Sandy

Jonathan Chait posts a persuasive argument explaining Why Democrats Are Right to Politicize Sandy. 

Funding for FEMA is something the parties wrangle over, with Republicans pushing to limit the agency’s budget, and Democrats pushing back. FEMA has to fight for its share of a constricted pot of money for domestic non-entitlement spending, a pot of money that the Republicans propose to radically constrict. How radically? Romney’s budget promises require shrinking domestic non-entitlement spending as a share of the economy by about two-thirds.

We should be a little careful with the language. I'm not seeing a lot of Democrats politicizing Sandy. I'm seeing a lot of Americans calling for common sense government that takes pragmatic steps to ensure the welfare of all of its citizens.

There is a choice in the 2012 election between a party that believes in this kind of cooperative effort and a party that wants to put a profit motive behind disaster response. Democrats generally believe that government is by and for the people of the United States to accomplish common goals. Republicans see government as something by other people and against their interests. Romney as a candidate said he would abolish federal emergency management and put it in the hands of security contractors. Romney as a governor vetoed funding for flood prevention.

The Republican party loudly complained that the government brought a halt to deep water oil exploration after the Deepwater Horizon blowout. Mitt Romney relied on oil company talking points during the second debate. When he claimed that oil production was down on 'federal lands,' the root talking point was that there was a drop in oil exploration in 2011 while the Administration finalized new rules to prevent repeating catastrophic failures. Romney has campaigned for the  last six years as the candidate who will put American corporate interests before the American people.

Romney said he doesn't support Federal emergency management, and implied it would be better handled if a profitable firm took over. The idea that Delaware or Louisiana even New Jersey should have to recover from a big storm without federal help is bad enough. The idea that they might contract out to Haliburton is terrifying.

It's no wonder that this sharp contrast between parties becomes evident when there is already a widespread mobilization of political forces before an unprecedented disaster. This is an historic storm. Republicans at large have been showing some awfully ambivalent attitudes toward FEMA and disaster aid this week, a sign of the tension between the tenets of the Republican Party and the need to avoid criticizing life saving operations.

Individual Rights and Federalism

I've been reading Judicial Policy Making and the Modern State by Malcolm Feeley and Edward Rubin, which investigates the 20-year period in which federal courts transformed state prisons around the country. It's a pretty fascinating story, but especially in their contention that this period of judicial policy-making amounted to a final rejection of federalism:

"In imposing national norms on the state prisons that were following distinctly different models, the courts were rejecting the essential principle of federalism. As stated, federalism is distinguished from decentralization because it allows governmental subunits to follow separate norms rather than simply following separate managerial strategies for achieving a single, centrally established norm. The prison cases decisively rejected the state's power to follow separate norms in prison administration."

The federal courts saw that prisons were across the nation were adopting standards of the American Penological Association and the Federal Bureau of Prisons' guidelines everywhere but in the deep South, where penal institutions were spitting-image imitations of antebellum plantations. Federal judges, first in Arkansas, then independently across the South, decided that prisoners' Eighth Amendment rights against "cruel and unusual punishment" were being violated by the Southern Plantation model of prisons. Judges assumed jurisdiction over prisons in defense of prisoners' rights, and in vary degrees, assumed ultimate administrative control over state prisions. Judges implemented hundreds of reforms, in some prisons going so far as to designate a minimum wattage of bulbs to be used in lamps and schedules for washing windows.

More All Power to the States

Steve Bennen over at the Washington Monthly takes Senate Republican Leader Mitch McConnell's plan to continue obstruction in the next Congress for a stroll. The minority leader has dedicated his caucus to refusing to compromise in the least part with Democrats in congress. So far, Republicans have voted no on Republican ideas so they could reap the benefits of a depressed economy, high joblessness, and a housing crisis by blaming the majority. McConnell in a National Journal interview has doubled down on the strategy of the last two years, promising to do the same for the next two.

"[W]e need to treat this election as the first step in retaking the government. We need to say to everyone on Election Day, 'Those of you who helped make this a good day, you need to go out and help us finish the job.' [...]

The single most important thing we want to achieve is for President Obama to be a one-term president.... Our single biggest political goal is to give our nominee for president the maximum opportunity to be successful."

Apparently "successful" means to have as few policy overlaps as possible with President Obama. That means that the Republican leadership will be attempting to hold together solid "No" blocks on every single major policy put forth in the next two years at the federal level. If McConnell gets his way, and he might, there will be very little that gets done in the 112th Congress. Some Republicans have already started foreshadowing a 1994 redux government shutdown While Benen implicitly is making the 'that's why you elect Democrats--or at least less partisan Republicans' argument, I think McConnell may be playing a deeper game here.

The Federal-State Conflict: Expecting Prop 19

As I hinted at in my last post on Prop 19, drug policy is not a simple federal-state issue. It has its own gray areas. One source of this confusion is &sec 903 of the Controlled Substances Act itself, which states

"No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together."

If the federal government decides to challenge the new legal cannabis regime in California, and I believe they will, they must show a positive conflict between the state law, which is prospectively entitled, "The Regulate, Tax, and Control Cannabis Act of 2010," and the Controlled Substances Act.

What is a positive conflict? Law professor Alex Kreit is paraphrased as saying is a condition in which an action of an individual necessarily would be inconsistent with one of the laws at issue. An individual would be caught between two law systems. Following one law would force her to violate the other. This is the preferred reading of the state-based pro-legalization legal community, as it would pretty much require that California require citizens to ingest marijuana for the state law to create a "positive conflict" with federal law.

Prop 19 Week at the Silly Season

This week is Prop 19 week. Polls anticipate a victory at the polls for California's Proposition 19, the ballot initiative which would legalize marijuana for recreational use across the State. Legalizing a drug that is prohibited under the Federal Controlled Substances Act is certainly a novel problem in federal-state power dynamic. In Gonzales v. Raich the Supreme Court announced that the fact that medical marijuana was recognized by California law did not affect Congress's power to regulate the plant under the Commerce Clause or the DEA's power to prosecute Cannabis growers by grant of authority from Congress. Left unanswered in Raich is the question of whether the States have an active duty to enforce federal law.

To answer this question, I turned to some law journal comments from the end of Prohibition. In support of the 18th Amendment's constitutional ban on "intoxicating liquors", the U.S. Congress drew up the Volstead Act, which criminalized the transportation and sale of alcohol. The Volstead Act established criminal penalties and provided for an enforcement agency. States enacted their own mini-Volstead acts to allow their own law enforcement officers to pursue the goal of temperance with local resources. The laws creating state crimes for alcohol allowed perpetrators to be brought to court in state courts. Whereas state judges may take cognizance of federal remedy laws in civil disputes, they cannot impose federal sentences on perpetrators of purely federal crimes. State courts lack the jurisdiction to hear federal criminal cases. This was the case in 1932 before the repeal of prohibition, and it is the case now under U.S. Code Title 18 Part 2 Chapter 211 § 3231.

California Gov. Arnold Schwarzenegger signed a bill into law last week downgrading possession of marijuana from a misdemeanor to an infraction. Despite the light sentence that California law currently holds for marijuana possession ($100 fine for possession of up to 1 ounce), many misdemeanor defendants demanded a jury trial. The costs of these jury trials far outweighed whatever benefits the state found in continuing to charge cannabis possessors with misdemeanors. This bill has already removed the vast majority of state prosecutions of recreational marijuana users from the state courts.