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Friday, July 03, 2009

Sarah Palin's Federalism

In the speech announcing that she would be stepping down as Alaska governor by the end of July, Gov. Sarah Palin cited several accomplishments by her administration. One that she noted may be of particular interest to those who identify with a federalist philosophy of the Constitution:
Another accomplishment – our Law Department protected states’ rights – two huge U.S. Supreme Court reversals came down against that liberal Ninth Circuit, deciding in our state’s favor over the last two weeks. We’re protectors of our Constitution – federalists protect states’ rights as mandated in 10th amendment.
The two decisions of which she spoke presumably are District Attorney's Office for the Third Judicial District v. Osborne and Coeur Alaska, Inc. v. Southeast Alaska Conservation Council.

Osborne has received significant attention because the use of DNA to prove actual innocence has become so popular and created public interest in the possibility of reducing the likelihood that an innocent person will go to prison for crimes another person committed. The case implicates federalism because Osborne claimed that he had a federal constitutional right under the Due Process Clause to have access to the physical evidence used to convict him, so that he may at his own expense test the DNA found and prove whether it is his.

The Ninth Circuit held that he had such a right; a 5-4 majority of the Supreme Court reversed the Ninth Circuit and said that he did not. Chief Justice Roberts's opinion for the Court invokes federalism, saying that Alaska's courts and especially legislature should determine the conditions under which defendants may have post-conviction access to evidence: "the asserted right to access DNA evidence is unrooted in history or tradition, and would thrust the Federal Judiciary into an area previously left to state courts and legislatures."

So while the 10th Amendment was not explicitly cited in Osborne, the case certainly may be considered to concern states' rights to set post-conviction procedures for new technology without being constrained by federal due process rights.

However, Gov. Palin's reference to Coeur Alaska as a federalism case is puzzling. The case is based on a narrow, rather boring question of statutory and regulatory law, with no reference to the Constitution. The heart of the dispute was over whether a particular permit should be obtained from the U.S. Army Corps of Engineers or the Environmental Protection Agency. Unlike a genuine federalism case such as Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001), in Coeur Alaska there is no question whether the federal Clean Water Act applies to a particular body of water. The only question is from which federal agency the federal law directs one to get a permit to dump waste.

That a 6-3 majority of the Supreme Court held that the correct agency was the Army Corps of Engineers hardly constitutes a victory for states' rights. That the Army Corps of Engineers gives permits for waste-dumping more easily than the EPA may provide a practical victory, but once the federal government has been held to have jurisdiction over something -- a commercial transaction, a criminal act, a lake -- federalism already has lost.

Incidentally, Polar Tankers, Inc. v. City of Valdez, Alaska also was decided last month, but it is unlikely to be mentioned with pride by Gov. Palin for a few reasons, despite having much more of a federalism component than Coeur Alaska.

1) It involved an Alaskan municipal government wanting to impose more taxes.
2) The Alaska Supreme Court got reversed.
3) The Alaskan city government lost at the U.S. Supreme Court, because the Court found that the local tax violated the federal Constitution.

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