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December 3, 2017

SCOTUS with a set of intriguing big and small cases as it winds down 2017 oral arguments

This coming week, the Supreme Court has its last set of oral arguments before the end of the calendar year.  The case sure to get most of the mainstream press attention is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, with wedding cakes, religious liberty, same-sex marriage and free expression in the discourse. 

The three cases I will be watching most closely in the week ahead involve limits on federal preemption powers (Christie v. National Collegiate Athletic Association), attorneys fees in prisoner suits (Murphy v. Smith) and tax law obstruction requirements (Marinello v. United States).  The folks at SCOTUSblog have their always helpful argument previews posted for these cases, and here are links to these previews:

Christine v. NCAA:  Argument preview: The 10th Amendment, anti-commandeering and sports betting 

Murphy v. Smith:  Argument preview: Who should pay attorneys who win on behalf of prisoners? 

Marinello v. United States Argument preview: What limits tax law obstruction-of-justice charges? 

The federalism case is obviously the most consequential of this bunch and for many areas of law.  I helped a bit with this amicus brief discussing some of the potential criminal justice implications of these issues raised in Christie v. NCAA, and I will be quite interested to see whether and how the Justices during oral argument frame the discussion of these issues.

December 3, 2017 at 01:55 PM | Permalink


Anti-discrimination laws violate the Freedom of Assembly, and by Supreme Court precedent, the freedom of association implication of that Clause. Jim Crow laws violated that by preventing association. The anti-discrimination laws and litigation violate it by forcing association.

As to any higher governmental purpose, these laws have hideous and mortal effects on the protected classes. Hard to believe, but racial disparities in rates of social pathologies were small, before the Civil Rights Act. Black had rates 1-5% higher than whites, in unemployment, in bastardy, in crime victimization. After its enactment, the disparities widened to a full order of magnitude. The unemployment rate of the disabled jumped through the roof, after the passage of the American with Disabilities Act. With these sexual harassment stories, who would hire a female, not even a female employer. Hire a protected class member hire a total threat to the survival of the business.

If the Supreme Court fails to support the bakers, then a campaign should begin, where Alt-Right members go into gay bakeries, black bakeries, Muslim and Jewish bakeries, and demand highly offensive messages on cakes. If refused, sue the bakeries for discrimination against white supremacy ideology.

Posted by: David Behar | Dec 3, 2017 2:48:14 PM


It is nice to see you opine on something other than Sentencing. The brief states, " By parity of reasoning, Congress
likewise cannot prevent states from repealing state-law prohibitions on activity. Were it otherwise, Congress could force states to maintain laws that Congress could not have compelled the states to pass in the first place."

I'll play. Why is that result so anomalous? The interest that Congress have in preventing the repeal of a law are different than the interests Congress has in forcing states to pass a law in the first place. So parity of reasoning doesn't get one anywhere.

Gambling is a case in point. Imagine that Congress said "we are going to pass a law banning all interstate movements of money related to gambling under the Commerce clause." A group of states get together and say, "No don't so that. Because if you are going to take such a radical step we'd rather just pass laws at the state level." Congress goes, "OK. We'll leave it up to you." Then the states go, "Oh hah ha, we sure fooled you!" and then repeal their laws. It makes perfect sense to me for Congress to say, "no way Jose. You have to stick to the bargain you made. We couldn't force you to bargain the first place but we can force you to stick to your bargain". How does that violate federalism? It promotes federalism as far as I see it.

Posted by: Daniel | Dec 3, 2017 5:24:29 PM

This is a somewhat strange hypo, Daniel, but I will play because the key is aligning sovereignty so voters can have the proper control. Suppose it was, say, the outgoing gov of VA who made such a deal to prohibit something in 2016 in part based on the belief that such a prohibition was good for the state if/when Hillary Clinton became Prez. Now, circa 2017 and with a new gov coming in and Hillary NOT Prez, is it your view that new state officials are (forever?) stuck with state prohibition laws that earlier ones passed based on some supposed deal with Congress?

And how exactly do thousands of state legislators and hundreds of federal legislators strike and memorialize deals? Can you give me some examples of laws passed as part of such a deal? (Is Obamacare a version of these deals? Should state govs who signed off on state Medicaid expansion be forever stuck with that deal based on this peculiar theory that state/feds lawmakers are contracting parties?)

At the risk of keeping it (too) simple, I believe states can/should be in complete control of their laws, the feds in complete control of theirs. If the feds want to encourage the states to follow along, they can use the spending power to bribe them. But as I see it, concerns about sneaky deals notwithstanding, each state can, should and must have free reign to enact/repeal their own prohibitions (subject, of course, to constitutional limitations).

Posted by: Doug B | Dec 3, 2017 6:44:28 PM

SCOTUS doesn't grant cert. in sentencing case that received some coverage:


Posted by: Joe | Dec 4, 2017 9:53:10 AM

On Daniel's hypo, one key democratic principle is that -- with some limited exceptions -- today's government can't bind future governments. Most treaties and long-term contracts have some type of opt-out clause.

