Richman and Seo on Federalism and the FBI

Daniel C. Richman and Sarah Seo, Columbia Law School, have posted How Federalism Built the FBI, Sustained Local Police, and Left Out the States, which is forthcoming in the Stanford Journal of Civil Rights and Civil Liberties 17 (2021):

Diplomacy Ceremony, National Police Academy (LC)

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial for understanding why the police have gone for so long without meaningful state or federal oversight, with consequences still confronting the country today. This history highlights how structural impediments to institutional accountability have been set over time and also identifies a path not taken, but one that can still be pursued, to expand the states’ supervisory role over local police.

--Dan Ernst

Green on the Three Commerce Powers

Christopher R. Green, University of Mississippi School of Law, has posted Tribes, Nations, States: Our Three Commerce Powers:

This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but “States” of territory, then “Commerce … among the several States” must cross state lines, even though small, local transactions between Americans and non-citizens are commerce “with foreign Nations” or “with the Indian tribes.”

Why think that? There is considerable evidence that the tribal commerce power replaces “trade … with the Indians” in the Articles of Confederation, but early direct definitions of the other two commerce powers are surprisingly rare. Antifederalists complained at length that the power to tax for the general welfare would make the federal government all-powerful, but not so about the commerce power which largely did the job after 1937. In January 1788, Federal Farmer 11 described the foreign commerce power as “trade and commerce between our citizens and foreigners.” Elbridge Gerry restated it in 1790 as “trade with foreigners.” Jefferson and Randolph’s 1791 bank objections defined foreign and tribal commerce as commerce with non-citizens. Martens’s 1788 international-law treatise explained “commerce … with foreign nations” as including “power over the foreigners living in its territories.” The 20-year slave-trade protection presupposes broad foreign commerce power, but narrow interstate commerce power: Congress may control “migration,” but not domestic slavery or other labor conditions. The earliest attacks on federal power over non-citizens’ commerce discussing the 1794 Jay Treaty and 1798 Alien Act were internally inconsistent. Despite lots of its own inconsistency, the Supreme Court adopted this view in 1866 in United States v. Holliday.

Why care? Broad foreign and tribal commerce powers undermine the late-nineteenth-century motivation for unenumerated “plenary” powers over foreign affairs or tribes; a limited interstate commerce power allows “powers not delegated to the United States by the Constitution” to refer to something. The tribal commerce power likewise supports the Indian Child Welfare Act’s regulation of the transfers of tribal-member custody. Congress’s 1870 protection of non-citizens’ occupational and contracting rights and 1986 prohibition on employment discrimination rest on its foreign commerce power, not the Fourteenth Amendment; Congress may regulate non-citizens’ labor conditions, but not labor conditions generally. Antidiscrimination law can then refocus on equal citizenship — the Privileges or Immunities Clause for states and fiduciary principles for the federal government — instead of historically-less-plausible rights for all humanity. Cases like Graham v. Richardson would turn on pre-emption, and three gaps in antidiscrimination law — federal citizenship classifications in Mathews v. Diaz, governmental functions in Ambach v. Norwick, and tribal classifications in Morton v. Mancari — receive possible justification.

 -Dan Ernst

Green on Erie's Fall and Rise

Craig Green, Temple Law, has posted Erie and Constitutional Structure: An Intellectual History, which appeared in the Akron Law Review 52 (2019):

This essay celebrates Erie's 80th birthday by charting the decision's extremely dynamic significance as a constitutional decision. Newly collected historical evidence shows that "original Erie" was criticized as constitutionally heretical in the 1930s and 1940s . The decision rose to power only in the 1950s and 1960s, carried forward on the powerful legal-process shoulders of Hart and Wechsler. During the 1970s and 1980s, Erie was pushed toward the periphery of constitutional law along with the legal process school itself. Yet in the 21st century, Erie rose from the ashes as political conservatives articulated a forceful "new Erie" myth about separation of powers.

The fact that Erie's multiple meanings are so often conflated or ignored reveals a correspondingly prevalent inattention to methods of interpreting precedents. As a matter of legal theory, iconic court decisions offer legal mixtures of stability and dynamism, of legitimacy and politics, that are analogous to statutes, constitutions, and other forms of law. Erie's birthday offers an especially useful chance to think about the untapped possibilities of "precedential originalism" or "living precedentialism," alongside interpretive schools that are well known in other legal contexts.

--Dan Ernst

George Washington's Legacy - Not What People Think

2016 has been an acrimonious year election-wise in the United States and I've noticed a trend in this particular election to generate memes like the one above.  In it we see George Washington scolding the United States population for some sort of vague "make your government more what you want it to be" without actual specifics.  For me, this meme implies that George Washington would find the current United States federal government, and its actions, unacceptable and challenges the citizens of the United States to "step up" and take back their government.  Which to me is taking the actual presidency of George Washington, and its legacy, and corrupting it.  Because George Washington as President faced off against the very sort of action this meme espouses, and he did not take kindly to it at all.

This glorious painting is from 1791 during the Whiskey Rebellion, and the figure on the horse is George Washington leading a combined force of United States federal troops and local state militia units on an expedition to disband an armed rebellion against a tax law passed by the United States Congress.  The Whiskey Rebellion formed in reaction to the high debt held by the federal government after the Revolutionary War, in which the federal government absorbed individual state debt along with its own.  Import duties, it was felt by Alexander Hamilton, Secretary of the Treasury, could not be raised higher and a tax on a domestic product was needed.  Distilled spirits became the target of the new law, it was seen as a "sin tax" and Hamilton, along with Washington, felt that the tax would spark the least anger of any taxed domestic industry.  They did not figure with the anger of farmers living in the western portions of the United States at the time, in particular western Pennsylvania, who felt this tax violated their traditional rights and position.

Distilling spirits was seen by western farmers as a legitimate means of storing surplus grain and generating a valuable product for sale in eastern markets.  Whiskey was also used as a means of currency in the region, so this effort to tax farmers for making whiskey was widely seen as a new form of "taxation without representation."  Rebels in the region rose up, attacked tax collectors, and refused to pay the tax.  Many claimed they were defending the spirit and principles of the American Revolution.  Hell many of them were veterans of the American Revolution.  Washington strongly disagreed and although he sent out peace delegates to deal with the rebels, he also marched out with an army to disperse them.  The Whiskey Rebellion collapsed and the right of the federal government to tax internally was defended, by Washington, against individuals rising up to defend the spirit of the revolution - a.k.a. traditional limited federal government.

But hang on, because evidence is even more present in Washington's economic policies.  Although he attempted in his first term as President to stand neutral between two rival factions, Hamilton and Jefferson, who respectively wanted a larger federal role in the economy and a lesser federal role (Jefferson and his yeoman farmers concept) - Washington leaned in Hamilton's direction.  By his second term Washington fully agreed with Hamilton's ideas about a broader federal government and used his executive powers, along with raising support in Congress, for new laws that expanded the role of the federal government in the domestic economy of the United States.  This included controversial actions like creating a Bank of the United States, strong investments in infrastructure, and tariffs to protect rising domestic industry.  It even involved direct federal investment in the creation of local factories, a level of federal involvement today that makes many scream.

Overall Washington was not the man depicted in the first meme at the top of this post, he was actually as President a strong believer in a firm, well organized, fiscally involved federal government that firmly held in its hand a whip to coerce those who would rise in rebellion.

Sources:  Wikipedia articles on George Washington's Presidency and the Whiskey Rebellion