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Wednesday, March 23, 2005

"Discounting Federalism" in Cutter and Schiavo?

Chris Geidner at Law Dork responds here to my (quick) critique of the federalism arguments of Cutter. I figured this would be an interesting thing to think/post about in light of both my post and T. More's defense of the Schiavo jurisdiction statute.

First, I wonder what Chris means by "discounting federalism." It can't mean that we are somehow judging federalism on its merits to somehow be inadequate in a certain sense. My post was not that federalism fails to inadquately deal with federal imposition of religious norms on state prisons, and T. More was not arguing that the constitutional bars to federal intervention do not adequately protect Terri Schiavo's due process right to life. It also can't be that federalism produces bad results in this case, and should therefore be modified/done away with. Both of our arguments were framed within the court's federalism jurisprudence.

My argument in Cutter is that this statute was carefully and masterfully crafted to avoid every single federalism objection. In order for it to validly apply to a state that has not accepted federal funds, and therefore is not caught under the spending clause hook, the statute requires a "jurisdictional element" that requires proof of effect on interstate commerce. Thus, Congress went beyond something like a severability clause that would sever unconstitutional applications of the statute, and enacted the statute that doesn't even require severance--it doesn't even reach those applications.
One counter-argument here may be a sort of modified-overbreadth argument that the applications of this statute that has an effeect on interstate commerce is virtually a null set, and that this statute may be inappropriately "chilling" conduct. But I didn't see this argument anywhere.

The spending clause argument is closer, I think. And my argument was not normative in the sense that this case would pass under my "ideal" spending clause. My argument was only that I see no basis under the Court's precedent for the argument. You've got to do the Dole analysis, and the only place to get it thrown out is under relatedness. How is spending money on prisons not related to the religious rights of those in the prisons? Unless you're willing to require Congress to enumerate very specifically where every dollar is supposed to go, and then require that those dollars be used for exactly why they were given, this reading of the spending clause doesn't work.
The better spending clause argument is that we shouldn't even get here in the first place. The federal government shouldn't have access to all these funds such that they can "control" states in this way. If Ohio residents just paid the chunk of their federal taxes that gets sent back to their own state prisons directly to the state, then we wouldn't have this problem. States are in the best position to make the vast, vast majority of these decisions, and they shouldn't have to double tax their citizens to be able to run their prisons the way they think they should.

Similary, the argument in Schiavo is that congress always regulates the jurisdiction of federal courts. McCulloch. And that is all that is happening here. There was no guarantee that the federal courts would show any more sympathy, and they so far have not shown any. These federal courts that hear the case are still (I assume) required to apply Younger and Rooker-Feldman, but congress can always give statutory jurisdiction for courts to hear the cases.

Chris' argument has to be that since we are so "committed" to federalism, we should not be engaged in critiquing it. That, to me, is silly. Federalists, like anyone else, make good and bad arguments, and I see no reason why I have to defend the bad ones just because I agree with the general principle.

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