Christie is interesting because it's not really a preemption case. It's clear that the federal government can pass laws against any activity (as long as they can find a jurisdictional hook such as interstate conduct). Such laws (assuming that the federal government enforces them) effectively block any effort by the states to legalize the activity. All the states can do is remove the state criminal penalty from the activity. What Congress passed here is different. It tries to prevent the state from revising its own criminal laws. The past round clearly indicated that the federal government could and did preempt the field of regulated legalized gambling (barring New Jersey from regulating gambling in the state). This round is about whether New Jersey has to keep and enforce gambling laws. That's a much closer call. While the Tenth Amendment is often misused in arguments, this case really does seem to be about the powers reserved to the states -- the power to enact (and to repeal) their own laws.

Posted by: tmm | Dec 4, 2017 10:27:28 AM

"because the key is aligning sovereignty so voters can have the proper control."

The voters do have control because Congress is also elected by voters. The question isn't whether Congress MUST hold a state to its bargain, the question is whether Congress CAN hold the state to its bargain.

"And how exactly do thousands of state legislators and hundreds of federal legislators strike and memorialize deals?"

This done all the time. The most obvious example is mult-state compacts respecting water rights. However, it is also done occasionally in regards electricity generation as well. Now, whether the gambling issue has all the indica of a formal deal the way water rights are formally memorialized is a different question. But my rebuttal there is simply that I am not a formalist. FWIW water rights deals sometimes last hundreds of years and no one whines and complains about one legislature binding future legislatures forever.

"I believe states can/should be in complete control of their laws, the feds in complete control of theirs."

I have no respect whatsoever for the concept of dual sovereignty. It neither reflects reality nor the Founder intentions.

Posted by: Daniel | Dec 4, 2017 10:34:48 AM

Sounds like, Daniel, that you simply disagree with anti-commandeering principles and doctrines and this would be okay with Congress mandating that every state, say, assign at least 1000 state police officers to highway speeding enforcement or gun background checks or 1000 health workers encouraging healthy eating or abstinence. Don’t like this state lawmaker or citizen, vote out the prez in 3 years.

Posted by: Doug B. | Dec 4, 2017 10:52:58 AM

"states can/should be in complete control of their laws"

They aren't since there are certain federal limitations. Dual sovereignty is a thing .. up to a point ... so both sides are being unrealistically extreme here.

I'm basically in tmm's camp here -- think the 10A/11A is often used in an improper way but this sounds like a case where the argument has some bite. Not sure -- haven't read into the matter closely enough -- who should win, but it's an intriguing case.

Posted by: Joe | Dec 4, 2017 11:12:06 AM


"Sounds like, Daniel, that you simply disagree with anti-commandeering principles and doctrines"
Not in the least. How is enforcing a contract "commandeering"? Again, let's use your example of police. The Feds cannot willy nilly send the federal police to enforce state laws. But what happens if the state asks the federal government to do just that? If the state asks how is that "commandeering"? What you are saying is that the federal action can become commandeering if, in the eyes of the state, the feds overstay their welcome. That assumes what isambling. seeks to prove, however, because we need to figure out in the first case whether or not the Feds violated the terms of the initial request for help.

Same with gambling. We need to know why NJ passed the law it did in the first place. If it was part of a bargain with the Feds it can not renege on that bargain under the guise of federalism.

Posted by: Daniel | Dec 4, 2017 11:53:25 AM

Daniel, I am not against enforcing an actual express contract between state/fed or state/state, but that is not what this case is about at all. You keep talking about some "bargain" here, but I do not know what you are talking about in this context or others. Does the new tax bill include any "bargains" with states? Obamacare? The Controlled Substances Act? What are the so called "indica of a formal deal" and how does a voter or legislator figure this out?

I guess the reasonable parallel in the policing setting might be the creation of fed/state task forces like HIDTA (http://www.hidta.org/about-hidta/) in which the feds give money for coordinating some local drug policing/enforcement. It seems you are suggesting that if a state indicates a willingness to be involved in a HIDTA program in year 1 (a request for help), it must stay in that program indefinitely if the feds want to keep it going even if the state decides, based on experience, that it is a bad program for the state. And if the state does not like being forced to do something by the feds forever, its only remedy is to convince the whole country to vote out the feds.

More broadly, how/why are NJ voters supposed to know "why" the state passes this law or any other if it wants to repeal that law? Again, it seems like a strange and peculiar way to run a democracy to say that state voters need to know something about past state/federal (secret?) "deals" or "bargains" before being allowed to change its own laws.

Posted by: Doug B. | Dec 4, 2017 12:05:23 PM



Posted by: Joe | Dec 4, 2017 12:29:04 PM

Oh, wonder why this guy was never charged for refusing to bake a gay wedding cake: https://www.youtube.com/watch?v=RgWIhYAtan4

Posted by: Eric Knight | Dec 6, 2017 11:38:58 AM

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