republicans think that California is "not really American." Other findings:

• Over one-third of U.S. residents believe that California is a model other states should avoid (39%), compared to 15% who think it should be copied and nearly half (46%) who believe it is a little bit of both. Democratic voters (25%) are more likely to say it is a model to copy, whereas Republican voters (66%) are more inclined to think the opposite.
• 87% of U.S. residents agree that the state of California is too expensive (cost of living), 76% agree that it is diverse, and 65% consider it a good place to visit. Nearly half (52%) believe it is unsafe, and only one-third (37%) think it is a good place to raise a family.
• 23% of U.S. residents not living in California would consider moving there, as opposed to 77% who would not. The main reasons for considering a move are employment opportunities (26%) and the warmer/mild climate (23%). The main reasons against moving, aside from a general reluctance to move (38%), are that it doesn’t correspond to their way of living (20%) and disliking the politics there (19%). Republican voters (30%) are more likely to reject moving there due to the politics.
• More than half of U.S. residents (58%) think that California has a positive impact on the United States, while 42% think it has a negative impact. Democratic voters are more likely to view California's impact as positive (87% compared to 33% among Republicans).
• Generally, Republican voters are significantly more likely to have a negative opinion or rate the tested items more negatively compared to Democratic voters, who have a more positive perception of the state of California.

The United States as Singular and Plural

LEE MM, ZHANG N, HERCHENRÖDER T. From Pluribus to Unum? The Civil War and Imagined Sovereignty in Nineteenth-Century America. American Political Science Review. 2024;118(1):127-143. doi:10.1017/S0003055423000096

Abstract:

Contestation over the structure and location of final sovereign authority—the right to make and enforce binding rules—occupies a central role in political development. Historically, war often settled these debates and institutionalized the victor’s vision of sovereignty. Yet sovereign authority requires more than institutions; it ultimately rests on the recognition of the governed. How does war shape imagined sovereignty? We explore the effect of warfare in the United States, where the debate over two competing visions of sovereignty erupted into the American Civil War. We exploit the grammatical shift in the “United States” from a plural to a singular noun as a measure of imagined sovereignty, drawing upon two large textual corpuses: newspapers (1800–99) and congressional speeches (1851–99). We demonstrate that war shapes imagined sovereignty, but for the North only. Our results further suggest that Northern Republicans played an important role as ideational entrepreneurs in bringing about this shift.

From the article:

Our measurement strategy leverages a grammatical change in the civic language in which the term “United States” shifted from a plural to a singular noun. Whereas at the beginning of the nineteenth-century Americans said “the United States are,” by the end of the century they were much more likely to say “the United States is.” We treat plural/singular usage as a proxy for the popular imagination of sovereignty. Specifically, we take plural usage as indicating that Americans view the United States as having multiple sovereignties embodied in the several states, and singular usage as indicating that Americans conceive of the United States as possessing a single national sovereignty.

We are not the first scholars to attribute such meaning to the usage of the plural and singular forms of the United States. For example, Civil War historian Shelby Foote linked sovereignty and speech in his observation that “Before the war, it was said ‘the United States are.’ Grammatically, it was spoken that way and thought of as a collection of independent states” (quoted in Ward1990, 273). Similarly, McPherson notes that the Civil War “marked a transition of the United States to a singular noun” and that “the ‘Union’ also became the nation” (McPherson1988, 859).

 

Immigration and the Supremacy Clause

Many posts have discussed immigration.

 Ian Millhiser at Vox:

Last Monday, the Supreme Court made its first foray into a longstanding conflict over who is in charge of the United States-Mexico border: the United States government or Texas’s Republican Gov. Greg Abbott.

In a 5–4 decision, the Court temporarily permitted federal officials to cut razor wire barriers set up by the Texas government, which had prevented US Border Patrol agents from entering an area where immigrants sometimes cross into the United States. This decision, moreover, came in one of several disputes between Texas and the United States over border policy — with many GOP-led states now backing Abbott.

Under existing law, it is well established that the federal government is in charge of nearly all questions of immigration policy and may override state immigration policies that conflict with its goals. As the Supreme Court said in Arizona v. United States (2012), “[I]t is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

But it is unclear whether the current Supreme Court, with its 6–3 Republican supermajority, will honor this longstanding balance of power between the national government and the states, which has been in place at least as far back as the Court’s 1941 decision in Hines v. Davidowitz.

Deadly Failure in Uvalde

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

 Justice Department, Critical Incident Review: Active Shooter at Robb Elementary School

The most significant failure was that responding officers should have immediately recognized the incident as an active shooter situation, using the resources and equipment that were sufficient to push forward immediately and continuously toward the threat until entry was made into classrooms 111/112 and the threat was eliminated. Since the tragic shooting at Columbine High School in 1999, a fundamental precept in active shooter response and the generally accepted practice is that the first priority must be to immediately neutralize the subject; everything else, including officer safety, is subordinate to that objective. Accordingly, when a subject has already shot numerous victims and is in a room with additional victims, efforts first must be dedicated to making entry into the room, stopping the subject, and rendering aid to victims. These efforts must be undertaken regardless of the equipment and personnel available to those first on the scene. Critical Incident Review: Active Shooter at Robb Elementary School | Executive Summary xvi 

 This did not occur during the Robb Elementary shooting response, where there was a 77-minute gap between when officers first arrived on the scene and when they finally confronted and killed the subject. Several of the first officers on scene initially acted consistent with generally accepted practices to try to engage the subject, and they moved quickly toward classrooms 111/112 within minutes of arriving. But once they retreated after being met with gunfire, the law enforcement responders, including UCISD PD Chief Pete Arredondo—who we conclude was the de facto on-scene incident commander—began treating the incident as a barricaded subject scenario and not as an active shooter situation. 

As more law enforcement resources arrived, first responders on the scene, including those with specific leadership responsibilities, did not coordinate immediate entry into the classrooms, running counter to generally accepted practices for active shooter response to immediately engage the subject to further save lives. Instead, law enforcement focused on calls for additional SWAT equipment (which should not delay the response to an active shooter), requests for delivery of classroom keys and breaching tools (which may not have been necessary to gain entry), and orders to evacuate surrounding classrooms prior to making entry into classrooms 111/112.

In addition to the overall failure to appreciate the active shooter nature of the situation, responders also failed to act promptly even after hearing gunshots around 12:21 p.m., which should have spurred greater urgency to confront the subject but instead set off a renewed search for keys. 

There were also failures in leadership, command, and coordination. None of the law enforcementleaders at the scene established an incident command structure to provide timely direction, control, andcoordination to the overwhelming number of responders who arrived on the scene. This lack of structure contributed to confusion among responders about who was in charge of the response and how they could assist. Communications difficulties exacerbated these problems. Per UCISD policies, Chief Arredondo was the on-scene incident commander, but he lacked a radio, having discarded his radios during his arrival thinking they were unnecessary. And although he attempted to communicate with officers in other parts of the hallway via phone, unfortunately, on multiple occasions, he directed officers intending to gain entry into the classrooms to stop, because he appeared to determine that other victims should first be removed from nearby classrooms to prevent further injury. 

These failures may have been influenced by policy and training deficiencies. For example, recent training that UCISD PD provided seemed to suggest, inappropriately, that an active shooter situation can transition into a hostage or barricaded subject situation. And while many of the FOS had sufficient active shooter and incident command training, other key FOS responders lacked any active shooter training or incident command training. The vast majority of the officers from different law enforcement agencies had never trained together, contributing to difficulties in coordination and communication on the day of the incident. The lack of pre-planning hampered even well-prepared agencies from functioning at their best

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.