Tuesday, January 04, 2005

States' Rights 

They're not just for slaveowners anymore! So says Dennis Herrera, city attorney of San Francisco, who here explains why beleaguered blue states should rush to embrace the New Federalism:
When Ronald Reagan used his 1983 State of the Union Address to foreshadow a sweeping proposal to devolve vast powers from the federal government back to states and localities, he described his New Federalism initiative as an effort "to restore to states and local governments their roles as dynamic laboratories of change in a creative society."

Liberal critics at the time regarded the New Federalism as a thin veiling for a full-scale federal retreat from progressive social policy -- which, of course, it was. In subsequent years, as successive Congresses grappled with mounting budget deficits and as the federal bench grew increasingly conservative, Reagan's efforts to return power to local governments would indeed take hold among his presidency's most enduring legacies.

To a Bush administration two decades later that appears taken aback by some of the consequences, then, it should probably have been predictable that the expanding spheres of responsibility that this New Federalism envisioned for state and local governments would give rise to a generation of progressive public-sector legal activists. Exemplified by such state attorneys general as New York's Eliot Spitzer and California's Bill Lockyer, the phenomenon has been mirrored at the local level by San Francisco's city attorney's office, whose own aggressive efforts to protect consumers, police the marketplace and expand civil liberties would have been unthinkable just two decades ago . . . .
  • Our investigation and lawsuit on behalf of the San Francisco school district blew the whistle on a nationwide scam to defraud the federal E-Rate program, which helps America's poorest school districts bridge the digital divide. The result: in May, a subsidiary of NEC pled guilty to bid rigging and wire fraud, and agreed to pay fines and restitution totaling $20.6 million.

  • We intervened as the nation's only municipality in seeking to strike down the Bush administration's federal ban on late-term abortion, successfully asserting a civic interest on behalf of the San Francisco Department of Public Health and San Francisco General Hospital as the public health-care providers of last resort for indigent women.

  • We filed the first litigation by a municipal government in American history to challenge the constitutionality of state marriage laws that discriminate against gay and lesbian couples. It is perhaps that issue more than any other on which the Bush administration has demonstrated its most glaring hypocrisy as heir to Reagan's New Federalism. In advancing a constitutional amendment that would ban same-sex marriage nationwide, President Bush is asserting a needless federal imperative over rights that have always been the purview of the states.
In fact, Reagan's vision of state and local governments "as dynamic laboratories of change" harks back to an earlier principle observed by U.S. Supreme Court Justice Louis D. Brandeis in his famous 1932 dissent in New State Ice Co. vs. Liebmann. "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country," Brandeis wrote. "If we would guide by the light of reason, we must let our minds be bold."
As history has consistently shown, the redneck right's commitment to the principles of federalism is inversely proportional to the power it wields in Washington. Exhibit A (courtesy of our esteemed colleagues at Simply Appealing):
Ashcroft v. Raich, which debates whether the federal government exceeded its authority to regulate interstate commerce by imposing national drug laws on state-sanctioned medical cannabis that is not sold, transported across state lines or used for nonmedicinal purposes, will have crucial implications for at least 30 pending federal marijuana cases. The cases all involve medical cannabis growers, patients and dispensary operators who were raided by federal agents in several of the 11 states that have legalized medical cannabis.

Ashcroft v. Raich also is considered important for those watching the debate over states' rights vs. federal authority.

But for Raich and Monson, the case is personal.

They want to be able to live their lives. Medical marijuana, they say, makes that possible. Raich, a 39-year-old mother of two teenagers, suffers from an inoperable brain tumor, wasting syndrome, tumors in her uterus, endometriosis and other ailments. She says medical marijuana is keeping her alive.

Monson, a 47-year-old accountant who lives in the Northern California town of Oroville, has suffered from a degenerative back disorder for 25 years. Without medical cannabis, she says, she would live, but in such excruciating pain that it would hardly be worth it.

Raich and Monson are worried. The public is sympathetic to their situations; polls show up to 80 percent of Americans approve of medical marijuana. But the federal government has remained steadfast against reclassifying marijuana and has repeatedly rejected applications from university researchers who want to study the drug as medicine. During the oral arguments, several Supreme Court justices raised skeptical questions, concerned that even small amounts of medical marijuana, obtained for free, were part of a national market for licit and illicit drugs -- and thus subject to federal regulations.
And Exhibit B (from our unsinkable colleague Rorschach at No Capital):
The Internal Revenue Service is warning same-sex couples that they cannot file joint income tax returns even if they were legally married in Massachusetts or Canada.

The IRS says it is basing its denial of joint filings on Federal DOMA which restricts marriage to opposite-sex couples.
(We strongly doubt that the IRS would base any sort of ruling on legislation that has not yet been enacted, but we are nonetheless quite certain that the issue will eventually wind up in court.)

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